In The Matter Of An Appeal Under ... vs State Of Odisha
2023 Latest Caselaw 12158 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                          JCRLA NO.30 OF 2013

    In the matter of an Appeal under section-383 of the Code of
    Criminal Procedure, 1973 and from the judgment of
    conviction and order of sentence dated 17th October, 2012
    passed by the learned Adhoc Additional Sessions Judge,
    (FTC), Padampur in C.T. (Sessions) Case No.243/85/89 of
    2011.
                                 ----

....

        Manohar Bariha                                   Appellant
                                    -versus-

        State of Odisha                        ....      Respondent

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

===================================================== For Appellant - Mr. R.N. Nayak, Advocate.

                For Respondent -          Mr. P.K. Mohanty,
                                          Additional Standing Counsel.
            CORAM:
            MR. JUSTICE D.DASH
            MR. JUSTICE A.C. BEHERA

DATE OF HEARING :03.10.2023 : DATE OF JUDGMENT: 09.10.2023

D.Dash,J. The Appellant, by filing this Appeal from inside the jail,

has assailed the judgment of conviction and order of sentence

dated 17th October, 2012 passed by the learned Adhoc

Additional Sessions Judge, (FTC), Padampur in C.T. (Sessions)

JCRLA No.30 of 2013 {{ 2 }}

Case No.243/85/89 of 2011 arising out of G.R. Case No.304 of

2011 corresponding to Paikmal P.S. Case No.86 of 2011 of the

Court of learned Sub-Divisional Judicial Magistrate (S.D.J.M.),

Padampur.

The Appellant (accused) has been convicted for

commission of offence under section-302 of the Indian Penal

Code, 1860 (for short called as 'the IPC'). Accordingly, he has

been sentenced to undergo imprisonment for life and pay fine

of Rs.3,000/- in default to undergo rigorous imprisonment for

three months.

2. Prosecution case is that one Basudeb Pradhan (P.W.6)

with his wife Basa Pradhan and sons Jitaranjan Pradhan

(P.W.7) and Chitta @ Chittaranjan Pradhan (deceased) were

living in their residential house situated in village Bhoi Pada

of Paikmal. On 20.08.2011, during noon-hours, Basudeb went

to his agricultural land and his wife Basa had gone there prior

to him. When Basudeb left his house, Jitaranjan (P.W.7) and

his brother Chittaranjan (deceased) were in the house. One

Prasanta Bhoi (P.W.5) came and called Chittaranjan. So,

Chittaranjan went with Prasant to his agricultural land. When

Prasanta and Chittaranjan were gossiping near the land of

Prasant, it was around 2 pm, accused Manohar Bariha arrived

there and he started abusing Chittaranjan in filthy languages.

It was stated that accused assaulted Chittaranjan by giving fist

JCRLA No.30 of 2013 {{ 3 }}

blows. As a result of that, he fell down and it being on the

agricultural land, when Chittaranjan fell down, his wearing

apparels were got soiled with mud. Chittaranjan then went to

the nearby Chatendunguri tank for cleaning his wearing

apparels. The accused however followed him and it was said

that in the tank, accused again assaulted Chittaranjan

(deceased) by putting him down in the tank water which led

to his loss of sense.

Receiving such information, Jitaranjan (P.W.7) with

others brought Chittaranjan from the tank and shifted him to

Paikmal Government Hospital where he was declared dead.

Basudeb Pradhan, the father of the deceased Chittaranjan,

then lodged the written report (Ext.3) before the S.I. of Police,

Paikmal Police Station, who in the absence of the Officer-in-

Charge, was discharging the duty as such. Receiving the said

written report (Ext.3) from P.W.6, the S.I. of Police (P.W.11)

treated the same as F.I.R. and registering the case, took up

investigation.

In course of investigation, the I.O. (P.W.11) examined

the Informant (P.W.6). He then proceeded to Chatendungri

tank and seized the incriminating articles found lying nearby.

He also prepared the spot map-Ext.6. He then examined other

witnesses and arrested the accused. He also held inquest over

the dead body of the deceased and prepared inquest report

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(Ext.1). He also seized one litre of water of the Chatendungri

tank in presence of witnesses and kept the same in one glass

bottle under seizure list-Ext.4 and seized the wearing apparels

of the deceased. The I.O. (P.W.11) then sent the dead body of

the deceased for postmortem examination. The seized articles

were sent for chemical examination through Court. On

completion of investigation, the I.O. (P.W.11) submitted the

Final Form placing this accused-Manohar Bariha to face the

trial for the offence under section-302 of the IPC.

3. The learned S.D.J.M., Padampur having received the

Final Form as above, took cognizance of said offence and after

observing the formalities, committed the case to the Court of

Sessions. That is how the Trial commenced by framing the

charge for the said offence against the accused.

4. In the Trial, the prosecution has examined in total eleven

(11) witnesses. Out of whom, as already stated that the

Informant, who is father of the deceased and had lodged the

F.I.R. (Ext.3) is P.W.6, P.W.7 is another son of P.W.6 and

brother of the deceased (Chittaranjan), P.W.5 is the friend of

the deceased and P.W.8 is a co-villager, who are the eye

witnesses to the occurrence; whereas P.W.9 is the Doctor, who

had conducted autopsy over the dead body of the deceased.

The I.O. has come to the witness box at the end has been

examined as P.W.11.

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5. The prosecution besides leading the evidence by

examining the above witnesses has also proved several

documents, which have been admitted in evidence and

marked as Exts.1 to 10. Out of those, as already stated the

F.I.R. is Ext.3 whereas the inquest report is Ext.1, postmortem

examination report, Ext.2. The spot map has been admitted in

evidence and marked Ext.6, whereas diatomic test and viscera

report is marked as Ext.10.

6. The plea of the defence is that of complete denial.

However, no evidence has been tendered from the side of the

accused during the trial.

7. The Trial Court upon analysis of evidence on record and

placing reliance upon the evidence of the eye witnesses P.W.5

and 8 and the medical evidence coming from the lips of P.W.9

has concluded that the prosecution has proved the charge

against this accused as to have intentionally caused the death

of Chittaranjan by assaulting and drowning him beyond

reasonable doubt. Accordingly, the accused having been

convicted for commission of offence under section-302 of the

IPC, he has been sentenced as aforestated.

8. Learned Counsel for the Appellant (accused) without

questioning the nature of death of Chittaranjan to be

homicidal as has been held by the Trial Court basing upon the

evidence of Doctor, P.W.9, who had conducted postmortem

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examination of the dead body of Chittaranjan, the I.O.

(P.W.11), who held inquest over the dead body of the

deceased and other witnesses, who had seen the deceased in

an injured condition, confined his submission on the question

of alteration of conviction to one under section-304-I of the

IPC from section-302 of the IPC as has been fixed by the Trial

Court. He submitted that even accepting the prosecution

evidence with regard to the role played by the accused and

the acts done, the Trial Court ought not to have held the

accused guilty for commission of offence under section-302 of

the IPC. According to him, the evidence on record would

reveal that there was no prior planning behind the incident,

the accused and the deceased had quarreled and they fought

with each other, when the accused was also not holding any

weapon. In view of all these above, he contended that keeping

in mind that the parties hail from rural background, mostly

having high temper showing abnormal and unexpected

behavior in silly matters; the Trial Court ought not to have

convicted the accused for commission of the offence under

section-302 of the IPC. In this connection, he has invited our

attention to the depositions for all those witnesses and also the

F.I.R., Ext.3. He thus urged for modification of conviction to

one under section 304-I of the IPC and appropriate reduction

of sentence.

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9. Learned Counsel for the Respondent-State submitted all

in favour of the finding of the Trial Court holding the accused

guilty for commission of the offence under section-302 of the

IPC. He contended that the accused having assaulted the

deceased and drowned him in the tank, the offence committed

by the accused would stand categorized under section-302 of

the IPC.

10. Keeping in view the submissions made; we have

carefully gone through the judgment passed by the Trial

Court and we have also extensively travelled through the

depositions of the prosecution witnesses i.e. P.Ws. 1 to 11 and

have perused the documents which have been admitted in

evidence and marked as Exts.1 to 10.

11. Addressing the submission of the learned Counsel for

the accused, let us first have a look at the evidence of the

Doctor (P.W.9), who had conducted postmortem examination

over the dead body of the deceased. It is seen that he had

noticed the abrasions; one over the front of right lower chest

and two others over the back of right elbow. His finding is

that the death was homicidal and on account of being forcibly

drowned. With such medical evidence, we find the evidence

of P.W.3, who has stated to have seen the accused assaulting

the deceased inside the water of the tank. It is also his

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evidence that he was told by Prasanta (P.W.5) that accused

and the deceased were the quarreling.

P.W.4 has stated that first accused and deceased

quarreled and thereafter in Chatendunguri tank, accused was

found assaulting the deceased. P.W.8 has stated that when he

with others went to the Chatendunguri tank and there he saw

the accused too giving a push to the deceased which resulted

the fall inside the water of the tank. He has further stated that

accused was then abusing the deceased.

A careful reading of the evidence of above witnesses

reveals that they are suppressing some other happenings

between the accused and the deceased near that tank. It is also

not the prosecution case that the accused had gone there

carrying any weapon and the witnesses say that the accused

was using his hands in assaulting the deceased.

Having carefully considered all above circumstances

emerging from the evidence, we are of the considered view

that the offence can be properly categorized as one punishable

under section 304-I of IPC. Therefore, we are inclined to

modify the impugned judgment of the Trial Court in

convicting this accused for the offence punishable under

section-302 of IPC and instead the accused is convicted for the

offence punishable under section 304-I of IPC. Accordingly,

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the accused is sentenced to undergo rigorous imprisonment

for a period of ten (10) years.

12. The Appeal is accordingly allowed in part. With the

above modification of the judgment of conviction and order of

sentence dated sentence dated 17th October, 2012 passed by the

learned Adhoc Additional Sessions Judge, (FTC), Padampur

in C.T. (Sessions) Case No.243/85/89 of 2011, the Appeal

stands disposed of.

-

(D. Dash), Judge.

Mr. A.C. Behera, J. I Agree.

(A.C. Behera), Judge.

Narayan

Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 11-Oct-2023 17:43:44

JCRLA No.30 of 2013