Orissa High Court
Jogi @ Jogendra Jena vs State Of Odisha on 8 January, 2024
Bench: D.Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.31 of 2016
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 11th March, 2016 passed by the learned
Additional Sessions Judge, Jajpur in Criminal Trial No.40 of 2015.
Jogi @ Jogendra Jena .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.A. Tripathy,
Advocate.
For Respondent - Mr.S.K. Nayak,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G. SATAPATHY
Date of Hearing : 19.12.2023 :: Date of Judgment:08.01.2024
D.Dash, J. The Appellant, by filing this Appeal from inside the jail, has
called in question the judgment of conviction and order of sentence
dated 11th March, 2016 passed by the learned Additional Sessions Judge,
Jajpur in C.T. No.40 of 2015 arising out of G.R. Case No.827 of 2014
corresponding to Mangalpur P.S. Case No.134 of 2014 on the file of the
learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Jajpur.
The Appellant (accused) thereunder has been convicted for
commission of offence under section 302 of the Indian Penal Code,
1860 (in short, 'IPC') and sentenced to undergo imprisonment for life
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and to pay a fine of Rs.25,000/- (Rupees Twenty-Five Thousand) in
default to undergo rigorous imprisonment for period of two years.
2. Prosecution Case:-
On 06.04.2013 around 11.30 a.m. Digambar Jena (Informant-
P.W.16) lodged a written report with the Inspector-in-Charge of
Mangalpur Police Station stating therein that on the preceding day
around 6 p.m. in the evening the accused was shouting in obscene
language by standing near Nayaksahi Chhak when father of Digambar,
namely, Radhashyam Jena had been to that Chhak for shopping.
Radhashyam then asked the accused not to abuse. However, in
retaliation the accused abused and threatened to kill him. It was around
6.30 p.m. when Radhashyam was returning, the accused came and dealt
a blow with Farsa on the base of his ear, which led to his fall on the
ground. One Nirmala Jena (P.W.8) who was then passing on the road.
He raised hullah and thus Mamina Jena (P.W.14) rushed in when the
accused took to his heels. Radhashyam being shifted to the hospital on
his way had disclosed the accused to have dealt a blow on him. First of
all Radhashyam was taken to Mangalpur Hospital and thereafter being
taken to the District Headquarter Hospital, Jajpur, he was declared dead.
On that day the Informant (P.W.16) presented a written report
with the Inspector-in-Charge (I.I.C.), Mangalpur Police Station in the
District of Jajpur. The I.I.C. receiving the said report (Ext.6), treated the
same as FIR and upon registration of the case took up investigation.
The Investigating Officer (I.O.-P.W.19) then examined the
Informant (P.W.16) and visited the spot with him. He then prepared the
spot map (Ext.7) and examined other witnesses there at the spot and
nearby. He held inquest over the dead body of the deceased in presence
of the witnesses and prepared the report (Ext.1). The dead body then
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was sent for post mortem examination by issuing necessary requisition.
The I.O. (P.W.19) then seized the incriminating articles including the
wearing apparels of the deceased under seizure list (Ext.4). On
10.11.2014 the accused was apprehended and then being taken to
custody stated to give recovery of the axe if taken to the place where it
has been kept by him. Accordingly, the statement of the accused was
recorded under Ext.2 and the accused then led the police and other
witnesses in giving recovery of that axe which has been buried under
earth inside the Chalia (Open shed). That recovered axe was seized
under seizure list (Ext.3). The incriminating articles were then sent for
chemical examination through court. On completion of investigation,
the I.O (P.W.19) submitted the Final Form placing the accused to face
the Trial for commission of offence under section 302 of the IPC.
3. Learned S.D.J.M., Jajpur on receipt of the Final Form, took
cognizance of the offence under section 302 of the IPC 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 in total has examined twenty (20)
witnesses. Out of whom, as already stated, the Informant who is the son
of the deceased and had lodged the F.I.R. (Ext.6) is P.W.16. P.W.7 & 8
are the eye witnesses, P.W.14 is the witness, namely, Mamina Jena who
had been also wounded, P.Ws.1,2,3,5,10 & 15 are the post-occurrence
witnesses, P.Ws.4 and 11 are the witnesses to the inquest. The Doctor,
who had conducted the autopsy over the dead body of the deceased, is
P.W.20 whereas the Investigating Officer has come to the witness box
as P.W.19.
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5. Besides leading the evidence by examining above the witnesses,
the prosecution has also proved several documents which have been
admitted in evidence and marked as Ext.1 to Ext.13. Out of those, the
important are the FIR, Ext.6; spot map, Ext.7. The inquest report is
Ext.1. The statement of the accused pursuant to which the I.O. (P.W.19)
and others had gone to the place and axe was recovered, has been
admitted in evidence and marked Ext.2 and the relevant seizure list is
Ext.3.
6. The accused has tendered no evidence in support of his plea of
denial and false implication.
7. The Trial Court, upon examination of the evidence let in by the
prosecution and their evaluation has come to a conclusion that the
homicidal death of Radhashyam Jena (deceased) was because of
infliction of injuries by means of axe by this accused. The accused has,
therefore, been convicted for intentionally causing the death of
Radhashyam. Accordingly, he has been sentenced as stated above.
8. Learned Counsel for the Appellant (accused) from the beginning
instead of questioning the finding of guilt of the accused as has been
returned by the Trial Court in holding him to be the author of the injury
which was received by the deceased, submitted that the circumstances
surrounding the incident, those which had taken place before and the
subsequent events, the relationship, the number of blow given after
some altercation with its seat and further the fact the parties hail from
rural background whose tamper usually run high and behavior at times
for silly reasons becomes abnormal and unexpected are cumulatively
viewed, the accused ought to be held liable for commission of offence
under section 304-I of the IPC. He, thus confined his submission for
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altercation of conviction for commission of offence under section 302 of
the IPC to one under section 304-I of the IPC and accordingly, he urged
for appropriate reduction of the sentence.
9. Learned Counsel for the Respondent-State submitted all in favour
of the finding of the Trial Court that the accused is liable for committing
the offence under section 302 of the IPC. He submitted that for the role
played and the act done by this accused in inflicting injuries upon the
deceased by means of an axe, the Trial Court is right in holding the
accused guilty for commission of offence under section 302 of the IPC
10. Keeping in view the submissions made, we have carefully read
the impugned judgment of conviction. We have also extensively
travelled through the depositions of the witnesses (P.W.1 to P.W.20) and
have perused the documents admitted in evidence and marked as Ext.1
to Ext.13.
11. Coming to address the submission advanced by the learned
counsel for the Appellant (accused) that the Trial Court ought to have
convicted the accused for commission of offence under section 304-I of
the IPC and not under section 302 of the IPC. First of all we noticed the
evidence of the Doctor (P.W.20) who had conducted the autopsy over
the dead body of the deceased. His evidence is to the effect that he had
noticed one cut wound of the size of 4 inches x 1 ½ inch x 3 inches over
left temporal mandibular area with fracture of mandible and left carotid
artery which was incised with injury to intimal area. That was the
solitary injury that the deceased has sustained. When it is stated in the
F.I.R. (Ext.1) lodged by P.W.16-Digambar Jena that the deceased was
abusing in filthy languages, we find the evidence of P.W.7 who says to
have seen the accused dealing the axe blow on the head of the deceased
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below the ear. He is silent as to how the incident took place and what are
the happenings prior to the blow that fall upon the deceased. It is the
evidence of P.W.6 that the accused told that he was sitting in the Chhak
when Rahdashyam warned him for threatening others to kill. P.W.7 and
P.W.8 have stated to have seen the accused assaulting the deceased,
more particularly, P.W.7 has stated that the accused had dealt axe blow.
The evidence of P.W.14 is to the effect that when she came the accused
was chasing one Nirmal (P.W.8) and then he assaulted P.W.14.
However, it is the evidence of P.W.16, who is the son of the deceased
that the accused, was abusing one Birabhadra Jena when his father
(deceased) asked him not to continue with it and then he was exchanged
of hot words between the deceased and the accused and sometime
thereafter when his father (deceased) was returning home, the accused
assaulted him. There appears no such motive to resting in the mind of
the accused to act in that manner. It has not been stated by the Doctor
(P.W.20) that the injuries noticed by him was the effect of more than
one blow
12. Taking a cumulative view of all these above circumstances, this
Court is of the view that the offence could be properly categorized as
one punishable under section 304 Part-I of the IPC. We are thus of the
considered opinion that for the role played and act done by the accused,
he would be liable for conviction under section 304 Part-I of the IPC.
13. In that view of the matter, the conviction of the accused is altered
to one under section 304 Part-I of the IPC and accordingly, he is
sentenced to undergo rigorous imprisonment for a period of ten (10)
years.
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14. With the above modification as to the judgment of conviction and
order of sentence, the Appeal stands disposed of.
(D. Dash),
Judge.
G. Satapathy, J. I agree.
(G. Satapathy),
Judge.
Himansu
Signed by: HIMANSU SEKHAR DASH
