Orissa High Court
Subash Khosla vs State Of Odisha on 20 August, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.240 of 2001
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 12th October, 2001 passed by the
learned Sessions Judge, Koraput, Jeypore in Sessions Trial
No.354/1999.
Subash Khosla .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr.B. Mishra,
Advocate.
For Respondent - Mr.P.K. Mohanty,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
Date of Hearing : 29.07.2024 :: Date of Judgment: 20.08.2024 D.Dash, J. The Appellant, by filing this Appeal, has challenged the judgment of conviction and order of sentence dated 12th October, 2001 passed by the learned Sessions Judge, Koraput, Jeypore in Sessions Trial No.354 of 1999 arising out of G.R. Case No.334 of 1999 corresponding to Koraput G.R.P.S. Case No.4 of 1999 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Koraput.
The Appellant (accused) thereunder has been convicted for commission of offence under section 302/323 of the Indian Penal Page 1 of 7 CRLA No.240 of 2001 Code, 1860 (in short, 'IPC') and accordingly, he has been sentenced to undergo imprisonment for life for the offence under section 302 of the IPC without any separate sentence being imposed for the offence under section 323 of the IPC.
2. Prosecution case is that the Kamulu (deceased) was working as a Chowkidar in the Railway Department. On 20.05.1999, Komulu withdrew a sum of Rs.14,000/- from his Provident Fund Account. He then gave a sum of Rs.500/- to each of his daughters. It is stated that on that day around 5 p.m. when Kamulu and his wife (Informant-P.W.1) were sleeping, the accused came to their quarter and he demanded a sum of Rs.1,000/- more. Kamulu (deceased) and his wife (P.W.1) told that they had already given Rs.500/- to each of their daughters and they would not give any more. It is stated that the accused having heard the reply from the deceased left the quarter of the deceased in an angry mood and around 7 p.m. again the accused came there and raising shout started dealing fist blows and kicks upon the deceased and when the deceased fell on the ground, he gave a jump on his chest, which led to his death.
Thereafter, the wife of the deceased (Informant-P.W.1) orally lodged the report in Koraput G.R.P.S., which was reduced into writing. The Assistant Sub-Inspector of Police (A.S.I.) of Koraput G.R. Police Station (P.W.4) receiving the said report treated the same as FIR and upon registration of the case, took up investigation.
3. The Investigating Officer (I.O.-P.W.4) then examined the witnesses and visited the spot. He (P.W.4) held inquest over the Page 2 of 7 CRA No.240 of 2001 dead body of the deceased in presence of witnesses. The I.O. (P.W.4) then sent the dead body of the deceased to the District Headquarters Hospital, Koraput for Post Mortem Examination. The other I.O. (P.W.5), who took up further investigation seized one red-blue coloured shirt, one while full banian and a pair of full shoes from the possession of the accused as per the seizure list (Ext.1). He also seized the wearing apparels of the deceased. The accused was apprehended and then being taken to custody was forwarded to the court. On completion of investigation, the I.O (P.W.5) submitted the Final Form placing the accused to face the Trial for commission of offence under section 302/323 of the IPC.
4. Learned S.D.J.M., Koraput on receipt of the Final Form, took cognizance of the offence under section 302/323 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 in total has examined five (5) witnesses. Out of whom, as already stated, the Informant is the wife of the deceased and she had lodged the F.I.R. (Ext.4/2) is P.W.1. P.W.2 is the post-occurrence witness. The Doctor, who had conducted the post-mortem examination over the dead body of the deceased, is P.W.3 whereas the Investigating Officer have come to the witness box as P.W.4 and P.W.5.
6. Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.13. Out of those, the important are the FIR, Ext.4/2; spot map Page 3 of 7 CRA No.240 of 2001 Ext.9. The post mortem examination report and inquest report are Ext.2 and Ext.5 respectively. The seizure list is Ext.13 whereas the report of the R.F.S.L., Berhampur has been admitted in evidence and marked Ext.12. The seized pair of shoes has been produced during the trial and marked as Material Object (M.O.I).
7. The plea of defence is that of complete denial and false implication. No evidence has also been let in from the side of defence despite opportunity.
8. Learned counsel for the Appellant from the beginning instead of questioning the finding of the Trial Court that Kamulu had met his death on account of the assault being made by the accused by giving fist blows and kicks and also by the jump on the chest submitted that in the facts and circumstances as emanate from the evidence of prosecution witnesses including P.W.1, further taking into account the fact that there was no prior planning behind the incident and it had happened for a silly reason when the fact remains that the parties hail from rural background where their tamper usually run high and they behave unexpectedly for silly reasons and that respond aggressively, the Trial Court ought not to have convicted the accused liable for commission of offence under section 302 of the IPC and instead he ought to have been convicted for the offence under section 304-II of the IPC
9. Learned Counsel for the Respondent-State refuted the submission. According to him, in the facts and circumstances when the fist and kicks were given and then again the jump of the accused over the chest of the accused which has caused the death, Page 4 of 7 CRA No.240 of 2001 the Trial Court is right in convicting the accused for commission of 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.5) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.13.
11. In order to address the rival submission confined to the question of altercation of conviction and modification of sentence, it is felt apposite to first of all look at the evidence of P.W.1. She is none other than the wife of the deceased. It is stated by her that when the accused came and demanded Rs.1,000/- more and when they expressed their inability to accept their demand, out of anger, the accused assaulted the deceased by means of his wearing shoes and giving him kicks, jumped on his chest by wearing those shoes. She has stated that she as well as the deceased on the date of occurrence after paying money to the three daughters each a sum of Rs.5,00/- had taken wine and there was altercation between her and the deceased as she objected to the distribution of money to the daughters. Thus it is borne out from her evidence that this P.W.1 was not in favour of the daughters being paid by the deceased. It is further stated that the assault on the deceased started when he was sleeping and when she protested, she was also given three kicks. The incident is seen to have taken place for demand of a sum of Rs.1,000/- by the accused in addition to the sum of Rs.500/- paid to his wife being the daughter of the deceased. It was purely a family affair and what happened seems to have happened on the spur of the moment between the parties, Page 5 of 7 CRA No.240 of 2001 in either side losing their tamper and allowing ill-filling to surface. The evidence on record as spoken to by the prosecution witnesses, more importantly P.W.1, there does not appear to have pre- mediated plan or intention to either put an end to the life of the deceased and cause any injury with the intention of causing such bodily injuries, which within the knowledge of the accused was likely to cause his death even in ordinary course of nature, when it is stated by P.W.1 that they refused to accept the demand, she having remained silent is quiet acceptable.
12. Taking a cumulative view of all these above circumstances, this Court is of the view that the principal offence could be properly categorized as one punishable under section 304 Part-II of the IPC. We are thus of the considered opinion that for the role played and act done by the accused, he would be liable for conviction under section 304 Part-II of the IPC.
13. In that view of the matter, the conviction of the accused is altered to one under section 304 Part-II of the IPC. Since the accused persons are found to have remained in custody for about six years and eight months, at this distance of time and keeping in view all other relevant factors including the fact that no report as to any adverse conduct of the accused persons has come to be received; in the interest of justice, for the offences committed by the accused under section 302/323 of the IPC as held, we are of the considered view that the sentenced of imprisonment for the period already undergone would serve and meet the ends of justice.
Page 6 of 7 CRA No.240 of 200114. In the result the Appeal is allowed in part with the above alteration of conviction and modification of sentence to the extent as indicated.
(D. Dash), Judge.
V. Narasingh, J. I agree.
(V. Narasingh), Judge.
Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 22-Aug-2024 18:15:11 Page 7 of 7 CRA No.240 of 2001