Orissa High Court
Jasobanta Sahu vs State Of Orissa on 17 July, 2014
Author: Biswajit Mohanty
Bench: Pradip Mohanty, Biswajit Mohanty
ORISSA HIGH COURT: CUTTACK
JAIL CRIMINAL APPEAL NO.213 OF 2000
Arising out of Judgment dated 26.8.2000 passed by the Sessions Judge,
Dhenkanal in Sessions Trial No.2-A of 1989.
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Jasobanta Sahu ...... Appellant
-versus-
State of Orissa ...... Respondent
For appellants : Mrs. Usharani Padhi
For respondent : Mr. B.P. Pradhan
(Addl. Government Advocate)
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Date of Judgment: 17.07.2014
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P R E S E N T:
THE HONOURABLE THE ACTING CHIEF JUSTICE SHRI JUSTICE PRADIP MOHANTY
AND
THE HONOURABLE SHRI JUSTICE BISWAJIT MOHANTY
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Biswajit Mohanty, J. The present Jail Criminal Appeal has a chequred history.
Sessions Trial No.2-A of 1989 from out of which the present Jail
Criminal Appeal arises was initially disposed of vide judgment dated
24.8.1991by the learned Sessions Judge, Dhenkanal, who while acquitting the appellant of the charge under Section 302, IPC, convicted the appellant under Section 304-I, IPC and sentenced him to undergo R.I. for three years.
2. According to Mrs. Padhi, learned counsel for the appellant the present appellant never preferred any appeal against the above noted judgment and sentence and rather underwent the sentence as 2 directed. However, the informant-Hemanta Kumar Sahu (P.W.4) preferred Criminal Revision No.365 of 1991 before this Court. The said revision was disposed of on 14.1.2000 setting aside the judgment and order dated 24.8.1991 passed by the learned Sessions Judge, Dhenkanal so far as it related to acquittal of the appellant of the charge under Section 302, IPC and the matter was remitted back to the learned Sessions Judge, Dhenkanal for consideration on the point, if the offence committed by the appellant came within the purview of Section 302, IPC. This Court further directed the learned Sessions Judge to hear the prosecution and the appellant and dispose of the matter according to law by the end of April, 2000 without being influenced by any observation made by this Court in its judgment dated 14.1.2000. Accordingly, the matter was heard and impugned judgment dated 26.8.2000 was pronounced by the learned Sessions Judge, Dhenkanal holding the appellant guilty under Section 302, IPC and sentencing him to undergo imprisonment for life. The present appeal is directed against the above judgment and sentence passed by the learned Sessions Judge, Dhenkanal, Angul.
3. The prosecution story in brief is that the appellant and deceased were having strained relationship on account of property dispute. Laxminarayan Sahu (deceased), one Brajabandhu Sahu and Bhagaban Sahu (P.W.14) were brothers. The appellant is the son of Brajabandhu Sahu. There was a partition of family properties between 3 the three brothers and their mother in which their mother was allotted Ac.1.80 decimals of land for her maintenance. She was staying most of the times either with his son (P.W.14) or with the deceased. After her death about four years prior to the date of occurrence, Brajabandhu Sahu, father of the appellant, wanted to divide the landed property belonging to his mother, which was objected to by the other brothers. Dispute thus arose between Brajabandhu Sahu and the appellant on one side and other two brothers on the other side. This led to litigations between the parties. On 9.10.1988, Laxminarayan Sahu (deceased) went to his land to plough, the appellant reached there at about 12.30 P.M. and stabbed Laxminarayan Sahu repeatedly by using a knife, as a result of which Laxminarayan Sahu died at the spot. Hemanta Kumar Sahu, son of P.W.14 lodged the F.I.R. (Ext.1) on the basis of which investigation was taken up. During course of investigation, the I.O. visited the spot, held inquest over the dead body of the deceased, examined the witnesses, seized the wearing apparels of the appellant as well as the deceased. The I.O. (P.W.22) also arrested the appellant on 13.10.1988 and thereafter, the appellant led to discovery of weapon of offence, i.e., knife (M.O.I). He also made query to the doctor and sent the incriminating articles for chemical examination. On completion of investigation, the I.O. submitted charge sheet against the appellant.
4. The plea of the appellant was of complete denial. 4
5. The prosecution in order to bring home charge, examined as many as 22 witnesses including two doctors and one I.O. The prosecution also exhibited 21 documents. It also proved seven material objects including knife (M.O.I). Three documents were admitted into evidence for defence.
6. P.Ws.1 and 2 are the eye-witnesses to the occurrence. P.W.3 is the witness, who saw the right hand of the appellant was stained with blood. P.W.4 is the informant, who saw various injuries on the neck, chest, shoulder and back of the deceased. He also stated about the previous enmity between the appellant and deceased regarding landed property. P.Ws.5 and 20 are the witnesses to leading to discovery of M.O.I. P.W.6 is a co-villager before whom the appellant confessed about commission of crime. P.Ws.7 and 8 are the seizure witnesses. P.W.9 is a seizure witness, who turned hostile. P.Ws.10,12 and 18 are the other witnesses before whom the appellant had confessed his crime but who later on turned hostile. P.W.11 is a formal witness who was commanded to take the dead body of the deceased to the Sub- Divisional Hospital, Angul for Post Mortem Examination. P.W.13 is the doctor, who conducted the Post Mortem Examination. P.W.14 is the father of P.W.4, who gave out detailed of previous litigation between the parties and the threat given out by the appellant. P.Ws.15 and 16 are the eye-witnesses, who turned hostile. P.W.17 is the Ward Member of the village. P.W.19 is another witness to leading to discovery who 5 later on turned hostile. P.W.21 is the doctor, who examined the appellant. P.W.22 is the Investigating Officer.
7. In the examination under Section 313, Cr.P.C., the appellant admitted that there was a dispute regarding land between his father and his other two brothers, namely, P.W.14 and the deceased. With regard to the question on his sustaining some injuries for which he was also sent for medical examination, the appellant answered that he could not say anything. Further he denied that he stabbed the deceased on account of land dispute. He took the specific stand that on account of land dispute a false case has been foisted to harass him. It appears that the appellant denied most of the questions put to him during the examination under Section 313, Cr.P.C. From the side of the defence no body was examined. But three documents were admitted into the evidence for defence. As indicated earlier vide impugned judgment dated 26.8.2000 the appellant was found guilty for commission of offence punishable under Section 302, IPC and sentenced to undergo imprisonment for life.
8. Mrs. Padhi, learned counsel for the appellant submitted that the learned court below had gone wrong in recording a finding of guilt under Section 302, IPC as the case was squarely covered under Exception-2 to Section 300, IPC and accordingly, she pleaded that the present case could come only under Section 304 Part-I, IPC not under Section 302, IPC.
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9. Mr. B.P. Pradhan, learned Additional Government Advocate on the other hand defended the judgment of the court below with vehemence and contended that the present case is not covered under Exception-2 to Section 300, IPC and a scanning of evidence, would clearly show that the same comes under Section 302, IPC. In such background, Mr. Pradhan submitted that the learned court below rightly convicted the appellant under Section 302, IPC and the same warranted no interference by this Court.
10 In order to appreciate the contentions of both sides we have to scan the evidence.
P.W.1 is a co-villager. In his examination-in-chief he has stated that while he was crossing Surata nala hearing the sound "Marigali Marigali Rakhyakar", he went to Gobardhipa and saw the appellant assaulting the deceased by a knife (M.O.I). The appellant was assaulting the deceased on his hand, back of the shoulder on the left side. Thereafter, P.W.1 narrated the incident to some of the villagers. In the cross-examination, he stated that he had not heard any talk between the appellant and the deceased. He came to the spot and saw that the deceased was trying to get up and was falling again and again. He stayed at the place of occurrence for about 2 to 3 minutes. He had seen blood stain marks in the hands of the appellant at the time of occurrence. The knife (M.O.I) which was used by the appellant was 7 to 8 inches long. He further stated that there were some 7 litigation between the appellant and deceased. He denied the suggestion that he had not seen the occurrence and deposed falsely being instigated by the sons of the deceased.
P.W.2 is another co-villager, who in his examination-in-chief has stated that hearing the sound "Jasobanta Mote Maripakauchhi Kie Kounthi Achha Mote Rakhya Kara", he came to the ridge of Nala and from a distance of 20 to 25 feet, he found the deceased was lying on the ground and the appellant was sitting on him and stabbing with a knife on his chest. Seeing this, out of fear he went away from the spot through another route and came to his village. In the cross- examination, he stated that he had the knowledge that the appellant and deceased were in litigating terms prior to the date of occurrence. He further stated that he had not heard any talk between the appellant and the deceased at the time of occurrence. He saw the appellant giving two stab blows to the deceased. He denied the suggestion that he had not seen the occurrence and deposed falsely being instigated by the sons of the deceased.
P.W.3 is a co-villager, who in his examination-in-chief has stated that he saw the right hand of the appellant was stained with blood. When he asked about the same to the appellant, the appellant did not give any reply. In the cross-examination, P.W.3 stated that the appellant passed by his left side and he saw blood marks on his right hand right from his shoulder upto the wrist.
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P.W.4 is the cousin of the appellant and the informant. In his examination-in-chief he stated that he saw injuries on the neck, chest shoulder and back of the deceased, caused by the knife. He also stated that there was enmity between the appellant and the deceased over the landed properties. Due to absence of the deceased in the village, the appellant used to cause damage to the ridge in between their lands. So notices were served on the appellant and his parents on 6.10.1988. Further he submits that there was no good relationship between the deceased and the father of the appellant. Due to the land dispute, the appellant threatened to kill the deceased. In the cross- examination, P.W.4 stated that on receiving the notice in 107 case, the appellant spread a rumor in the village that he would kill the deceased thereafter.
P.Ws.5 and 20 are the witnesses to leading to discovery of knife M.O. I (Knife). Both identified the knife (M.O.I), In the cross- examination, both the witnesses have stood their ground.
P.W.6 is a co-villager and a witness before whom the appellant confessed his crime. In his examination-in-chief, P.W.6 has stated that when the appellant confessed his crime before him, he saw a knife in the right hand of the appellant and his wearing apparels were stained with blood. In the cross-examination, he stated that the appellant stopped for a minute, reported the fact and went away. 9
P.Ws7 and 8 are formal witnesses, who proved the seizure lists marked as Exts.4,6 and 7.
P.Ws.9 and 10 are declared hostile.
P.W.11 is a Head Constable who was commanded to take the dead body of the deceased to the Sub-Divisional Hospital, Angul for post mortem examination. Nothing adverse has been elicited in his cross-examination.
P.W.13 is the doctor, who conducted post mortem examination. In his examination-in-chief he has stated that on 10.10.1988 he was Surgery Specialist in the Sub-Divisional Hospital, Angul. On that day on police requisition he conducted post mortem examination on the dead body of the deceased being identified by P.W.11. During course of autopsy he found the following injuries;
"External Injuries;
1. One incised wound 3 cm x 1.5 cm x 5 cm deep subcutaneously over the front of chest below the right nipple.
2. Incised wound 2.5 cm x 1 cm cm x 3 cm deep over the left supra clavicular fossa.
3. Incised wound 3 cm x 1.5 cm over the left infraclavicular region penetrating into the left thoracic cavity.
4. Incised wound 2 cm x 0.5 cm over the axillary region penetrating ito the left thoracic cavity,
5. Incised wound 2 cm x 1 cm below the left infrascapular region outing through the left 7th rib and penetrating into the left thoracic cavity,
6. Incised wound 3 cm x 1 cm x 6 cm deep subcutaneously over the left deltoid region,
7. Incised wound 1 cm x 0.5 cm x 0.5 cm over the ventral aspect of the pulp of left middle finger,
8. Abrasion 4 cm x 3 cm over the right calf region, 10
9. Abrasion 4 cm. x 4 cm over the left glutial region and abrasion 4 cm x 3 cm over the right glutial region,
10.Abrasions 5 cm x 3 cm, 4 cm x 4 cm x 3 cm over the back of chest.
Internal Injuries;
1. There is clutted blood inside the left thoracic cavity,
2. Left lung shows 3 incised wounds corresponding top the positions of external injury mentioned at serial nos.3,4 and 5 above,
3. Heart is intact and empty of blood."
P.W.13 opined that all the above injuries were ante mortem in nature and possibly caused by means of a sharp cutting weapon. Death was caused due to haemorrhage and shock following the above mentioned injuries. These injuries were sufficient in ordinary course of nature to cause the death of a person immediately. He further stated that he examined the knife (M.O.I) on police requisition and opined that the external injuries mentioned in Sl. Nos. 1 to 7 and the internal injuries mentioned in the post mortem examination report were possible by this weapon. The injuries were sufficient to cause death of the deceased. He proved the post mortem examination report under Ext.12. In the cross-examination, P.W.13 stated that if a man stabbed with a knife (M.O.I), it was more likely to cause incised wound than punctured wound. Injury nos.8 to 10 on the deceased were possible by coming in contact with hard and rough substance or by falling during a scuffle. He further stated that injury nos.8 to 10 by themselves could not cause death of a man. Injury nos.3 to 5 individually could cause 11 death of a man. Thus nothing adverse has been elicited to demolish the evidence of P.W.13.
P.W.14 is the brother of the deceased and father of P.W.4. In his examination-in-chief he has stated that when the father of the appellant wanted to divide the land allotted to the mother, they objected to the same as the usufructs of the land was to be adjusted towards repayment of the loan incurred by all to meet the Sudhikriya ceremony of the mother. In the year, prior to the death of the deceased, the appellant demanded to effect partition of mother's land and later he demanded a particular portion of the mother's land to the deceased. For that reason the deceased went to Jarpada Police Station to lodge information regarding the dispute over the land. Thereafter, a proceeding under Section 145, Cr.P.C. was initiated and an attachment order was given over it. After some time, the appellant destroyed the ridge in between the lands of the appellant and the deceased. As a response to this, the deceased lodged information again at Jarpada Police Station. The police visited the spot and started a case against the appellant and his father. Thus, the appellant was creating various troubles and the deceased was filing cases against him in the Courts. On Thursday just prior to the date of occurrence, the Court Peon had been to the village to serve notice on the appellant and his father. After receiving notice, the appellant came up from his house and was threatening to kill the deceased. In the next morning 12 when P.W.14 was sitting, the appellant passed by that way by showing a threatening mood by biting his teeth. On the date of occurrence, the deceased went towards his taila in the morning. Later he was intimated that his deceased brother had been murdered by the appellant. Accordingly, he visited the spot and found Laxminarayan Sahu lying dead. He saw several injuries on the body of his deceased brother. In the cross-examination, P.W.14 has stated that his mother was not in good terms with the father of the appellant and was also not taking any food in his house. The day when the appellant passed infront of P.W.14 by biting his teeth in an angry mood, the deceased was not present in the village. In the early morning of Sunday he told the wife of the deceased to ask him not to go to the land as the appellant was annoyed with him. He denied a suggestion that due to enmity with his brother, i.e., father of the appellant, at his instance, the witnesses have been procured to speak against the appellant and manufactured the case to see the conviction of the appellant.
P.Ws.15 and 16 are the so-called eye-witnesses, who later turned hostile.
P.W.17 is the Ward Member of the village and is a formal witness.
P.Ws.18 and 19 are also the witnesses, who turned hostile. P.W.21 is the doctor, who examined the appellant. Though he found seven injuries on the person of the appellant, however, in 13 examination-in-chief he clearly stated that all the injuries were simple in nature and could be caused by a knife. In the cross-examination, he stated that incised injuries 1,2 and 3 can be caused if one stabbed with a knife.
P.W.22 is the Investigating Officer, who in his examination-in- chief has stated that on 9.10.1988 he was the Sub-Inspector of Police at Jarapada Police Station. On that day he received an oral report from P.W.4 and registered the case and took up investigation. He proved the F.I.R. under Ext.1, Commanding Certificate, dead body challan, seizure lists and seven Material Objects. He also seized the wearing apparels of the appellant as well as the deceased. He prepared the spot map under Ext.21. He seized the blood stains in presence of P.W.9 and prepared the seizure list. He also examined P.W.10 on 9.10.1988 who stated before him that the appellant told her that he had already murdered his uncle by a knife. He further stated about examination of two eye-witnesses, P.Ws.15 and 16 who later on turned hostile. He also stated about the examination of P.Ws.18 and 19 who later on turned hostile. He stated about examination of P.W.6 before whom the appellant had confessed his crime. He also stated that the appellant made statements in presence of P.Ws.5 and 20 and led to discovery of M.O.I. During his cross-examination, P.W.22 pointed out some minor contradictions in the evidence of P.Ws.1,2 and 14. He denied a suggestion that there was no eye-witnesses to the occurrence 14 and that his investigation was perfunctory. In the re-examination, he stated about examining P.W.12, who later on turned hostile.
11. In such background, let us now examine the contentions of Mrs. Padhi, learned counsel for the appellant. Since Mrs. Padhi in her submission made it clear that the appellant did not prefer any appeal against the earlier judgment dated 24.8.1991 passed by the learned Sessions Judge, Dhenkanal in S.T. No.2-A of 1989 and since the appellant underwent the sentence as directed, one thing is clear that there is no dispute that the appellant had committed culpable homicide. However, according to Mrs. Padhi, this culpable homicide could not be described as murder as the appellant while exercising his right of private defence of person and property, in good faith, caused death of the deceased without pre-meditation. In this context, she put emphasis on the simple injuries suffered by the appellant. Therefore, she submitted that the learned court below had gone wrong in convicting the appellant under Section 302, IPC and her client could only be convicted under Section 304 Part-I as was done earlier.
12. We are unable to accept the contentions of Mrs. Padhi, learned counsel for the appellant for the following reasons;
From the evidence of P.Ws.1,2,4 and 14, it is clear that there existed land dispute between the parties. P.W.4 had made it clear in his examination-in-chief that due to this land dispute, the appellant was always threatening to kill the deceased. In cross-examination, 15 P.W.4 has stated that after receiving notice in 107 case, the appellant spread rumor in the village that he would kill the deceased. P.W.14 in his examination-in-chief has stated that on account of land dispute, the deceased has initiated a case against the appellant and after receiving notice, the appellant threatened to kill the deceased. All these establish motive of the appellant and thus the killing of the deceased was pre-planned. Under such facts and circumstances, it cannot be said that the deceased was killed without any pre- meditation. Further, the evidence of P.Ws.1 and 2 would show that the appellant used a knife (M.O.I) to assault the vital parts of body of the deceased. Both of them have stated that they have not heard any talk between the appellant and the deceased at that time. Their evidence is well corroborated by the evidence of P.W.13, who made it clear that the injuries suffered were sufficient in the ordinary course to cause death of a person immediately. He further stated that the deceased suffered as many as seven incised wounds out of which injuries 3,4 and 5 were sufficient individually to cause death of a man. The aforesaid injuries were found on the chest and each of the injuries penetrated into the left thoracic cavity. These injuries also correspond to the internal injury no.2, which shows 3 incised wounds in left lung. These injuries are on the chest and back side of the chest causing incised wounds on left lung. This clearly reflects that injury nos.3,4 and 5 were inflicted with sufficient force to penetrate lung. This makes 16 the intention of the appellant clear, i.e., to murder the injured. P.W.13 has made it clear that all the external injuries and internal injuries were possible by a knife (M.O.I). This makes it clear that the appellant had given repeated knife blows to the deceased on account of which the deceased was trying to get up and he was falling again and again as stated by P.W.1.
Now coming to the question of right of private defence, one can see that such a plea was neither taken during trial nor during examination of the appellant under Section 313, Cr.P.C. nor even at the time of argument leading to the first judgment dated 24.8.1991 by the learned Sessions Judge, Dhenkanal. This plea of self-defence was not even suggested to the eye-witnesses like P.Ws.1 and 2. The version of the eye-witnesses also rules out any scope for right of private defence in favour of the appellant. Further as has been indicated earlier in answer to question no.13 during his examination under Section 313, Cr.P.C., the appellant has denied that he stabbed the deceased on account of land dispute. Thus, there exists no material whatsoever to bring the present case under Exception-2 to Section 300, IPC. In fact there is no material to show that the appellant was present in his own land and the deceased as aggressor attacked the appellant causing such injuries, which warranted his killing by the appellant in exercise of right of private defence or his person/property. Further, as per version of P.W.6 soon after the occurrence, the 17 appellant admitted to have killed the deceased without taking any plea of right of private defence of person or property. Rather P.W.6 in the cross-examination, has made it clear that the appellant did not say for what reason he killed the deceased. All these rule out any question of killing while exercising right of private defence.
Further the injuries found on the body of the appellant as deposed by P.W.21 show that the appellant had received seven injures out of which three injuries were abrasions, one lacerated wound and rest three were incised wounds on second metacarpo phalangial joint, on the ventral surface of the left thumb and on the ventral surface of the left little finger over the middle phalanx. According to P.W.21 all the injuries are minor in nature. Assuming for a moment that the deceased was the aggressor and he inflicted these injuries, even this cannot justify right of defence to cause death of the deceased. However, we hasten to add here that there exists no evidence to show that the deceased was the author of these injuries on the person of the appellant. Interestingly, when these injuries were confronted to the appellant while he was being examined under Section 313, Cr.P.C. his answer was that he could not say about the same. This further makes it clear that the deceased cannot be said to be the author of the said injuries. Thus, for all these reasons, it can be safely said that the appellant has failed to prove existence of facts satisfying requirement of Exception-2 to Section 300, IPC in his favour.
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13. In such background, we unhesitatingly hold that the court below has made correct appreciation of evidence and rightly arrived at the conclusion by convicting the appellant under Section 302, IPC. Therefore, the Jail Criminal Appeal is without any merit and the same is dismissed. Since the appellant is on bail vide order dated 24.1.2000 passed by this Court, he is directed to surrender to custody for undergoing the remaining period of sentence as imposed against him by the court below.
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BISWAJIT MOHANTY, J.
Pradip Mohanty, A.C.J. I agree ..................................
PRADIP MOHANTY (ACTING CHIEF JUSTICE) High Court of Orissa, Cuttack Dated 17th day of July, 2014/amit