Orissa High Court
Janaki @ Ganapati Das; vs State Of Odisha on 1 July, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.186 of 2001
In the matter of an Appeal under section 374 (2) of the Code
of Criminal Procedure, 1973 and from the judgment of conviction
and order of sentence dated 12.09.2001 passed by the learned
Additional Sessions Judge, Gajapati, Paralakhemundi, in Sessions
Case No.20 of 2000 (Sessions Case No.335 of 2000(GDC).
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Janaki @ Ganapati Das; .... Appellants
Simadri Das @ Simanchal; &
Benu Madhaba Das
-versus-
State of Odisha
.... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Ms. Deepali Mohapatra,
Advocate.
For Respondent - Mr. S.K. Nayak,
Additional Govt. Advocate
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
Date of Hearing :15.05.2024 :: Date of Judgment: 01.07.2024
D.Dash,J. The Appellants, by filing this Appeal, have assailed
the judgment of conviction and the order of sentence dated
12.09.2001 passed by the learned Additional Sessions Judge,
Gajapati, Paralakhemundi, in Sessions Case No.20 of 2000
(Sessions Case No.335 of 2000(GDC), arising out of G.R. Case
No.182 of 1999, corresponding to Paralakhemundi P.S. Case
No.69 of 1999, of the Court of learned Sub Divisional Judicial
Magistrate (SDJM), Paralakhemundi.
The Appellants (accused persons) thereunder have been
convicted for commission of offence under section 341/323/302
read with 34 of the Indian Penal Code, 1860 (in short, 'IPC').
Accordingly, each of them has been sentenced to undergo
imprisonment for life and pay fine of Rs.10,000/- in default to
undergo rigorous imprisonment for one (1) year for the offence
under section 302 of the IPC when no separate sentence for
commission of other offence has been inflicted upon them.
2. Prosecution case is that on 17.08.1999, basing upon the
allegation of one Simanchala Bhramma, a Panchayat Meeting had
been convened at Uttarasili Chowk on Trinath temple Mandap
situated near Regulated Market Committee (RMC) gate, locally
known as Jangalpadu chhaka. The meeting was attended by P.
Amulya (Informant-P.W.1), Neelamani Panda(P.W.3) Khageswar
Das, Simadri Das, Kumuti Bhaskar, Simanchala Bhramma, Janaki
@ Gajapati Das and many others. In that meeting, the Informant
(Neelamani Panda(P.W.3) was held guilty of the allegations
levelled against him. It is stated that after that Simadri Das
(accused) and Benu Das (accused) assaulted the Informant
(P.W.1) by dealing fist blows and slaps. In view of that, the
parents of the P.W.1, who had also been to the meeting place
requested the accused persons not to assault the Informant
(P.W.1). When the father of the Informant, namely, P. Lingaraj
tried to take away the Informant (P.W.1) by releasing him from
the clutch of the accused persons; it is stated that accused persons
Janaki @ Gajapati, Simadri @ Simanchala and Benu Madhaba
dealt kick and fist blows on his chest and belly. Accused Janaki
had caught hold of the neck of P.Lingaraj and gave a push which
resulted his fall. On account of this, Lingaraj died at the spot.
3. The Informant (P.W.1) then having lodged a written report
on 18.08.1999 at 7 am, with the Sub-Inspecter (SI- P.W.8) of Police
attached to Gurandi Police Out Post under Paralakhemundi
Police Station, entered the said fact in the station diary book of
the Police Out Post and took up the investigation while sending
the report to the Inspector-in-Charge (IIC-P.W.9) of
Paralakhemundi Police Station for registration of the case,
awaiting further instruction. The IIC(P.W.9), having received the
said written report, registered the case, treated the same as FIR
(Ext.1) and directed the S.I (P.W.8) Gurandi Police Out Post to
continue with the investigation.
4. In course of investigation, the Investigating Officer (I.O-
P.W.8) examined the Informant (P.W.1) and other witnesses. He
held inquest over the dead body of P. Lingaraj (deceased) in
presence of witnesses and prepared the inquest report (Ext.4). He
(P.W.8) then sent the dead body for Post Mortem Examination by
issuing necessary requisition. He also issued the requisition for
medical examination of the Informant (P.W.1) vide Ext.6. The I.O
(P.W.8) then prepared the Spot Map, Ext.8 and seized the
wearing apparels of the deceased on production by the police
constable, who had accompanied the dead body to the morgue
under seizure list (Ext.3). On 16.11.1999, the IIC (P.W.9) took
charge of the investigation. He (P.W.9) examined other witnesses
and on completion of investigation, submitted the Final Form
placing the accused persons to face the Trial for commission of
offence under section 341/323/302 read with 34 of the IPC.
5. Learned SDJM, Paralakhemundi receiving the Final Form as
above, took cognizance of the offence and after observing the
formalities committed the case to the Court of Sessions. That is
how the Trial commenced by framing charge against the said
offence against the accused persons.
6. In the Trial, the prosecution in total has examined twelve
(12) witnesses. Out of whom, as already stated, P.W.1 is the
informant, who is the son of the deceased and had lodged the
FIR (Ext.1) and other important witnesses are the Doctors,
P.W.10, P.W.11 and P.W.12. P.W.10 had conducted autopsy over
the dead body of P.Lingaraj whereas P.W.12 had examined the
Informant, P.W.1. The Investigating Officers have been
examined as P.W.8 & P.W.9.
7. The prosecution besides leading the evidence by examining
above the witnesses has also proved several documents which
have been admitted in evidence and marked as Ext.1 to Ext.9. Out
of those, the important are the FIR, Ext.1, inquest report, Ext.4,
Post Mortem Report, Ext.9, Injury Reports, Ext.6/2 and 7/2 as also
the spot map, Ext.8.
8. The Trial Court upon examination of the evidence of the
prosecution witnesses having held the prosecution to have
established that P. Lingaraj had met a homicidal death; mainly
relying upon the evidence of P.W.1 and P.W.5 (wife of the
deceased and mother of P.W.1) has held that the prosecution has
proved its case that the accused persons intentionally caused the
death of the deceased by assaulting him, beyond reasonable
doubt and as such the accused persons have been held guilty of
murder under section 302 of the IPC. Accordingly, the accused
persons have sentenced as aforestated.
9. The accused has not led any evidence in support of their
plea of denial and false implication.
10. Ms. Deepali Mohapatra, learned counsel for the Appellants
(accused persons) from the beginning without attacking the
finding of the Trial Court based upon the evidence of P.W.1 and
P.W.5 that the deceased died after being assaulted by these
accused persons in that meeting place submitted that for the said
role played by the accused persons and the acts done in the
incident upon the deceased P.Lingaraj, the Trial Court ought not
to have held the accused persons guilty of committing the offence
under section 302 of the IPC for murder of P.Lingaraj. He
submitted that with the available evidence on record, falling from
the lips of P.W.1 and P.W.5 and accepting the same in toto and
viewing the same with the surrounding circumstances which
emanate from their evidence as also the medical evidence, the
accused persons ought to have been held liable for commission of
the offence under section 325 of the IPC in respect of deceased P.
Lingaraj in causing grievous hurt to him; and the offence under
section 323 of the IPC as against P.W.1 & P.W.5 in causing simple
hurt to them. In order to buttress her submission, she placed
reliance upon the following decisions of the Apex Court:
(i)Ratan Singh, Ram Singh & Another -versus - State of Punjab
1988 (Supp) SCC 456
(ii) Lal Mandi vs. State of West Bengal (1995) 3 SCC 603 and
(iii) Roy Fernandes Vs. State of Goa & Others (2012) 3 SCC 221
She, therefore, urged for alteration of conviction of the
accused persons from section 341/323/302/34 of the IPC to section
341/323/325/34 of the IPC and urged that the accused persons be
appropriately visited with the sentence taking into account all the
relevant factors including the sufferance of the accused persons
from the mental agony of the criminal trial for about 25 years by
now.
11. Mr. S. K. Nayak, learned counsel for the State-Respondent
submitted all in favour of the finding of guilt against the accused
persons as has been rendered by the Trial Court. He contended
that when as per the evidence of P.W.1 & P.W.5, all these accused
persons having indiscriminately assaulted P. Lingaraj in that
meeting place when he was in attempting to get his son (P.W.1
released from the clutch of the accused persons since cumulative
effect of the said injuries resulting from the assault of the accused
persons has led to the death of the deceased, they have been
rightly held liable under section 302/34 of the IPC for having
intentionally caused the death of P. Lingaraj besides being
convicted for the offence undersection 341/323/34 of the IPC for
wrongfully restraining P.Lingaraj, P.W.1 & P.W.5 and causing
simple hurt to them.
12. Keeping in view the submissions made, we have carefully
read the judgment of conviction impugned in this Appeal. We
have also gone through the depositions of all the witnesses P.W.1
to P.W.12. We have perused the documents which have been
admitted in evidence and marked Ext.1 to Ext.7/3.
13. Addressing the rival submission confined to the alternation
of conviction of the sentence, it would be apposite to run through
the evidence of P.W.1 and P.W.5, who are the two injured
witnesses through when, the prosecution has proved the
occurrence as well as the role played by the accused persons and
the act that they have done there upon P. Lingaraj (deceased) and
then to proceed to view the same with the evidence of the Doctor
(P.W.10), who had conducted the Post Mortem Examination over
the dead body of P.Lingaraj.
It has been stated by P.W.1 that the accused Simanchala and
accused Benu assaulted him in the meeting place when his father
P.Lingaraj and mother P.W.5 protested. He further states that
then all the three accused persons dealt fist blows and slaps upon
his father and more specifically, he has stated accused
Simanchala to have assaulted on the chest of his father and
thereafter, it is further stated that all the accused persons
indiscriminately assaulted his father and gave him the push
which led to his fall resulting fracture on his head. P.W.5, the wife
of the deceased states that the accused persons assaulted her
husband indiscriminately on his chest, belly, back and other
places and, thereafter, her husband fell down. As it appears from
their evidence, in that meeting when it was held that the
allegations against P.Amulya stands substantiated, the two
accused persons namely, Simadri and Benu assaulted P.Amulya,
P.W.1 by giving first blows and slaps and thereafter when the
deceased intervened, he was assaulted.
Coming to the evidence of the Doctor, who had conducted
autopsy over the dead body of the deceased, we find him to have
stated that he had noticed no external injury on the body of the
deceased except noticing fracture of 7th, 8th and 9th ribs on the
right side along mid auxiliary line, which was confirmed on
dissection. His further evidence is that the fracture on 8th rib has
been fatal as it has finally entered inside the thorasic cavity and
that is stated to be the cause of death. In the entire incident, no
such weapon has been used by any of these accused persons.
There was no prior planning for the incident and none of the
accused persons had any grudge as against the deceased, who
having made the attempt to rescue his son (P.W.1), he has been
assaulted.
14. In view of the evidence available on record falling from the
lips of P.W.1 & P.W.5, it cannot be specifically said as to on
whose assault, the 8th rib of P.Lingaraj had been fractured and at
best what could be attributed to them to the injuries resulting in
fractures. None of these accused persons would be convicted for
causing injuries individually upon the deceased which could
make out an offence under section 302 of the IPC. In view of the
evidence of P.W.1 & P.W.5 and the surrounding circumstances
emanating therefrom as aforestated, it cannot be said that the
accused persons assaulted the deceased in furtherance of their
common intention of killing the deceased.
15. The facts and circumstances in detail as above do not justify
the conviction of the accused persons for offence under section
302/34 of the IPC. The accused persons with the available
evidence placing the facts and circumstances can thus be
fastened with the liability of an offence under section 325/34 of
the IPC insofar as the act done by them upon P.Lingaraj
(deceased) is concerned. This view of ours derives support from
the conclusions arrived at by the Hon'ble Apex Court in the
factual settings of the respective cases cited (Supra) by the
learned counsel for the accused persons. We accordingly, set
aside the conviction and order of sentence recorded by the Trial
Court against the accused persons for the offence under section
302/34 of the IPC and instead find them guilty for an offence
under section 325/34 of the IPC while confirming their conviction
for the offence under section 341/323/34 of the IPC.
The incident dates back to 17.08.1999 and the accused
persons have undergone the mental agony of criminal trial for
near about 25 years when it is further seen that accused Janaki @
Ganapati has now crossed 65 years of age whereas the other two
are within the age group of 50-55 years. The fact remains that all
of them hail from the rural background and live on cultivation
and the judicial notice of the fact can be taken of the fact their
temper usually run high and behaviour often even for silly
reasons seen as abnormal and totally unexpected.
16. Cumulatively, viewing all these factors, we are inclined to
sentence each of them with the rigorous imprisonment for the
period already undergone by them and pay fine of Rs.10,000/- in
default to undergo rigorous imprisonment for six months each. It
is further directed that the entire realized fine amount be paid to
the legal heirs of deceased-P. Lingaraj in equal proportion.
17. This Appeal, therefore, succeeds to the limited extent as
notice above.
(D. Dash),
Judge.
V. Narasingh, J. I Agree. (V. Narasingh),
Gitanjali
Designation: Junior Stenographer
Reason: Authentication
Location: OHC
Date: 03-Jul-2024 16:36:28
