Orissa High Court
Naresh Parida; Basudev Parida vs State Of Odisha on 7 March, 2024
Bench: D.Dash, G.Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.658 of 2019
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 29th August, 2019 & 30th August, 2019
respectively passed by the learned Additional Sessions Judge,
Kujang in Criminal Trial Nos.13 & 140 of 2014.
Naresh Parida; Basudev Parida .... Appellants
& Jagdish Parida
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellants - M/s.Ramani Kanta Pattanaik, B.C. Parija & A. Panda (Advocates) For Respondent - Mr.P.K.Mohanty, Additional Standing Counsel Mr.D.Nayak Senior Advocate for the Informant CORAM:
MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing :23.02.2024 : Date of Judgment : 07.03.2024 D.Dash, J. The Appellants, by filing this Appeal, have assailed the judgment of conviction and order of sentence dated 29th August, 2019 & 30th August, 2019 respectively passed by the learned Additional Sessions Judge, Kujang in Criminal Trial Page 1 of 15 CRLA No.658 of 2019 {{ 2 }} Nos.13 & 140 of 2014 arising out of G.R Case No.882/882(A) of 2013, corresponding to Ersama P.S. Case No.102 of 2013 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Paradeep at Kujang.
The Appellants (accused persons) thereunder have been convicted for commission of offence under section 302/34 of the Indian Penal Code, 1860 (in short, 'the IPC'). Accordingly, each of them 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 six (6) months for commission of the said offence.
2. PROSECUTION CASE:-
On 17.08.2013 around 7.00 p.m. one Charulata Rout (Informant-P.W.3) lodged a written report, being scribed by one Krushna Mohan Rout (P.W.1) with the Inspector-in-Charge (I.I.C.) of Erasama Police Station stating therein therein that on that day around 7.00 am, four co-villagers, namely, Basudev Parida, Naresh Parida, Jagdish Parida and his wife Bidusmita Parida were forcibly loading wooden logs of the Informant (P.W.3) in a tractor. When this was going on, the husband of the Informant (P.W.3), namely, Ratnakar came forward to protest. He was abused by those persons engaged in loading and then Ratnakar was assaulted by accused Naresh with a crowbar, which resulted his fall on the ground. It is further stated that Page 2 of 15 CRLA No.658 of 2019 {{ 3 }} Basudev, who is the father of the accused Naresh then aged more than seventy years, Jagdish Parida, the brother of accused Naresh and Bidusmita, the wife of accused Basudev assaulted Ratnakar by wooden plank causing serious injuries on his person. The Informant (P.W.3) and the brother of Ratnakar, namely, Sunakar (P.W.4) tried to intervene and restrain the accused persons, but they were abused and Sunakar causing was assaulted bleeding injury on his head. Thereafter, having thought that Ratnakar died, all the accused persons left the spot.
Basing on the above report, the I.I.C. registered the criminal case and took up investigation.
3. In course of investigation, the Investigating Officer (I.O.- P.W.9) examined the informant (P.W.3), the scribe of the FIR (P.W.1) and other witnesses. He issued injury requisition (Ext.5) to the Medical Officer, CHC, Erasama to furnish injury report of Ratnakar (deceased) and Sunakar (P.W.4). He (P.W.9), having visited the spot, prepared the spot map (Ext.9). On the same day, he (P.W.9) seized wooden log and two numbers of branches at the spot under seizure list (Ext.10). He (P.W.9) seized one crowbar from the betel vine of Basudev under seizure list (Ext.11). On 30.08.2013, the I.O. (P.W.9) seized one sale deed of the disputed land and found that one Fula Swain of Village- Uchhanuagaon had executed the same in favour of Sunakar (P.W.4) for which he (P.W.9) requested the Tahasildar to make a Page 3 of 15 CRLA No.658 of 2019 {{ 4 }} demarcation. Upon receipt of the U.D. Case record from Mangalabag P.S., Cuttack, the I.O. (P.W.9) came to know that Ratnakar died at S.C.B. Medical College & Hospital at Cuttack and that the inquest over the dead body of Ratnakar had already been conducted. Thereafter, the dead body of the deceased was sent for post mortem examination. The wearing apparels of the deceased, scalp hair, nail clippings and blood sample of the deceased were seized under seizure list (Ext.7). The officer, who held the inquest over the dead body of the deceased was also examined by the I.O. (P.W.9). The I.O. (P.W.9) sent the seized incriminating articles for chemical examination through Court.
On completion of investigation, Final Form was submitted placing these accused persons except accused Bidusmita to face the Trial.
4. Learned J.M.F.C. (P), Kujanga on receipt of the Final Form, took cognizance of the offence under section 323/307/302/34 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 these accused persons.
5. In the trial, the prosecution examined in total twelve witnesses. Out of them, as already stated, P.W.3 is the informant whereas P.W.1 is the scribe of the FIR (Ext.1). P.W.4 is the brother of the deceased and also an injured. P.W.5 is the Doctor, who first Page 4 of 15 CRLA No.658 of 2019 {{ 5 }} treated the deceased and other injured Sunakar whereas P.W.8 is the Doctor, who conducted the autopsy over the dead body of the deceased. P.Ws.6 & 10 are the two police personnels, who are the two witnesses to the seizure of wearing apparels of the deceased and the nail clippings. P.W.7 is a co-villager of the accused as also the deceased. P.W.11 is the S.I. of Police, who inquired into the U.D. Case. The I.O, of the case has been examined as P.W.9.
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 24. Important of those are the F.I.R. (Ext.1), Inquest Report (Ext.3) and Postmortem Examination Report (Ext.8). The spot map prepared by the I.O. (P.W.9) has been admitted in evidence and marked as Ext.9 whereas Chemical Examination reports are Exts.23 & 24.
7. The plea of the accused persons' during the trial as seen from the statement under section 313 Cr.P.C, are that the disputed land belongs to them and whey they were taking away their wooden logs by tractor, it was protested by the deceased and other persons, who sustained injury due to fall of wooden logs on them from the tractor. In support of such plea, the accused persons have examined five witnesses. Page 5 of 15 CRLA No.658 of 2019
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8. Mr.R.K. Pattanaik, learned counsel for the Appellants (accused persons) submitted that with the available evidence on record, the conviction of accused Basudev and Jagdish for committing the murder of Ratnakar, with the aid of section 34 of the IPC, is not at all sustainable when it has not been proved that the blows given by them are fatal and led to the death of Ratnakar and when the evidence on record clearly suggest that the incident took place after the protest was raised by Ratnakar there at the spot where the accused persons were loading the wooden logs in the tractor. He next submitted that the nature of death of Ratnakar, having been proved to be homicidal even accepting the evidence of the prosecution witnesses with regard to the role played and the act done by the accused as against Ratnakar, he ought not to have been convicted for committing the offence under section 302 of the IPC when the surrounding circumstances, as have emanated from the evidence let in by the prosecution are viewed in their proper perspective. He, accordingly, urged for setting aside the impugned judgment of conviction and order of sentence passed in respect of accused persons, namely, Basudev & Jagdish and for alteration of the conviction of accused Naresh to one under section 304-I of the IPC and accordingly, he contended that the accused afresh be visited with the sentence as deemed appropriate for the said offence.
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9. Mr.P.K. Mohanty, learned Additional Standing Counsel for the Respondent-State submitted all favour of the finding returned by the Trial Court that the accused persons are liable for commission of the offence under Section 302/34 of the I.P.C. According to him, the prosecution evidence with regard to the incident, as stated by the Informant (P.W.3), the wife of the deceased, is clear with regard to the role played and what the accused persons did in the said incident. He submitted that accused Naresh dealt the blow, by a heavy weapon and as that part of the evidence of P.W.3 is wholly believable, the conviction of that accused Naresh under section 302 of the IPC cannot be found fault with. He further submitted that all the other accused persons have joined and they, being the father and son of accused Naresh in assaulting the deceased by wooden plank, the Trial Court did commit no mistake in hold them guilty of commission of murder with the aid of section 34 of the IPC.
Mr.D. Nayak, learned Senior Counsel for the Informant adopted the submission of the learned Additional Government Advocate for the Respondent-State.
10. Before addressing the submission, as above, we are led to examine the evidence of the Doctor (P.W.5), who had examined Ratnakar at Erasama Community Health Centre where the deceased had been first taken for treatment. He found hematoma over the right frontal region, left frontal region and right eye with Page 7 of 15 CRLA No.658 of 2019 {{ 8 }} a suspected skull fracture with intra cranial hemorrhage. It is not his evidence that those injuries are the result of repeated blows by the hard and blunt object.
The evidence of the Doctor (P.W.8), who conducted the autopsy over the dead body of Ratnakar is to the effect that on dissection, he found thick sub-scapal contusion throughout left Zygom fractured and depressed and fracture of scalp etc. The other injures on the parts other than the head of the deceased are stated to be possible with any light force being exerted. He has further stated that the fracture of Zygom is possible if any external pressure is applied with force by means of a heavy object. His positive evidence is that the injuries as noted in the post mortem report are possible if any heavy object falls upon the head of somebody. The prosecution, with the above evidence coupled with the evidence of the I.O. (P.W.9), who had held inquest over the dead body of the deceased and had noted the injuries in his report (Ext.3) and also other witnesses, is found to have proved that Ratnakar met a homicidal death.
11. 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.Ws.1 to P.W.12 and D.Ws.1 to 5) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.24. Page 8 of 15 CRLA No.658 of 2019
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12. P.W.1 is the brother of the Informant (P.W.3), who is the wife of the deceased. He has not seen the occurrence, but came to know about the incident later and then he accompanied P.W.3 to the P.S. for lodging the FIR (Ext.1). It be stated at the stage that the incident, having taken place on 17.08.2013 morning, the death took place after the deceased was shifted to S.C.B. Medical College & Hospital, Cuttack in the afternoon.
Now, comes the most important witness for the prosecution, who is the wife of the deceased and the informant (P.W.3). It is her evidence that her husband (deceased) and brother-in-law, namely, Sunakar (P.W.4) had cut one jackfruit tree and some Akasia trees standing on their land at Village- Khuranta. The logs were lying. She has stated that the land was recorded in the name of Sunakar (P.W.4) and that Sunakar (P.W.4), with his family members were residing over the land. It is her evidence that she was present in their house during the previous night and in the morning, the accused persons came with a tractor to take those logs and when that was protested by Ratnakar (deceased), they abused. Her further evidence is that accused Naresh, who was holding a crobar, dealt a blow by that crowbar, which she says to be a powerful one resulting the fall of Ratnakar on the ground. Then she states that accused Jagdish and Basudev assaulted by split wood and it is also stated that Bidusmita went on assaulting her husband and when her Page 9 of 15 CRLA No.658 of 2019 {{ 10 }} brother-in-law (P.W.4) intervened, he was assaulted by accused Jagdish and Basudev by that wooden plank and thereafter when she and others requested the accused persons not to proceed further, they were abused. She has stated to have told during her examination in course of investigation that accused Naresh dealt the blow on the head of her husband by the crowbar, which he was using to roll the logs at the time of loading of those in the tractor. So, here we find that in the incident, accused Naresh is said to have used the crowbar in assaulting the deceased, which he was carrying for being used in the loading of the logs. She denies to have any knowledge if Babaji Sahu had alienated the disputed land in favour of Nirupama Parida. She is also not in a position as to if Nirupama was in possession of the disputed plot having purchased the same by virtue of the registered sale deed. Her evidence is that all the accused persons including Bidusmita were engaged in loading. So, when she is silent as to the possession of the land in question, which concerns with the ownership of the trees, it is not possible to say that the plea of the accused persons that they were the owners of the trees and so were carrying the logs as totally false.
Coming to the evidence of P.W.4, who is Sunakar, the brother-in-law of the Informant (P.W.3), we find him to have stated that they had cut some Akasia tress and one Jackfruit tree standing over his land and the accused persons then were Page 10 of 15 CRLA No.658 of 2019 {{ 11 }} loading those logs lying on their plot in a tractor. He further states that he and his brother Ratnakar protested as to such forcible lifting of the logs by the accused persons. P.W.3 is, however, silent as to protest being ever made by P.W.4. She confines that the protest was only by the deceased. It is the evidence of P.W.4 that no sooner did the protest was made, accused Naresh dealt on the head of Ratnakar, which led to his fall on the ground. Then he states that accused Jagdish and Basudev assaulted Ratnakar by split wood on his face. His evidence is to the extent that Bidulata, the daughter-in-law of Basudev and wife of accused Jagdish then rushed to the spot and stood with other accused persons. His further evidence is that accused Basudev, Naresh and Jagdish went on assaulting the deceased and when he protested, accused Jagdish assaulted him by means of a split wood whereas accused Basudev assaulted on his left shoulder. His further evidence is that when his wife Susama and the wife of deceased, namely, Charulata (P.W.3) requested, the accused persons not to assault Ratnakar, they were abused by saying "BEDHA CHINDALA", which words are of course not told by P.W.3. When P.W.4 states that they had pushed and pulled Susama and Charulata (P.W.3), Charulata (P.W.3) does not state so. When it is said that the land is his land, this P.W.4 states to have not been in custody of the Record of Right and rent receipts though P.W.3 says that such records were Page 11 of 15 CRLA No.658 of 2019 {{ 12 }} in the name of P.W.4. He further states that the accused persons had earlier cut and sold some trees. His evidence is also to the effect that the accused persons had brought the crowbar and split wood when they had come to the spot to lift he wooden logs. His further evidence is that the record of right of the spot land does not stand in the name of the deceased. During cross-examination, he has stated that he had not stated during investigation that the logs were lying at the spot land and accused Jagdish assaulted his brother by means of split wood near the right ear drum of his brother and that he assaulted by means of split wood on the face of his brother. That has been proved by drawing the attention of the I.O. (P.W.9), who has stated that P.W.4 had not told before him that when they protested regarding the taking of the logs by the accused persons, they replied by uttering those words as P.W.4 has stated during his evidence. He has also proved that P.W.4 had not stated that accused Jagdish had assaulted Ratnakar by split wood (Katha Falia) but by Katha Dalia and that was the same in relation to the role of the accused Basudev. P.W.9 has stated that it was the version of P.W.3 that the land stood in the name of Sunakar. This witness has stated that Katha Falia and Katha Dalia are not the same.
13. The defence case is that when the logs being loaded were joining to be transported, the deceased Ratnakar untied the rope for which the log fell on him and Sunakar (P.W.4), which Page 12 of 15 CRLA No.658 of 2019 {{ 13 }} caused injuries on them. It has been deposed by D.W.1 that one Babju Sahu had alienated the land in favour of the mother of accused Jagdish and it was under a registered sale deed. The ROR stands recorded in the name of mother of accused Jagdish. The registered sale deed, the ROR and the rent receipts have been proved.
With the above evidence on record, when we find the roles of accused Basudev and Jagdish in the said incident in assaulting the deceased Ratnakar by means of a split wood have not been established beyond reasonable doubt in view of the prevaricating statements made by the witnesses (P.Ws.3 & 4) and at the same time, we find the evidence of P.W.7 that the logs have fallen on the ground and both Sunakar (P.W.4) and Ratnakar (deceased) sustained injuries on account of that. We, however, find the evidence of P.Ws.3 & 4 to be consistent on the score that accused Naresh had given a blow by means of crowbar on the head of the deceased. The witnesses have stated that accused Naresh had given the solitary blow. The crowbar was being used by him in loading the logs. The land does not stand recorded in the name of Sunakar (P.W.4) and Ratnakar (deceased), P.Ws.3 & 4 claim that the logs were belonging to them when counter claim is also made by the accused persons, which is supported by the record of right proved. There was no prior planning for the incident and it happened all of a sudden when the deceased came and protested Page 13 of 15 CRLA No.658 of 2019 {{ 14 }} in which Sunakar (P.W.4) stated to have joined when from the beginning, the wife of accused Jagdish had been arraigned as an accused, she has not been asked to face the trial although P.Ws.3 & 4 have attributed some role to her. Thus, there appears the doubt in mind that the prosecution has not come to place the correct picture as to the actual reason for the incident where some distorted facts are placed. The death in the case has not taken place instantaneously.
So, the evidence, as above, discussed being cumulatively viewed, with the fact that the parties hail from rural pocket of the State where ordinarily their temper run high and for silly reasons, they many a times behave differently, at times in a quite an unexpected manner; we are of the view that the offence could be properly categorized as one punishable under section 304-I of the IPC so far as the accused Naresh is concerned. We are thus of the considered opinion that for the role played by accused Naresh and the act done, he would be liable for conviction under Section 304-I of the IPC.
For all the aforesaid discussion of evidence, the judgment of conviction and order of sentence dated 29th August, 2019 & 30th August, 2019 respectively passed by the learned Additional Sessions Judge, Kujang in Criminal Trial Nos.13 & 140 of 2014 passed in respect of accused persons, namely, Basudev Parida & Jagdish Parida, are hereby set aside.
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{{ 15 }} In so far as accused Naresh Parida is concerned, this Court alters the judgment of conviction under Section 302 of the IPC to one under section 304-I of the IPC. Consequently, he (Naresh Parida) is sentenced to undergo rigorous imprisonment for a period of ten (10) years.
14. The Appeal is accordingly allowed in respect of accused Basudev Parida and Jagdish Parida in setting aside the judgment of conviction and order of sentence running against them and, therefore, their bail bonds shall stand discharge. The Appeal filed by accused Naresh Parida is allowed in part with the alteration of conviction and modification of sentence to the extent as indicated above.
(D. Dash), Judge.
G. Satapathy, J. I Agree.
(G.Satapathy), Judge.
Signature Not Verified Basu Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 11-Mar-2024 18:22:33 Page 15 of 15 CRLA No.658 of 2019