Orissa High Court

State Of Odisha vs Panu Bisoi & Another on 4 March, 2025

Bench: K.R. Mohapatra, V.Narasingh

IN THE HIGH COURT OF ORISSA AT CUTTACK
          Government Appeal No.21 of 1999
                         &
           Criminal Appeal No.217 of 1998

In the matter of appeals under Section 378(1)(3) and
374 of the Code of Criminal Procedure, 1973 and from
the judgment of conviction and order of sentence
dated 25.06.1998 passed by the learned 1st Additional
Sessions Judge, Berhampur in S.C No.11/97 (S.C
No.156/97 G.D.C.).
                       ----

Government Appeal No.21 of 1999 State of Odisha .... Appellant

-versus-

    Panu Bisoi & another                      ....   Respondents


            Criminal Appeal No.217 of 1998

    Panu Bisoi &                        .....         Appellants
    another


                               -versus-
    State of Odisha                                Respondent


            For Appellant -             Mr. P. K. Sahoo,
                                        Additional Standing Counsel
                                        (In G.A No.21 of 1999)





                                              Mr. D. Sarangi, Advocate
                                             (In CRA No. 217 of 1998)

For Respondents - Mr. D. Sarangi, Advocate (In G.A. No 21 of 1999)

Mr. P. K. Sahoo, Additional Standing Counsel (In CRA No. 217 of 1998)

CORAM:

MR. JUSTICE K.R. MOHAPATRA MR. JUSTICE V.NARASINGH Date of Hearing : 28.11.2024 : Date of jugment:_04.03.2025

V. Narasingh,J. Since these two appeals arise out of one judgment of conviction and order of sentence dated 25.06.1998 passed by the learned 1st Additional Sessions Judge, Berhampur in S.C. No.11/97 (S.C. No.156/97 G.D.C) they were heard together for disposal by this common judgment on the consent of the learned counsel for the parties.

During pendency of appeals, it was brought on record that in C.R.A No.217 of 1998 Appellant No.1- Panu Bisoi (Respondent No.2 in G.A No.21 of 1999) has died and since the Appellant No.2 did not evince any interest to pursue the appeal on behalf of his father, the same abates qua the Appellant No.1 and G.A No.21 of 1999 is thus confined to Respondent No.2-Pravakar Bisoi.

The Appellants being arraigned as the accused persons faced the trial in the court of learned 1st Additional Sessions Judge, Berhampur for commission of offence under Section 302/34 of the Indian Penal Code, 1860 (in short, 'the IPC'). Learned 1st Additional Sessions Judge, Berhampur by the impugned judgment convicted the accused persons for commission of offence under section 304-II/34 IPC and accordingly thereunder each was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/-, in default, to undergo further rigorous imprisonment for one month.

The appeal i.e. G.A. No.21 of 1999 is at the behest of the State questioning the conviction of the accused persons under Section 304-II/34 IPC seeking conviction and sentence under Section 302/34 IPC whereas C.R.A No.217 of 1998 has been filed by the accused persons challenging the judgment of conviction and order of sentence passed against them.

2. Prosecution case -

On 09.09.1996 around 7.00 A.M Jaya Bisoi (deceased) went to his paddy field. By 8 A.M., his wife (informant-P.W.1) enquired about her husband (deceased) from Krushna Khillar (P.W.9) who told her that Prabhakar Bisoi (Accused No.2) had called some gentlemen to the paddy field and her husband

(deceased) was present there. The informant locked her house and went towards the paddy field where she saw from a distance that Panu Bisoi (Accused No.1) had overpowered her husband. Hence she rushed to the place of occurrence to rescue her husband at which the accused Prabhakar (Accused No.2 son of Accused No.1) struck her left hand with the handle of the axe causing her to fall. Thereafter, while Prabhakar Bisoi (Accused No.2) threatening to kill the deceased, dealt two axe blows near the right elbow joint and another blow to the right ankle joint of the leg. He also dealt another blow on the left lower limb causing profuse bleeding from those injuries. The informant raised hullah hearing which other villagers came at the place of occurrence and seeing the villagers coming accused persons fled away. According to her, occurrence took place in the presence of Kailash Chandra Misra (P.W.5) and Krushna Khillar (P.W.9) both residents of her village and eyewitnesses to the incident. Thereafter, the deceased was removed to Tarasingi Hospital where he was declared dead by the Doctor. The Informant along with Kailash Chandra Misra (P.W.5), lodged the written report at the Police Station.

3. In course of the investigation, the Police held inquest of the deceased Jaya Bisoi and sent it for post mortem, examined witnesses, and got the Informant's

injuries examined. The blood-stained clothing (M.Os-V and VI) and the weapon tangia (M.O-I) was also seized by the Police and were sent for chemical examination and finding a prima facie case submitted charge sheet against the accused persons (Appellants).

4. In the trial, the prosecution in order to bring home the charge against the accused persons in total examined 13 (thirteen) witnesses. Out of whom, P.W.1 is the Informant, wife of the deceased Jaya Bisoi, P.Ws.2 and 3 are the local gentle men who were called to the place of occurrence to amicably settle the dispute. Kailash Chandra Misra (P.W.5) and Krushna Khillar (P.W.9) are the eyewitnesses to the occurrence. P.W.5 is also the scribe of the FIR. Surendra Bisoi (P.W.4) is the younger brother of the deceased. Tuna Barik (P.W.8) is the son-in-law of the deceased. P.Ws.4 and 8 are the post occurrence witnesses. The Doctor, who conducted the post- mortem examination over the dead body of the deceased was examined as P.W.13 and P.W.12 is the Doctor, who had medically examined the Informant. The Investigating Officer has been examined as P.W.11 and P.W.10 is the C.I. of Police who submitted the charge-sheet against the accused persons.

4-A. Besides leading the evidence by examining above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.20/1. Out of those, the significant ones are the FIR-Ext.1, Inquest Report- Ext.2, Post- Mortem Report-Ext.20 and Spot Map- Ext.18.

4-B. The plea of the accused father, Panu Bisoi in defence is that he exercised the right of private defence. However, no witness has been examined on behalf of the defence.

On the other hand, the accused-son, Prabhakar Bisoi took the plea of alibi. He stated that he was not present at the place of the occurrence as he had been to tuition at Kalinga Padar and due to their prior enmity, he has been falsely implicated.

5. Learned trial court on going through the evidence led by the prosecution and upon scrutiny and analyzing thereof has come to the conclusion that the prosecution has proved the occurrence beyond reasonable doubt by leading clear, cogent and acceptable evidence as against the Appellants-accused persons.

Learned trial court took into account the evidence of the Doctor (P.W.13), who had conducted the post-

mortem examination over the dead body of the deceased and stated that the cumulative effect of all the external injuries were fatal in the ordinary course of nature to cause death and could be caused by a sharp cutting weapon like a tangia, and the death was due to haemorrhagic shock. P.W.13 also stated that had the injuries been attended to at the nick of the moment by a Doctor, the life of the deceased could have been saved. Learned court also found that accused father, Prabhakar Bisoi had enough scope to give blows to any vital part of the body such as the heart, chest and abdomen, which was not done in this case. All the injuries were sustained by the deceased on his hands and legs indicating that the accused persons had only intended to make him physically invalid without any intention of causing murder. Further, the accused persons having assaulted with a tangia had the knowledge that such an act was likely to cause death or to cause such deadly injuries, learned court held them guilty for commission of offence under Section 304-II IPC and sentenced them as aforestated.

Stand of the Appellant in CRA No.217 of 1998

6. Learned counsel for the Appellants in CRA No.217 of 1998 (accused persons) submitted that the learned trial court erred in convicting the Appellants despite

the absence of any independent eyewitness to the occurrence as all the witnesses are close relatives of the deceased. It was further submitted that the learned trial court without properly scrutinizing the evidence of the prosecution witnesses especially P.W.1 that no one else was present during the assault contradicts the presence of P.W.5 and P.W.9, who have said to have arrived hearing the shout of P.W.1 but claimed to have witnessed the entire incident, has erred in holding that the prosecution has proved the participation of these accused persons in the said incident in causing injuries upon the deceased beyond reasonable doubt. He further submitted that the evidence of all these witnesses being properly scanned do not satisfy the test of reliability in so far as the role ascribed to these accused persons.

During course of hearing, learned counsel for the convicts who are Appellants in CRA No.217 of 1998 brought on record disability certificate as well as unique ID Card of Appellant No.2 in CRA No.217 of 1998 (Prabhakar Bisoi) issued on 10.06.2017 showing disability of the said Appellant to the extent -

(A) He is a case of Locomotor Disability (B) The diagnosis in his case is B.E elbow right lower l/3rd of fore arm (C) He has 65% (in figure) Sixty Five percent (in words) Permanent Disability.

Placing reliance on the disability certificate, learned counsel for the Appellants, Sri Sarangi submitted that in the meantime Appellant No.2 has been punished by the divine and has become 65% disabled and prayed for acquittal of the said Appellant and consequentially sought dismissal of the Government Appeal.

To fortify his submission, he relied on the decisions of the Apex Court in the case of State of Karnataka vrs. Muddappa, (1999) 5 SCC 732, Ram Prakash Singh vrs. State of Bihar, (1998) 9 SCC 497, K. Ramakrishnan Unnithan vrs. State of Kerala, (1999) 3 SCC 309 and Baijnath Mahton and others vrs. State of Bihar, 1993 Supp (3) SCC 1.

Submission of the learned Public Prosecutor

7. Learned counsel for the State-Appellant, on the contrary while pointing out evidences of P.Ws.1, 5, 7, 8, 9, 11 and 13 contends that in the face of direct evidence before the learned trial court conviction ought to have been under Section 302/34 IPC and no reasoning has been given by the learned trial court while convicting the accused persons for a lesser offence under Section 304-II/34 IPC. Therefore, the conviction ought to be one under Section 302/34 IPC.

While referring to evidence of P.W 13 learned counsel for the State further submitted that P.W 1 has clearly stated that all the injuries were fatal in ordinary course of nature to cause death.

It is further contended that P.Ws.1, 5 and 9 are the eyewitnesses to the occurrence who categorically deposed about the assault made by the Appellants. P.Ws. 7 and 8 are the witnesses before whom the deceased made dying declaration which was found to be believable by the learned trial court. Thus the credibility of evidence of P.Ws.1, 5, 7, 8, 9, 11 and 13 cannot be questioned.

7-A. Learned counsel for the Respondent-State in CRA No.217 of 1998 and on behalf of the Appellant-State in G.A. No.21 of 1999 submitted that the evidence of the prosecution witnesses to the effect that these accused persons assaulted the deceased by means of tangia has gone unchallenged which the learned trial court has rightly accepted as their versions contain no such infirmity. It is his assertion that with such evidence on record, keeping in view the manner in which the incident took place as stated by P.W.1 and others, since the accused persons had assaulted the deceased by a dangerous weapon and ultimately the injuries caused thereupon have led to the death of the deceased, the conviction of the accused persons ought

to have been for commission of offence under Section 302 IPC and not under section 304-II IPC.

Learned Public Prosecutor submitted that the conviction under Section 304-II IPC is outcome of perverse appreciation of evidence and there being no mitigating circumstance conviction should be altered to one under Section 302 IPC. And, it is his further submission that the disability certificate ought not to weigh with this Court in assessing the evidence on record qua the complicity of the sole surviving Respondent (Appellant No.2 in CRA No.217 of 1998). He also referred to the dying declaration of the deceased.

Learned counsel for the State Sri Sahoo relied on the judgment of the Apex Court in the case of Prasad Pradhan & another vs. The State of Chhattisgarh, (2023) 11 SCC 320 more particularly paragraph-6, 22 and 24 thereof which are quoted for reference;

6. Learned counsel for the appellants also argues that the death of Vrindawan took place after about 20 days of the incident on account of complication in the surgery and it cannot be said that the cause of death was injury as the prosecution could not prove that injury caused to the deceased, in ordinary course of nature, was sufficient to cause death. Learned counsel highlighted that the injury

caused by the appellants, particularly the head injury, was stitched in and had healed. Learned counsel emphasized that Vrindawan died as a result of cardio- respiratory failure, as stated by PW14. Such being the case, the finding of the courts below that the appellants were guilty of the offence of Section 302 IPC was clearly in error of law. It was argued that arguendo, if the prosecution could be said to have proved the attack by the appellants on the deceased, the cause of death neither being immediate nor a direct result of it, there is no question of the ingredients of the offence of murder under Section 302 IPC having been proved beyond reasonable doubt.

22. The question then is - was there a "sudden quarrel" between the deceased and the appellants so that the case would not be murder, but culpable homicide, in terms of Exception 4 ("if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner"). In the opinion of this court, there was no "sudden quarrel". The testimonies of the two important eyewitnesses, PW1 and PW2, establish that when the deceased was levelling the septic tank on his property, the accused/appellants started abusing him; he asked them not to. The appellants, who

were in the adjacent property, climbed the wall, entered the deceased's house, and attacked him with axes. These facts do not constitute a "sudden quarrel", given that the appellants abused the deceased, in an unprovoked manner, and then they went to where he was, armed with axes, and assaulted him. Arguendo, even if the facts are assumed to disclose that there was a sudden fight, it cannot be said that the accused failed to act in a cruel manner, or did not take undue advantage. This is because they were armed: a fact which shows pre-meditation on their part. Moreover, they both attacked Vrindawan on the head, which is a vital part of the body, thus taking undue advantage of their situation.

24. If one were to apply the above tests to the present case, what is evident is that while there were pre-existing disputes of some vintage, between the appellants and the deceased, there is nothing to show that they had been aggravated. It is also, likewise, not clear whether the deceased said anything to the appellants which triggered their ire, leading to loss of self- control as to result in "grave and sudden provocation". In any case, if there were something, the appellants ought to have brought the relevant material or evidence on record, as what facts did exist, was within their peculiar knowledge."

7-B. The judgment relied upon by the learned counsel for the State in the case of Prasad Pradhan (supra) is ex-facie distinguishable on facts, inter alia, on account of the seat of the injury.

FINDINGS

8. Keeping in view the submissions made, this Court carefully considered the judgment of conviction impugned in these appeals, have also gone through the depositions of all the witnesses P.W.1 to P.W.13 meticulously and perused the documents which have been admitted in evidence and marked Ext. 1 to Ext.20/1.

8-A. The question is whether the Appellants are guilty of the offence of murder, punishable under Section 302 IPC, or whether they are criminally liable under the less severe Section 304-II IPC as held by the learned trial court or whether Appellant No.2 is entitled to an order of acquittal as prayed for by the learned counsel for the Appellant No.2 in CRA No.217 of 1998. The determinative fact would be the intention to cause such injury and what was the degree of probability (gravest, medium, or the lowest degree) of death which determines whether the crime is culpable homicide or murder.

Law is well settled that distinguishing factor as to whether an act falls within the ambit of Section 299 or 300 IPC is mens rea. It would be apposite to refer to the decision of the Apex Court in the case of Pulicherla Nagoraju @ Nagaraja Reddy vs State of Andhra Pradesh, (2006) 11 SCC 444 in this regard and quote the following paragraph.:-

"29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances;

i. nature of the weapon used;

ii. whether the weapon was carried by the accused or was picked up from the spot;

iii. whether the blow is aimed at a vital part of the body;

iv. the amount of force employed in causing injury:

v. whether the act was in the course of sudden quarrel or sudden fight or free for all fight; vi. whether the incident occurs by chance or whether there was any premeditation;

vii. whether there was any prior enmity or whether the deceased was a stranger;

viii. whether there was any grave and sudden provocation, and if so, the cause for such provocation;

ix. whether it was in the heat of passion: x. whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;

xi. whether the accused dealt a single blow or several blows.

9-A. It is on record that the Appellants and the deceased were co-villagers. On the fateful day the deceased threw grasses on the field of the convict Panu Bisoi, for which said Panu Bisoi called P.Ws. 2 and 3 for amicable settlement. Said P.W.2 after finding the mischief done by the deceased settled the matter, advised both the parties to make peace and left for their respective houses. However, there were further altercation leading to death of the deceased at the hands of the convicts. There is nothing on record to show that the convicts had intention to kill the deceased and in furtherance of such intention they assaulted the deceased and caused his death.

Admittedly, P.Ws.7 and 8 before whom the deceased allegedly named the Appellants as assailants did not state before the I.O (P.W.11) regarding such dying declaration allegedly made by the deceased before them.

10. On the contrary from the post-mortem report Ext.20 as well as evidence of P.W. 13 who conducted post-mortem, it is seen that the injuries are not on the vital organs of the body and this Court is persuaded to agree with the submission of the learned counsel for the convicts that the convicts never intended to cause death of the deceased but due to sudden quarrel which broke out after failed settlement at the instance of P.Ws. 2 and 3, the convicts assaulted the deceased and caused injury on his hand, leg, etc on the spur of the moment on sudden provocation without any premeditation. Since there is nothing on record to suggest intention on the part of the convicts to cause death of the deceased and evidence on record suggests that both convicts and deceased suddenly fought, learned trial court rightly recorded conviction under Section 304-II/34 IPC instead of Section 302 IPC.

11. From the evidence of the Doctor P.W.13 who had conducted the post-mortem examination, this Court finds that the deceased had sustained three incised wounds one on the right upper arm, another on the left

lower limb and the other on the right foot of the deceased. His specific evidence, however, is that the cumulative effects of all the external injuries were fatal in ordinary course of nature to cause death and can be possible by a sharp cutting weapon like tangia and the life of the deceased could have been saved injuries were attended at the nick of the moment. According to him, cause of death was due to haemorrhagic shock and has indicated all those in detail in his report (Ext.20). This being the evidence of the Medical Expert P.W.13 and the evidence of the prosecution witnesses more particularly that of P.W.1 is accepted as reliable and trustworthy in so far as the role ascribed to these accused persons in assaulting the deceased when viewed with the surrounding circumstances as those emanate from evidence with the relationship of the accused persons with the deceased as co-villagers, this Court is of the considered view that the assessment of evidence by the learned trial court and imposing of sentence cannot be said to be perverse as alleged so as to warrant interference in the appeal preferred by the State.

12. On a conspectus of the evidence on record, it is evident that the Appellants assaulted the deceased by means of Axe having full knowledge that by their act they might cause death of the deceased. This Court is of the considered view that there is no infirmity in the

impugned judgment and the conviction and sentence imposed on the Appellants warranting interference in the CRLA at the behest of the accused.

13. However, keeping in view the disability of Appellant No.2-Prabhakar Bisoi and the period of detention already undergone by the said Appellant/Convict pre and post conviction stage, this Court is of the considered view that reduction of sentence to the period already undergone by the Appellant No.2 would subserve the ends of justice and the sentence is modified to that extent.