Biren Jundi vs State Of Orissa
2023 Latest Caselaw 11859 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK
                   CRLA No.462 of 2012
      In the matter of an Appeal under Section 374(2) of the Code of
      Criminal Procedure and from the judgment of conviction and
      order of sentence dated 23rd July, 2012 passed by the learned
      Sessions Judge, Phulbani in Sessions Trial Case No.129 of 2011.



    Biren Jundi                           ....          Appellant
                               -versus-
    State of Orissa                       ....          Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

            For Appellant      -     Mr.D.P.Dhal,
                                     Sr.Advocate.

            For Respondent     -     Mr.S.K.Nayak,
                                     Additional Government Advocate.
            CORAM:
            MR. JUSTICE D.DASH
            MR. JUSTICE A.C.BEHERA

Date of Hearing :12.09.2023 :: Date of Judgment : 03.10.2023

A.C. Behera, J. The Appellant preferring this Appeal has called in question the judgment of conviction and order of sentence dated 23rd July, 2012 passed by the learned Sessions Judge, Phulbani in Sessions Trial Case No.-129 of 2011 arising out of G.R. Case No.38 of 2011 corresponding to G. Udaygiri P.S. Case No.15 of

CRLA No.462 of 2012 {{ 2 }}

2011 of the Court of learned Judicial Magistrate First Class, G. Udaygiri.

The Appellant (accused) has been convicted for commission of offence U/s 302 of the IPC, 1860 (for short IPC) and has been sentenced to undergo imprisonment for life and pay a fine of Rs.20,000/-(rupees twenty thousand) in default to undergo R.I. for one year.

2. Prosecution Case:-

On 17.02.2011, night at about 11 P.M., the accused assaulted deceased Santosh Barik by means of a wooden lathi on the public road running in front of Tahasil Office at G. Udaygiri and brought him dragging forcibly towards Jagannath Temple while further assaulting. After seeing the same, the younger brother of the deceased i.e. P.W.4 informed that matter to his father. Then, his father i.e. P.W.1 immediately, came to the spot with P.Ws. 2, 3 & 4 and found that, the accused was assaulting deceased on the road and by the result of which, the deceased had sustained multiple injuries on his person. Seeing P.Ws.1, 2, 3 & 4, the accused fled away from that spot.

Thereafter, the injured (deceased) having been shifted to the G.Udaygiri Hospital by P.Ws.1 to 4 for his treatment, the doctor declared him (deceased) dead.

On its next day, the father of Santosh the deceased i.e. Jagdish Barik (P.W.1) lodged F.I.R. (Ext.1) before the Officer In

CRLA No.462 of 2012 {{ 3 }}

Charge (OIC), G. Udaygiri P.S. as to the above incident that the accused intentionally caused the death of Santosh.

3. Basing upon such F.I.R.(Ext.1), the O.I.C., G. Udaygiri Police Station registered G. Udaygiri P.S. Case No.15 of 2011 and took up the investigation of the case.

4. During investigation, he (I.O.) examined the informant and witnesses, visited the spot, prepared the spot map (Ext.9). He held inquest over the dead body of the deceased, prepared the inquest report (Ext.2) and sent the dead body of the deceased to C.H.C., G. Udaygiri for postmortem examination by issuing dead body challan. The incriminating articles being seized; the I.O. arrested the accused and seized two pieces of broken lathi pursuant to the disclosure statement of the accused. The accused was then sent for his medical examination and forwarded in custody to the Court. He (I.O.) received the postmortem examination report of the deceased vide Ext.8 and made a quarry by sending the seized offence in order to ascertain, whether the injuries on the person of the deceased as per postmortem report (Ext.8) could have been possible by the seized weapon. The report (Ext.12/1) was received. The I.O. then sent the seized articles to S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination as per the order of the Court.

5. On completion of the investigation, the I.O. submitted Final Form placing the accused to face the trial for the commission of offence U/s 302 of the IPC, 1860.

CRLA No.462 of 2012 {{ 4 }}

6. Learned J.M.F.C., G. Udaygiri, having received the Final Form as above, took cognizance of the said offence U/s 302 of the IPC, 1860 and after observing the formalities, committed the case to the Court of Sessions Judge, Phulbani for trial. That is how, the trial commenced in the Court of Sessions Judge, Phulbani by framing charge for the said offence U/s 302 of the IPC against the accused.

7. In the trial, prosecution examined in total ten (10) witnesses. P.W.1 is the father of the deceased and he is the informant. P.W.4 is the brother of the deceased and son of P.W.1, whereas P.W.7 is the brother of P.W.1. P.Ws.2, 3 & 8 are the local persons. P.W.5 is the ASI, P.W.6 is the constable, they (P.W.5 & 6) too are the witnesses to the seizures. The doctor, who conducted autopsy over the dead body of the deceased, is P.W.9 and P.W.10 is the I.O, who submitted Final Form on completion of the investigation.

The prosecution, besides leading the evidence by examining the above ten witnesses, has also proved several documents (Exts.1 to 14) which include the F.I.R., inquest report, spot map, postmortem report and quarry report.

The plea of the defence was one of complete denial and false implication.

8. The Trial Court on going through the evidence of the prosecution witnesses and scrutinizing the same has held that,

CRLA No.462 of 2012 {{ 5 }}

prosecution has established the charge against the accused beyond reasonable doubt.

9. Learned counsel for the Appellant/accused while not disputing as has been held by the Trial Court inviting our attention to the depositions of P.Ws.1 to 4 and to the homicidal nature of death of the deceased contended that, the Trial Court ought to have convicted the accused for the offence under Section 304-I of the IPC, but not under Section 302 of the IPC. Accordingly, he argued for modification of the conviction and appropriate order of sentence.

10. On the contrary, the learned Additional Government Advocate for the State contended in support of the impugned judgment of conviction and order of sentence passed by the Trial Court by arguing that, with the evidence of P.Ws. 1 to 4 coupled with the evidence of the doctor (P.W.9) and I.O. (P.W.10) when it is clear that, the death of the deceased was homicidal resulting from the injuries caused by the accused through successive blows by lathi, the impugned judgment of conviction and order of sentence passed against the accused by the Trial Court holding him guilty of commission of the offence under section 302 of the IPC is not to be interfered.

11. It appears from the evidence of the doctor (P.W.9) as also from the postmortem examination report (Ext.8) that, the cause of death of the deceased was due to the injuries on his head, chest and abdomen as well as rapture of lever and massive

CRLA No.462 of 2012 {{ 6 }}

intraparitonial hamohhrage resulting from multiple ante mortem injuries.

12. P.W.1 has deposed that, when he rushed to the spot after hearing about the incident with Manoj (P.W.4), Lulu (P.W.3) and Kishor (P.W.2), he noticed that, the accused was assaulting his son (deceased) by lathi and while the deceased was lying on the ground, they raised shout as <Marijiba Chhadidia Chhadidia= and then the accused went away. Thereafter, he (P.W.1) along with P.Ws.2, 3 & 4 took the deceased to the hospital, wherein, the doctor declared him dead=.

13. P.W.4 the son of P.W.1 i.e. Manoj has stated on oath that, <the occurrence took place on 17.02.2011 at about 10:55 p.m. At that time, he was coming from the bazar side towards G. Udaygiri Bar Association side. Near the Bar Association of G. Udaygiri, he saw that, the accused was abusing his deceased brother and assaulting by hand. Thereafter, the accused brought out a wooden stump and assaulted his deceased brother and took him towards Jagannath Temple junction. When he intervened, the accused dealt a blow by the said stump on his left hand, for which, he went to his house and called his father (P.W.1) and thereafter, he (P.W.4), his father (P.W.2) and others came to the spot. When they came to the spot, they saw that, the accused was assaulting his deceased brother by the wooden stump and as they raised shout, the accused went away leaving the deceased there.

14. P.W.2 has also deposed in the same vein as that of P.W.4.

CRLA No.462 of 2012 {{ 7 }}

15. It is the version of P.W.3 (Santosh Kumar Sahoo) that, the occurrence took place on 17.02.2011 at around 10:45 p.m. to 11 p.m. and then he was present in his battle shop. According to his evidence, the accused came and picked up quarrel with the deceased and assaulted him with a wooden lathi and took him towards Jagannath Temple junction by further assaulting him.

16. On a conjoint reading being given to all the above evidence of P.Ws. 1 to 4 and viewing the same with the evidence of doctor and his report (Ext.8) while concurring with the finding of the Trial Court that, the accused is the author of the injuries found on the body of the deceased, we, however, find that, the incident was the outcome of quarrel and scuffle between the accused and the deceased in late night on the public road and the prosecution has not placed any cause as to the quarrel which tends to show that the genesis of the incident was not correctly placed. In view of all the aforesaid and viewing those cumulatively, we are of the view that, the offence committed by the accused can be categorized as one punishable under Section 304-I of the IPC, 1860. Therefore, we are inclined to modify the impugned judgment in convicting the accused for the offence punishable under Section 304-I of the IPC.

17. Accordingly, the accused is convicted for the commission of the said offence under Section 304-I of the IPC and sentenced him undergo R.I. for ten years and pay fine of Rs.10,000/- (rupees ten thousand) in default to undergo R.I. for six months.

CRLA No.462 of 2012 {{ 8 }}

18. The Appeal is accordingly allowed in part with the above modification of the judgment of conviction and order of sentence dated 23rd July 2012 passed by the learned Sessions Judge, Phulbani in S.T. Case No. 129 of 2011.

(A.C. Behera), Judge.

                   D. Dash, J.            I Agree.

                                                                         (D. Dash),
                                                                           Judge.




                   Orissa High Court, Cuttack.

The 3rd October, 2023//Utkalika Nayak// Junior Stenographer

Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 05-Oct-2023 14:51:56

CRLA No.462 of 2012