Orissa High Court
Mohanlal Bhoi vs State Of Orissa on 1 November, 2023
Bench: D.Dash, G.Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.80 of 2012
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 13th December, 2010 passed by the
learned Additional Sessions Judge, Nuapada in Criminal Trial
No.12 of 2010.
Mohanlal Bhoi .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr.B.K. Nayak,
Advocate as Amicus Curiae
For Respondent - Mr.P.K.Mohanty,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G.SATAPATHY
Date of Hearing :16.10.2023 : Date of Judgment : 01.11.2023
D.Dash, J. The Appellant, by filing this Appeal, from inside the jail, has challenged the judgment of conviction and order of sentence dated 13th December, 2010 passed by the learned Additional Sessions Judge, Nuapada in Criminal Trial No.12 of 2010 arising out of G.R Case No.454 of 2009, corresponding to Khariar P.S. Case No.238(2) of 2009 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Khariar. Page 1 of 9 JCRLA No.80 of 2012
{{ 2 }} The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, 'the IPC') and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for a period of one (1) year.
2. PROSECUTION CASE:-
On 31.11.2009 around 9.00 p.m., one Shesadev Bhoi (informant-P.W.2), who is the brother of Laxman Bhoi, submitted a written report being scribed by Durjodhan Bhoi (P.W.3) with the Inspector-in-Charge (IIC-P.W.14) of Khariar Police Station (P.S.) stating therein that on that day around 8.00 p.m., when he was sitting on the front verandah of the house of his co-villager, Hari Majhi, his elder brother Laxman Bhoi, who was then the Ward Member of the village, was standing in front of grocery shop of one Sundarmani. It was stated that the accused then came from his house and went towards the grocery shop and gave a slap to one Mahul Bhoi, who had been used to purchase grocery articles from that shop. Mahul, out of fear, left the place. The accused thereafter when quarreled with one Ram Chandra Bhoi, Laxman told him not to quarrel and go back to his wife. It is then stated that the accused dragged Laxman and both went to the house of the accused. Sometime thereafter, the wife of the accused raised hullah and Shesadev (informant-P.W.2) hearing Page 2 of 9 JCRLA No.80 of 2012 {{ 3 }} the hullah when went to the house of the accused, he saw Laxman lying dead with bleeding injury on his head. The accused carrying a Ghana (Hammer) when was attempting to give further blow on the head of Laxman, the informant (P.W.2) caught hold of the accused and snatched away that Ghana (Hammer) from him. Shesadev (informant-P.W.2) thereafter raised hullah and hearing the same, his nephew-Kailash Ch. Bhoi (P.W.5), Nilambar Bhoi and others came to the spot. The deceased being found to be lying senseless, was immediately shifted to Mission Hospital, Khariar. The Doctor, having found the patient to be critical, referred the case to V.S.S. Medical College & Hospital, Burla where Laxman died.
The written report, being received by the IIC (P.W.14), the same was treated as FIR (Ext.2) and upon registration of the case, the investigation was taken up.
3. The Investigating Officer (I.O.-P.W.14) examined the informant (P.W.2) and the scribe (P.W.3). Having visited the spot, he (P.W.14), prepared the spot map (Ext.12). During his visit to the spot, he collected sample earth and blood stained earth from the spot and the same were seized under seizure list (Ext.13). He had also seized one wooden handle iron hammer under the seizure list (Ext.1). Wearing apparels of the accused have been seized by the I.O. (P.W.14) under seizure list (Ext.4). On getting information that Laxman died during his treatment at Mission Page 3 of 9 JCRLA No.80 of 2012 {{ 4 }} Hospital, Khariar, he (P.W.14) went to the spot and held inquest over the dead body of the deceased and prepared the report (Ext.3) to that effect in presence of witnesses. The dead body was then sent for post mortem examination by issuing necessary requisition. The I.O. (P.W.14) sent the seized incriminating articles for chemical examination through Court. On completion of investigation, Final Form was submitted by the I.O. (P.W.14) placing the accused to face the Trial for commission of offence under section 302 of the IPC.
4. Learned J.M.F.C., Khariar, 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.
5. In the trial, the prosecution examined in total fourteen (14) witnesses. Out of them, as already stated, P.W.2 is the informant and the younger brother of the deceased. P.W.1 is a post occurrence witness as well as a witness to the seizure of Ghana (Hammer). P.W.3 is another younger brother of the deceased, who has scribed the FIR (Ext.2) whereas P.W.6 is the wife of the accused. P.Ws.7 & 8 are the police personnels. P.W.9 is the Doctor, who had medically examined the accused whereas P.W.11 is the Doctor, who conducted autopsy over the dead body Page 4 of 9 JCRLA No.80 of 2012 {{ 5 }} of the deceased. The I.O. of the case, at the end, has come to the witness box as P.W.14.
6. Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which have been admitted in the evidence and marked Ext. 1 to 17. Important of those, are the F.I.R. (Ext.2), Inquest Report (Ext.3) and Postmortem Examination Report (Ext.8). The spot map prepared by the I.O. (P.W.14) has been admitted in evidence and marked as Ext.12 whereas the chemical examination report is Ext.17.
7. The accused, having taken the plea of denial and false implication, has, however not tendered any evidence in support of the defense.
8. Mr.B.K. Nayak, learned counsel for the Appellant (accused), from very beginning, instead of impeaching the evidence let in by the prosecution as to the nature of death and more importantly the role played and the act done by the accused as have been placed by the prosecution, submitted that with the acceptance of all those, the Trial Court instead of holding the accused guilty of commission of offence under section 302 of the IPC, ought to have convicted him for the offence under section 304-I of the IPC. He submitted that the parties hail from rural back ground and there is no evidence on record to show that the Page 5 of 9 JCRLA No.80 of 2012 {{ 6 }} accused had any prior planning for the incident so as to assault the deceased and it appears that everything had happened all of a sudden and within short time span. He further submitted that as per the evidence of the informant (P.W.2) when P.W.6 has not supported the case of the prosecution and turned hostile and the accused is said to have given a solitary blow on the head of the deceased by means of a Ghana (Hammer), which too is also not stated to have been carried by the accused from the beginning when no such other evidence is forthcoming as to what happened inside the house that why P.W.6 raised the cry, the Trial Coiurt has failed to take note of all these. He further submitted that the Doctor, (P.W.11), who had conducted the autopsy over the dead body of the deceased, has not stated that the injuries, which he noticed on the head of the deceased are the result of successive blows. According to him, keeping in view the status of the parties and the background from which they hail, it can be well said that their tamper usually run high and behavior for silly reasons, often becomes abnormal. In view of all these above, according to him the Trial Court ought not to have convicted the accused for commission of offence under section 302 of the IPC. He, therefore, urged for altercation of conviction for commission of offence under Section 302 of the IPC to offence under Section 304-I of the IPC and accordingly, contended that the accused be visited with the sentences appropriate for the said offence. Page 6 of 9 JCRLA No.80 of 2012
{{ 7 }}
9. Mr.P.K.Mohanty, learned Additional Standing Counsel submitted all in favour of the finding returned by the Trial Court that the accused is liable for commission of the offence under Section 302 of the I.P.C. He further submitted that the blow being by Ghana (Hammer), on the head of the deceased, which has proved fatal in causing the death, the Trial Court did commit no mistake in holding the accused guilty for commission of the 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.14) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.17.
11. In order to address the rival submission on the question of alteration of the finding of the Trial Court holding the accused guilty for commission of the offence under section 302 of the IPC, when we look at the evidence of P.W.11, the Doctor, who had conducted the autopsy over the dead body of the deceased, we find him to have stated that he had noticed two depressed fracture, one on the left temporal bone and another on the left temporal bone in front of the left ear. He had noticed contusion over left frontal lobe lacerated extra dural haemorrhage adhered to dural present over left tempero parietal area and left side Page 7 of 9 JCRLA No.80 of 2012 {{ 8 }} cerebral swelling. It is his evidence that the death was on account of respiratory failure due to brain stem compression. Nowhere it has been stated by him that these injuries on the head are the result of successive blows and cannot be by one.
P.W.2 states that when he arrived at the spot, the deceased was lying in an injured condition and thereafter, the accused when was attempting to give the blow, he was prevented. The evidence on record reveal that the deceased had been taken to Hospital for treatment and thereafter was referred to V.S.S. Medical College & Hospital, Burla where he died. The incident has taken place in the house of the accused and the deceased came into picture when he intervened in the quarrel between Rama and the accused. No evidence is there to show that the weapon used for causing the injury on the head of the deceased was being carried by the accused from the very beginning when the accused is said to have dragged the deceased to his house from the grocery shop. The parties hail from rural background and live on cultivation and judicial notice of the fact can be taken that temper run high among them and many a times for silly reasons they behave in an unexpected manner exhibiting abnormal behavior.
12. Taking the cumulative view of all these above circumstances appearing in the evidence, as discussed; we are of the view that the offence could be properly categorized as one Page 8 of 9 JCRLA No.80 of 2012 {{ 9 }} punishable under section 304-I of the IPC. We are thus of the considered opinion that for the role played by the accused and the act done, he would be liable for conviction under Section 304- I of the IPC.
In that view of the matter, this Court alters the conviction under Section 302 of the IPC to one under section 304-I of the IPC. Consequently, the Appellant (accused) is sentenced to undergo rigorous imprisonment for a period of ten (10) years.
13. The Appeal is allowed in part. With the above modification as to the judgment of conviction and order of sentence dated 13th December, 2010 passed by the learned Additional Sessions Judge, Nuapada in Criminal Trial No.12 of 2010, the Appeal stands disposed of.
(D. Dash), Judge.
G.Satapathy, J. I Agree.
(G.Satapathy), Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 02-Nov-2023 17:18:01 Page 9 of 9 JCRLA No.80 of 2012