Orissa High Court
State Of Orissa vs Udayanath Pradhan on 17 July, 2013
Author: B.R.Sarangi
Bench: B.R.Sarangi
HIGH COURT OF ORISSA: CUTTACK
GOVERNMENT APPEAL NO.77 OF 1998
From the judgment dated 20th June, 1997 passed by Shri D.K.Sahu,
Sessions Judge, Budh-Kandhamal at Phulbani in S.T.Case No.153/96.
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State of Orissa ........... Appellant
Versus
Udayanath Pradhan ........... Respondent
For Appellant : Mr.Zaffrulah, Addl.Standing Counsel
For Respondent : M/s.A.K.Choudhury, H.K.Panigrahi &
J.Dash
PRESENT:
THE HONOURABLE KUMARI JUSTICE S. PANDA
AND
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing : 02.07.2013 | Date of judgment : 17.07.2013
Dr. B.R.Sarangi, J.This appeal has been directed against the order of acquittal dated 20.06.1997 passed by the learned Sessions Judge, Boudh-Kandhamal at Phulbani in S.T.Case No. 153 of 1995 acquitting the accused-respondent of the charge under Section 302, IPC and convicting him under Section 323, IPC and sentencing him to undergo R.I. for three months and to pay a fine of Rs.1000/-, in default to undergo further R.I. for a period of one month.
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2. Shorn of unnecessary details, the facts leading to the case are as follows:
The incident took place way back in the year 1996. According to the prosecution case, on 11.6.1996 around 12 noon in the village road of village Betikela within the local limits of G.Udayagiri Police Station, the accused-respondent dealt two fist blows on the head of the deceased and consequently, the deceased succumbed to the injuries.
3. The defence took the plea of complete denial of the prosecution case.
4. The prosecution in order to prove its case, examined seven witnesses. P.W.1 is the doctor, who conducted the post-mortem examination, P.W.2 is a co-villager, P.W.3 is the constable, who carried the dead body for post-mortem examination, P.W.4 is the widow of the deceased, P.Ws.5 and 6 are the female witnesses who corroborated the evidence of P.W.4 and P.W.7 is the Investigating Officer. The prosecution has relied upon the documentary evidence marked as Exts.1 to 8. The defence has neither examined any witness nor has relied upon any documents to substantiate the plea of denial of allegation of the prosecution.
5. Learned Sessions Judge after vivid discussion of the evidence in exten so and relying upon the evidence of the doctor, 3 P.W.1, came to the conclusion that the prosecution has failed to substantiate its case under Section 302, IPC against the accused- respondent and acquitted him of the said charge. He, however, held that the prosecution has been able to prove the allegations with regard to the assault and therefore, held the accused guilty of the offence under Section 323, IPC and convicted him thereunder and sentenced him to undergo R.I. for three months and to pay a fine of Rs.1000/-, in default to undergo further R.I. for a period of one month. Pursuant to the said order of conviction, the accused- respondent deposited the fine amount of Rs.1,000/- vide Money receipt Sl.No.1099 dated 21.6.1997 before the learned trial court, copy of which is annexed to the note of argument submitted on behalf of the accused-respondent.
6. Mr.Zaffrulah, Addl.Standing Counsel assailed the impugned judgment passed by the learned Sessions Judge mainly on the ground that the trial court has acted illegaly with material irregularity in not properly appreciating the evidence available on record. He has contended that in view of the clear evidence of the doctor, P.W.1 coupled with the post mortem report (Ext.1) that the deceased succumbed to the injuries, which is being corroborated by P.W.4, who is the widow of the deceased and P.Ws.5 and 6, who are female witnesses, it is a fit case where the learned Sessions Judge should have convicted the accused-respondent for the offence under Section 302, IPC.
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7. Mr.A.K.Choudhury, learned counsel appearing for the accused-respondent strenuously urged that the contentions raised by the learned counsel for the State cannot be sustainable on the grounds that
(a) The prosecution has miserably failed to make out a prima facie allegation under Section 302, IPC against the accused-respondent and as such, there was absolutely no material to show that the fist blows given by accused- respondent were with the intention to cause death. In absence of any mens rea, the allegation so made by the learned State Counsel cannot be substantiated to reopen the matter at this stage.
(b) The learned Sessions Judge has the advantage to look to the demeanour of the witnesses while passing the order of acquittal in the interest of justice and further it is not the case where any of the findings has been based on inadmissible evidence or suffers from perversity and the view which favours the accused must be preferred and therefore this is not the case, where this Court should interfere with the same
8. Examining the evidence on record, it is revealed that P.W.4, who is the widow of the deceased, has deposed that while the deceased was returning to his house after taking bath, the accused- 5 respondent suddenly came out and dealt "two slaps" on the deceased. The said evidence is being corroborated by P.Ws.5 and 6. The evidence of the doctor, P.W.1 reveals as follows:
"Found bruise on the left temporal region, the second bruise on the right parietal region and the third bruise on the middle of the forehead. Dissection of the injuries reveal that there was extra accumulation of blood corresponding to injury nos.1 and 2.
In cross-examination the doctor (P.W.1) opined:
"Accumulation of blood in the brain takes place due to the reasons other than the blows dealt on the head. It may also be due to the rupture of the brain for other reason."
Taking into account the evidence of P.Ws.4,5 and 6 that the accused- respondent had given "two slaps" on the deceased and the evidence of the doctor (P.W.1) coupled with the fact that no independent witnesses was examined, the learned Sessions Judge in paragraphs 13 and 14 of the impugned judgment held that the accused-respondent had no intention to cause death of the deceased and there is no prima facie evidence to show that the slaps had been given with any external force causing any bodily injury, which would be sufficient in ordinary course of nature to cause death. On the basis of the aforesaid findings, the learned Sessions Judge acquitted the accused- respondent from the charge under Section 302, IPC. However, in paragraph 18 the learned court has held that the cause of death/ action of the deceased does not come within the ambit of Section 302 or Section 304 Part-II but the Court held that the prosecution has 6 been successful in proving that the accused- respondent inflicted simple hurt on the deceased, and therefore, convicted him under Section 323, IPC.
9. In order to examine the contentions raised and findings arrived at by the learned court below, this Court meticulously went through the evidence, both oral and documentary. On scrutiny of the same, we are of the view that the findings of the learned court below in acquitting the accused-respondent of the charge under Section 302, IPC, i.e. the charge of murder, are quite justified on the basis of the evidence of the doctor, P.W.1 as well as the evidence adduced by P.Ws.4, 5 and 6.
10. In similar circumstances the apex Court in Jagat Singh v. State of Himachal Pradesh reported in 2011(2) SCC 234 while acquitting the accused person from the charge under Section 302, IPC, convicted him under Section 323, IPC for causing hurt on the body of the deceased and further held that there is no acceptable evidence with regard to the fact that the accused had voluntarily caused hurt on the person of the deceased. In the decision reported in AIR 2009 SC 1711= 2009(I) Supreme 622 (Sk.Karimulla v. State of Andhra Pradesh) in paragraph 7, the apex Court, while acquitting the accused persons from the charge under Section 302, IPC, convicted them under Section 325, IPC. A Division Bench of this Court in Gamha Mahakud and another v. State of Orissa, 7 2004(27) OCR 290 (para 10 and 11), while acquitting the accused persons of the charge under Section 302, IPC convicted them under Section 323, IPC. In similar case against the order of acquittal under Section 302, IPC and conviction under Section 323, IPC, this Court in the decision reported in 2010(Sup-1) OLR 428 (State of Orissa v. Arjun Chetty and others) in para-7 while dealing with a Govt. appeal has not interfered with the order of acquittal and held that as there is no prima facie material to show that there is any premeditation to cause assault on the deceased and the entire incident took place at the spur of the moment, the conclusion arrived at by the learned trial Judge is proper.
11. Keeping in view the ratio of the decisions referred to supra, the action of the accused-respondent coupled with the evidence available on record, i.e., the evidence of the doctor, P.W.1, and the oral evidence adduced by P.W.4, the widow of the deceased, which was corroborated by the evidence of P.Ws.5 and 6, the female witnesses, clearly indicates that there was neither any pre-meditation nor has it been established that the accused-respondent had any intention to cause the death of the deceased rather the evidence is that the accused-respondent gave "two slaps" without the knowledge that the same would ultimately cause the death of the deceased. Therefore, at best it can be a case under Section 323, IPC and not under Section 302, IPC.
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12. Taking into consideration the fact that the incident took place in the year 1996 and the judgment was passed on 20.6.1997 and the accused-respondent deposited the fine amount on 21.6.1997, after a long lapse of 18 years from the date of occurrence, it would not be in the interest of justice to reopen the matter in view of the ratio of the judgment decided by this Court in Dhruba Charan Padhi v. Madhusudan das and others, 1997(II) OLR 90, State of Orissa v. Priyanath Pradhan and another, 2009(Supp-1) OLR NOC 769 and in State of Orissa v. Arjun Chetty (supra).
13. The scope of the power under Section 378, Cr.P.C. to interfere with the order of acquittal in a case under Section 302, IPC is well settled and this Court cannot interfere with the order of acquittal passed by the learned trial court. It has also been held that the Court is required to keep in mind (i) the presumption of innocence of the accused, (ii) if two views are possible, the view favourable to the accused should be taken, (iii) the Court is to take into account the fact that the trial Judge had the advantage of looking at the demeanour of witnesses and (iv) the accused is entitled to the benefit of doubt. The said principle has been laid down by the apex Court in C.Magesh and others v. State of Karnataka, 2010(5) SCC 645= 2010(4) Supreme 180.
14. In view of the aforesaid facts and circumstances, we are not inclined to interfere with the impugned order acquitting the 9 respondent from the charge under Section 302, IPC and convicting him under Section 323, IPC. The respondent having deposited the fine and undergone the sentence, the Government Appeal fails and the same is dismissed.
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Dr.B.R.Sarangi, J.
S.Panda, J. I agree.
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S.Panda,J.
Orissa High Court, Cuttack
The July 17, 2013/PKSahoo