Orissa High Court
An Appeal From Judgment And Order Dated ... vs State Of Odisha on 10 January, 2024
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.77 OF 2005
An appeal from judgment and order dated 23.03.2005 passed by
the Additional Sessions Judge, Rayagada in Criminal Trial No.13 of
2003.
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Prasanna Kumar Patra ........ Appellant
-Versus-
State of Odisha ........ Respondent
For Appellant: - Ms. Susmita Pattnaik
Advocate
For Respondent: - Mr. Sonak Mishra
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE S.K. MISHRA
---------------------------------------------------------------------------------------------------
Date of Hearing and Judgment: 10.01.2024
--------------------------------------------------------------------------------------------------- By the Bench: The appellant Prasanna Kumar Patra faced trial in the Court of learned Additional Sessions Judge, Rayagada in Criminal Trial No.13 of 2003 for commission of offence under section 302 of the Indian Penal Code (hereafter 'I.P.C.') on the accusation that on 06.06.2003 at 5.00 p.m., at village Khamasingi, he committed murder of Janardhan Pradhan (hereinafter 'the deceased'). [2]
The learned trial Court, vide impugned judgment and order dated 23.03.2005, found the appellant guilty of the offence charged and sentenced him to undergo imprisonment for life under section 302 of the I.P.C. and to pay a fine of Rs.5,000/-, in default of payment of fine, to undergo rigorous imprisonment for six months. Prosecution Case:
2. As per the first information report (hereinafter 'the F.I.R.') lodged by Raghunath Pradhani (P.W.4), the prosecution case, in short, is that on 06.06.2023 at about 5 p.m., he was taking tea in his own house, which is situated at village Khamasingi and at that point of time, P.W.8 Krushna Chandra Patra, who was a boy aged about 13 years, came to his house and informed him that the deceased was assaulted by the appellant with a tangia (axe) on the right side shoulder while he was returning from the shop of a co-villager, as a result of which, the deceased was lying injured at the spot. Upon getting such message from P.W.8, P.W.4 rushed to the spot and found that the deceased was lying on the ground with bleeding injury and the weapon was pierced into the back of his body, which was brought out by P.W.9 Bishnu Patra. The appellant and his family members had left the spot. The informant along with some of the co-
villagers brought the deceased in that injured condition to Kolnara Hospital. It is further stated in the F.I.R. that suspecting the deceased to be practising witchcraft, the appellant committed the crime. It is Page 2 of 23 [3] further stated that fifteen to sixteen days prior to the occurrence, since there was a quarrel between both the families i.e. the families of the appellant and the deceased over the issue of practising witchcraft, a report was presented in the outpost for which the officer-in-charge of the outpost called the parties and had settled the dispute.
On the oral report of P.W.4, one Trinath Karjhi reduced the same into writing and the same was presented before the officer- in-charge of Chandili police station on 06.06.2003 at 7.30 p.m. Accordingly, Chandili P.S. Case No.75 dated 06.06.2003 was registered under sections 341/326/307 of the I.P.C.
P.W.6 Dr. G. Shyalaji, who was the medical officer attached to Kolnara P.H.C., examined the deceased, noticed one injury on right subscapular fossa and gave four stitches on the wound and then, the deceased was referred to the District Headquarters Hospital, Rayagada, where he died at 12.05 a.m. (mid night on the very day).
P.W.11 Uma Sankar Panda, the officer-in-charge of Chandili police station, after registering the case, directed P.W.12 Prasanta Kumar Singsamanta, A.S.I. of police to investigate the case. He visited the spot, examined the informant and proceeded to Kolnara P.H.C. to see the injured, issued requisition to the Medical Officer, P.H.C., Kolnara for medical examination as per seizure list Ext.6/2. P.W.12 also visited the spot, prepared the spot map vide Ext.15 and Page 3 of 23 [4] seized the weapon of offence i.e. axe (M.O.I) being produced by Raghunath Pradhani (P.W.4) in the presence of the witnesses and prepared the seizure list as per Ext.1. He again visited the spot and seized sample earth and blood stained earth from the spot in the presence of witnesses and prepared the seizure list as per Ext.2. On receiving the death news of the deceased, he reached at District Headquarters Hospital, Rayagada where he held inquest over the dead body in presence of the witnesses and prepared the inquest report as per Ext. 16. He sent the dead body for post mortem examination and informed P.W.11 that the case turned to one under section 302 of the I.P.C.
Subsequently, P.W.11 took over the charge of investigation from P.W.12. P.W.11 visited the spot, prepared the spot map vide Ext.8, examined the witnesses, seized the command certificate and wearing apparels of the deceased on production by the escort constable and sent the weapon of offence and made a query from the M.O., P.H.C., Kolnara as per query report Ext.10. He has also sent the injured Bishnu Patra (P.W.9) to P.H.C. Kolnara for his medical examination and received the query report from the medical officer vide Ext.10/2. He also took steps for sending the material objects to R.F.S.L., Berhampur through S.D.J.M., Rayagada and received the post mortem report (Ext.5) and received injury report in respect of P.W.9 from the Medical Officer, P.H.C., Kolnara. He also Page 4 of 23 [5] seized the bed head ticket in respect of the deceased from the District Headquarters Hospital, Rayagada as per seizure list Ext.13. After completion of investigation, he submitted charge sheet under section 302 of the I.P.C. against the appellant.
Framing of Charge:
3. After submission of charge sheet, the case was committed to the Court of Session after due compliance of committal procedure, where the learned trial Court framed charge against the appellant as aforesaid. As the appellant pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to establish his guilt.
Findings of the Trial Court:
4. The learned trial Court, after assessing the oral as well as the documentary evidence on record, came to hold that the prosecution has been able to establish the background of the case and the motive behind the commission of the crime. The learned trial Court accepted the evidence of the eye witnesses to the occurrence i.e. P.Ws.3 and 8 and also the report of the doctor that the deceased suffered a homicidal death. Accordingly, it concluded that the appellant is the author of the crime and the death of the deceased was caused by an axe blow inflicted on his person by the appellant and thus, found the appellant guilty under section 302 of the I.P.C.Page 5 of 23 [6]
Prosecution Witnesses, Exhibits & Material Objects:
5. In order to prove its case, the prosecution examined as many as fourteen witnesses.
P.W.1 Laxmi Chandra Choudhury is a post-occurrence witness to the incident. He is also a witness to the seizure of axe as per seizure list Ext.1.
P.W.2 Udayanath Behera is the neighbour of both the appellant and the deceased. He is a witness to the seizure of the weapon of offence, i.e. axe as per seizure list Ext.1 and seizure of sample earth and blood stained earth as per seizure list Ext.2.
P.W.3 Arjuna Karji is an eye witness to the occurrence who stated that when the deceased was coming on the village road, the appellant came out from his house being armed with an axe and gave a blow to the deceased, as a result of which the deceased fell down on the ground. He further stated that after dealing the axe blow, the appellant ran away from the spot.
P.W.4 Raghunath Pradhani is the younger brother of the deceased and also the informant in this case. He stated that he was informed by P.W.8 about the appellant assaulting the deceased with an axe. According to him, the appellant suspecting the deceased to be practising witchcraft, dealt axe blows on him. Page 6 of 23 [7]
P.W.5 Dr. M. Suresh Kumar was the Eye Specialist, District Headquarters Hospital, Rayagada. He gave preliminary treatment to the deceased and referred him to the Surgery Specialist. After the death of the deceased, he conducted post mortem examination over his dead body and proved his report vide Ext.5.
P.W.6 Dr. G. Shyalaji was posted as the Medical Officer at Kolnara P.H.C. On police requisition, she medically examined the deceased as well as P.W.9 and proved her reports vide Exts.6 and 7 respectively.
P.W.7 Prasanta Kumar Pradhani is the son of the deceased. He stated that hearing the cry of P.W.8 about assault on the deceased by the appellant, he came out and found the deceased lying with an axe affixed on his back. He further stated that he along with P.W.9 chased the appellant. He further stated that the appellant assaulted the deceased suspecting him to be practising witchcraft.
P.W.8 Krushna Chandra Patra is the nephew of the deceased, who stated that the appellant assaulted the deceased by means of an axe from behind, as a result of which the deceased fell down on the road.
P.W.9 Bishnu Patra was the nephew of the deceased. He stated that on the relevant day, he came to the place of occurrence upon hearing a hullah and saw the deceased lying with injury in front of the house of the appellant. He also stated that an axe was affixed Page 7 of 23 [8] to the body of the deceased and he removed the same from the body. He further stated that the appellant ran away from the spot and was chased by P.W.7 and he also chased and caught hold of him.
P.W.10 Lalit Mohan Panda was working as a constable in Chandili Police Station who accompanied P.W.12 to the spot of occurrence. After the post-mortem examination, he produced the wearing apparels of the deceased before P.W.11.
P.W.11 Uma Sankar Panda was the Officer-in-Charge of Chandili Police Station who received the written report from the informant and directed P.W.12 to take up investigation after registration of the F.I.R. Subsequently, he took over the charge of investigation from P.W.12 and upon completion of investigation, submitted charge sheet against the appellant.
P.W.12 Prasanta Kumar Singsamanta was working as the A.S.I. of Police in Chandili Police Station who initially took up investigation of the case. However, when the case turned out to be one under section 302 of the I.P.C., after the death of the deceased, he handed over the charge of investigation to P.W.11.
The prosecution proved seventeen documents as exhibits. Exts.1, 2, 9 and 13 are the seizure lists, Ext.3 is the written report, Ext.4 is bead head ticket, Ext.5 is the post-mortem report, Ext.6 is the injury report of Janardhan Pradhani, Ext.7 is the injury report of Bishnu Patra, Ext.8 is the spot map, Ext.10 is the query made to the Page 8 of 23 [9] I.O., Ext.11 is office copy of the forwarding letter of S.D.J.M., Rayagada to R.F.S.L., Berhampur, Ext.12 is the prayer of P.W.11 for sending the M.Os. to R.F.S.L., Berhampur, Ext.14 is the chemical examination report, Ext.15 is the spot map, Ext.16 is the inquest report and Ext.17 is the dead body challan.
The prosecution produced two material objects. M.O.I is the axe and M.O.II is the lungi.
Contention of the Parties:
6. Ms. Susmita Pattnaik, learned counsel appearing for the appellant contended that out of the two eye witnesses, the evidence of child witness (P.W.8) is not acceptable inasmuch as the learned trial Court before recording the evidence of P.W.8 had not put any questions to him to test his competency to depose and as his presence at the spot has not been proved by the other eye witness i.e. P.W.3., it is very difficult to accept his evidence. The learned counsel further argued that the prosecution has not established any motive behind commission of the crime. Though it is the prosecution case that fifteen days prior to the date of occurrence, there was some dispute between the parties relating to the issue of practising witchcraft by the deceased, but no report on this aspect has been proved during the trial. She further argued that as a single blow was given on the right shoulder of the deceased, it cannot be said that the appellant had intention to commit the murder of the deceased and the Page 9 of 23 [ 10 ] overt act committed by the appellant can at best come within the purview of section 304 Part-II of the I.P.C. She further submitted that since the appellant had remained in the judicial custody for about six years and seven months and he has not been released on bail during the trial and thereafter, vide order of this Court on 29.01.2010, he has been released on bail, the sentence be reduced to the period already undergone.
Mr. Sonak Mishra, learned Addl. Standing Counsel, on the other hand, submitted that merely because no formal preliminary questions have been made to P.W.8 and the trial Court has not recorded its satisfaction that the witness was able to understand the questions and give rational answer thereto, his evidence cannot be discarded. Learned counsel argued that the manner in which P.W.8 has deposed in the Court and the way he has answered the cross examination by the learned defence counsel indicate that he is a competent witness. The learned counsel further argued that even though P.W.8 has not stated about the presence of P.W.3, who was sitting on the Verandah, but that cannot be a ground to disbelieve the presence of the witness. Similarly, when the main portion of the evidence of P.Ws.3 and 8 relating to the assault by the appellant on the deceased is corroborating each other which also gets support from the medical evidence and the evidence on record has come that there was motive behind the commission of crime as the family members of Page 10 of 23 [ 11 ] the appellant were suspecting the deceased to be practising witchcraft and the injury sustained by the deceased has been opined to be sufficient in ordinary course of nature to cause death by the doctor, who conducted post mortem examination, no infirmity can be found in the impugned judgment and therefore, the appeal should be dismissed.
Whether the deceased met with a homicidal death?:
7. Adverting to the contentions raised by the learned counsel for the respective parties, let us first see that how far the prosecution has proved that the deceased met with a homicidal death.
The deceased was first examined by the medical officer (P.W.6) attached to Kolnara P.H.C. on 06.06.2003 at 7.30 p.m. and she opined that the injury was grievous in nature and was caused within 24 hours of the examination. She gave four stitches to the wound and referred the deceased to the District Headquarters Hospital, Rayagada. P.W.5 has stated that the deceased died on 05/06.6.2003 at 12.05 a.m. (mid-night) and he conducted post mortem examination over the dead body on 07.06.2003 and found the following injuries on the body of the deceased:
External injuries:
Stitched cut wound of size 5" x 4" deep and 1 ½" width on the back extending from neck to scapula. Internal injury:
Page 11 of 23
[ 12 ] On dissection, chest wall of right side swollen. There was fracture of 2nd, 3rd and 4th ribs of the back side with cut injury on lungs. The cause of death was due to hemopneumothorax (air and blood defused on the chest cavity).
He further opined that the injury in an ordinary course of nature was possible to cause death and it can be caused by sharp cutting weapon. He proved the post mortem report (Ext.5).
On a careful perusal of the inquest report (Ext.16), the evidence of the doctor (P.W.5) and the finding of the post mortem report (Ext.5), we are satisfied that the learned trial Court was justified in arriving at a conclusion that the deceased met with a homicidal death.
Evidence of the child witness (P.W.8) and his competency to testify:
8. Now coming to the evidence of P.W.8, the child witness, it is very clear that no preliminary examination of this witness has been done and the learned trial Court has not arrived at the satisfaction that he was able to give rational answers and therefore, he is a competent witness. Against this backdrop, the moot question which crops for consideration before us is that whether the evidence rendered by P.W.8 is susceptible to be discarded merely because no formal questions were put to him by the learned trial Court to assess his competency to depose before recording his testimony. For Page 12 of 23 [ 13 ] answering this question, a reference to section 118 of the Evidence Act becomes inevitable, which provides as to who may testify in a Court. The provision reads as follows:
"All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."
The plain meaning that can be deduced from the aforesaid section is that competency of a person to testify in a Court of law is the rule and incompetency thereof is an exception and not the vice versa. Every person is deemed to be competent to give evidence unless the Court considers him incompetent to testify because of his lack of prudence to understand the questions put by it or to give answers thereof rationally. It may be appropriate on our part to reiterate that 'tender age' does not per se makes a person incompetent to give evidence. The Courts must understand and appreciate the fact that the above caution provided under section 118 of the Evidence Act for tender age of the witness is not merely for his tender age, rather it is due to his probable incapacity to understand questions and give answers which makes him incompetent to testify. However, if a small child, despite of being a person of tender age, understands and answers rationally, there is Page 13 of 23 [ 14 ] hardly any logic in discarding his evidence by pressing upon technicalities.
This Court in the case of Damodar Das vs. State of Orissa, reported in 2019 (2) Crimes 576 (Orissa) has held that putting preliminary questions to a child witness to assess him competence to depose before a Court is a rule of prudence and not a strict legal obligation. The relevant observations are reproduced as follows:
"8. There is no dispute that in view of section 118 of the Evidence Act, all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions due to tender years etc. No particular age has been prescribed as a demarcating line for treating a witness incompetent to testify by reason of his/her tender age. Competency to testify depends on ability to understand questions and to give rational answers. It depends on the capacity and intelligence of the child witness, his appreciation of difference between the truth and falsehood as well as his duty to speak truth. When a witness is called upon to give evidence and there is reason to suspect that he/she may not be capable of giving rational answers to the questions put to him/her, it is but necessary for the Court to put some questions to such witness with a view to ascertain whether he/she is a competent witness to Page 14 of 23 [ 15 ] give evidence or not. There is no dispute that since a child witness is prone to tutoring, his/her evidence should be scanned carefully and preliminary questions are required to be put to such witness to ascertain as to whether he/she has intellectual capacity to understand the questions and give rational answers thereto. The preliminary examination of a child witness is nothing but a rule of caution. The trial Court is required to record its query to a child witness in the form of questions and answers so that the Appellate Court will be in a position to see whether child witness understands the duty of speaking truth. Even though it is desirable to make such preliminary examination but it is not always imperative. There is no rule that in case of every child witness, the trial Court should conduct a preliminary examination. It is only a rule of prudence and not a legal obligation. When questions are raised regarding the intellectual capacity of the child witness, the Court can peruse the evidence of the victim in its entirety to find out as to whether he/she was capable enough to give rational answers to the questions put to him/her after understanding the same. Absence of preliminary examination of the child witness would not render his/her evidence inadmissible. The victim in this case was aged about 14 years at the time of her deposition. Even though the learned trial Court has not put any formal questions to the victim to testify her competency but the nature and tenor of the evidence of the victim, the manner in Page 15 of 23 [ 16 ] which she has deposed about the occurrence in examination-in-chief and also faced and stood the test of searching cross-examination by the defence counsel, I am satisfied about the competency of the victim girl and I am not inclined to accept the contention raised by the learned counsel for the appellant that the evidence of the victim should be rejected in toto as the learned trial Court has not made any preliminary examination of the victim. However, I have to scan the evidence of the victim more carefully and with greater circumspection to convince myself regarding the quality and reliability of her version."
[Emphasis supplied] In view of the ratio laid down in the aforesaid decision, we are of the view that even though the preliminary examination of P.W.8 has not been done and no finding is recorded by the learned trial Court that the child witness, who was aged about 14 years at the time of his deposition, is a competent witness, still on that score alone his evidence cannot be discarded. Further, according to P.W.8, he was reading in Class VII at the time of incident. The manner in which he faced the questions and explained the incident, it seems improbable that he was incompetent to depose and therefore, it would not be apposite on our part to reject the otherwise validly recorded evidence basing upon some ultra-technicalities.
Page 16 of 23
[ 17 ] Whether the eye witnesses are reliable and trustworthy?:
9. According to P.W.8, on the date of occurrence, he was called by the deceased to his house for the purpose of taking ripe jack fruits and while he along with the deceased was proceeding on the road, near the house of Govinda Patra, the appellant came from behind and dealt an axe blow on the back of the deceased, as a result of which, the deceased fell down on the road. The axe was affixed on the back of the deceased and after inflicting the blow, the appellant ran away and stood at a distance of 10 to 12 feet. P.W.8 further stated that he ran to the house of P.W.4 and called him. He further stated that P.W.7 chased the appellant and P.W.9 Bishnu Patra also arrived there, removed the axe from the body of the deceased and handed it over to P.W.4 and then P.W.9 chased the appellant and caught hold of him, but the appellant gave teeth bite and entered into his house.
In the cross-examination, P.W.8 has stated that while wandering, he met the deceased accidentally prior to the incident. He was invited by the deceased for taking ripe jack fruit. He further stated that while he along with the deceased was going on the road, he was to the left of the deceased. He further stated that he had seen the appellant giving an axe blow on the back of the deceased and the appellant coming from the house of his uncle (Bada Bapa) carrying an axe and the house of the uncle of the accused was at a distance of 5 Page 17 of 23 [ 18 ] to 6 cubits from him when the appellant came out with the axe. The witness has further stated that at the time of incident, there was no one near the place of occurrence and as per his personal estimation, he was the only person, who had seen the appellant dealing an axe blow. From his testimony, it is apparent that he saw only one axe blow given to the deceased.
The learned counsel for the appellant submitted that if the version of P.W.8 that nobody was around the spot during the occurrence is taken to be true, then version of P.W.3 that he was sitting on the front verandah of his house is not acceptable. We are not inclined to accept such submission. P.W.3 has clearly deposed that he was sitting on the front verandah of his house at the time of occurrence and he saw that when the deceased was coming on the village road, the appellant came out from the house being armed with an axe and dealt an axe blow to the deceased, as a result of such assault, the deceased fell down on the ground and the axe remained affixed on the back of the deceased and the occurrence took place at a distance of about 10 to 12 cubits from his verandah. P.W.3 further stated that the appellant was running away from the spot after dealing the axe blow and after the incident, the villagers came and the injured was shifted to Kolnara Hospital.
The learned counsel for the State, on the other hand, submitted that even though P.W.8 has stated that he had not seen Page 18 of 23 [ 19 ] anybody at the place of occurrence, but the presence of P.W.3 on his verandah might have missed the notice of P.W.8 and therefore, on this statement of P.W.8, the presence of P.W.3 on the verandah cannot be doubted. Nothing has been brought out in the evidence of P.W.3 at all to disbelieve his evidence. Moreover, the evidence of P.W.8, after the occurrence in reporting the matter before P.W.4 amounts to res gestae, which is admissible under section 6 of the Evidence Act, inasmuch as P.W.4 has stated that P.W.8 came to his house and informed him that the appellant dealt an axe blow on the deceased for which he rushed to the spot. Therefore, merely because P.W.3 has not stated about the presence of P.W.8 along with the deceased and P.W.8 has made a statement that there was none near the place of occurrence, the evidence of both the witnesses cannot be discarded. We are of the view the learned trial court has rightly placed reliance on the evidence of these two eye witnesses. Whether the appellant had any motive to kill the deceased?:
10. Though it is stated by P.W.4, the younger brother of the deceased that 15 days prior to the incident, there was a disturbance between his family and the family of the appellant relating to practising of witchcraft and that he (P.W.4) lodged the report at Therubali outpost in that respect and also, he has indicated the said fact in the F.I.R., but the prosecution has not proved the report, which was lodged at the outpost nor any of the police officials of the outpost Page 19 of 23 [ 20 ] has been examined to give evidence that any such report was lodged, subsequent to which, as deposed to P.W.4 that the parties were called to the outpost and the matter was amicably settled. Therefore, we are of the view that the evidence relating to the disturbance between the families, which has been adduced by the prosecution as a motive to commit the murder, has not been satisfactorily established. However, it is the settled law that the motive loses all its importance in a case where direct evidence of eye witnesses is available and it is clear and reliable.
Whether the appellant is guilty for commission of murder or culpable homicide not amounting to murder?:
11. It appears from the evidence on record that the appellant, all of a sudden, came and dealt one blow with axe and then left the spot. The blow hit on the right shoulder and even after noticing the same, the appellant has not tried to take out the axe from the affected body part to give a second one. In the case of Kulwant Rai -
Vrs.- State of Punjab reported in A.I.R. 1982 S.C. 126, it has been observed as follows:
"3. When the matter was before the High Court, it was strenuously urged that in the circumstances of the case Part I of S. 300 would not be attracted because it cannot be said that the accused had the intention to commit the murder of the deceased. In fact, that is conceded. More often, a suggestion is made that the case would be covered by Part 3 of Page 20 of 23 [ 21 ] S. 300 Penal Code in that not only the accused intended to inflict that particular injury but the injury intended to be inflicted was by objective medical test found to be sufficient in the ordinary course of nature to cause death. The question is in the circumstances in which the offence came to be committed, could it ever be said that the accused intended to inflict that injury which proved to be fatal. To repeat, there was an altercation. There was no premeditation. It was something like hit and run. In such a case Part 3 of S.300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall under S. 304 Part II Penal Code."
[Emphasis supplied] In the case of Manibhai Vithalbhai Machhi -Vrs.- State of Gujarat reported in (1989) Supreme Court Cases (Criminal) 64, the Hon'ble Supreme Court held as follows:
"2....Having considered the facts and circumstances of the case, we are of the view that the offence would fall under Section 304 Part II, IPC and not under Section 302 of the IPC. Admittedly, the appellant had no motive to kill the victim. The appellant came running to the scene of the offence Page 21 of 23 [ 22 ] on hearing shouts and therefore, there was no question of his having entertained any intention to commit the murder of the victim. It was not a premeditated attack. Only one blow was given. It is not unreasonable to take the view that it happened to land on the victim's head. Taking into consideration all the relevant circumstances, the appeal deserves to be allowed partly to the extent that the conviction shall stand converted from one under Section 302 IPC to one under Section 304, Part II IPC. We order accordingly. Consequently, we reduce the sentence from one of imprisonment for life to one of R.I. for five years."
In view of the facts and circumstances of the case, the manner in which assault was made, the part of the body where the assault was made, the fact that no attempt has been made by the appellant to repeat the blow to the deceased even after the blow hit on the right shoulder and taking into the account the ratio laid down in the aforesaid two decisions, we are of the view that it is a case of 'hit and run' type and therefore, the learned trial Court was not justified in convicting the appellant under section 302 of the I.P.C. We are of the view that overt act committed by the appellant in the factual scenario would come within the purview of section 304 Part-II of the I.P.C.
It appears from the case record that the appellant surrendered before the Court on 18.06.2003 and he was never Page 22 of 23 [ 23 ] released on bail during the trial. After preferring this appeal in the year 2005, he was granted bail vide order dated 29.01.2010 and therefore, he has remained in custody for more than 6 years and 7 months. Since the occurrence has taken place in the year 2003 and more than two decades have passed, while convicting him under section 304 Part-II of the I.P.C., we sentence the appellant to the period already undergone.
Accordingly, the JCRLA is partly allowed.
Before parting with the case, we would like to put on record our appreciation to Ms. Susmita Pattnaik, learned counsel for the appellant for rendering her valuable assistance towards arriving at the decision above mentioned. This Court also appreciates Mr. Sonak Mishra, learned Additional Standing Counsel for ably and meticulously presenting the case on behalf of the State.
(S.K. Sahoo, J.) (S.K. Mishra, J.) Orissa High Court, Cuttack Dated, 10th January, 2024/Padma Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jan-2024 17:52:35 Page 23 of 23