Partly allowed

Nirakar Patra v. State

Orissa HC25 Jul 2019JCRLA/129/2004

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, setting aside convictions under Section 302 IPC for murder. Based on evidence of a quarrel and spur-of-the-moment assault, the court substituted the charge with Section 304 Part-I IPC and sentenced the appellant to 10 years rigorous imprisonment.

What did the court decide?

Conviction for murder under Section 302 IPC set aside; convicting appellant under Section 304 Part-I IPC with 10 years rigorous imprisonment; releasing appellant after credit for 14 years custody.

Nirakar Patra Vs State — Murder and Culpable Homicide | Orissa HC (2019)

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ORISSA HIGH COURT: CUTTACK

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JCRLA No. 129 OF 2004

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(From the judgment and order dtd. 17.08.2004 passed by Shri S. Pravakar Rao, Adhoc Addl. Sessions Judge (F.T.), Keonjhar in S.T. Case No.82/33 of 2003-2004.)

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Sambaria @ Nirakar Patra …… Appellant -VersusState of Orissa ...... Respondent For Appellant :Mr. Narayan Pihan. For Respondent : Mr. B.P. Pradhan (Addl. Govt. Advocate)

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P R E S E N T :-

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THE HONOURABLE MR. JUSTICE S.K. MISHRA AND THE HONOURABLE DR. JUSTICE A.K. MISHRA

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---------------------------------------------------------------------------- Date of hearing & Judgment – 25.07.2019 -----------------------------------------------------------------------------------

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S.K. Mishra, J. In this appeal, the sole convict Sambaria @ Nirakar Patra

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assails the judgment of conviction and order of sentence dated 17.08.2004 passed in S.T. Case No.82/33 of 2003-2004 by the Adhoc Addl. Sessions Judge (Fast Track), Keonjhar. He has been convicted under Section 302 of IPC and has been sentenced to undergo imprisonment for life.

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Case of the prosecution bereft of unnecessary details is

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that the deceased-Satyananda @ Dhena Patra, the nephew of the

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informant-P.W.1, Abhimanyu Patra accompanied the accused Sambaria and others on 26.11.2002 at about 10 A.M. while he was sitting with the couple of Juangas, they proceeded towards the paddy field but after that his nephew did not return to his house. On the next day, the informant found the dead body of the deceased in front of the paddy field of one Rama Patra at about 2 P.M. When he was informed about the fact, informant went to verify the fact and after verifying the dead body to be that of his nephew, he reported the matter to the police. Further the informant disclosed before the police that the wife of the deceased had told him that prior to the incident the deceased was last seen with accused Sambaria.

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2.(a) On submissions of the F.I.R., the O.I.C. of

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Harichandanpur P.S. registered P.S. Case No.68 dated 27.11.2002 and took up investigation. After investigation, he submitted chargesheet against the accused-appellant for the offence U/s. 302/201 of I.P.C.

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The defence took the plea of complete denial and false implication.

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The prosecution in order to prove its case has examined 14 witnesses in all. Out of these 14 witnesses, the only one witness i.e. P.W.2 is an eye-witness to the occurrence. P.W.8, Dr. Sanjay Ku. Pattnaik is the Medical Officer who has conducted the post-mortem

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examination of the deceased. P.W.14-Subhransu Sekhar Mishra is the Police Officer who has investigated into the case and submitted the charge-sheet before the court.

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In assailing the judgment of conviction, learned counsel for the appellant submits that from the facts of the case as stated by P.W.2, no offence under Section 302 of IPC is made out and even if the statement of the P.W.2 is taken as a gospel truth, at best the offence under Section 304 (Part-I) is to be made out. He urged to convert the conviction for the offence U/s.302 of IPC to 304 (Part-I) of IPC.

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Learned Addl. Govt. Advocate on the other hand, supported the findings recorded by the learned Addl. Sessions Judge and argued that the appeal should be dismissed and the findings recorded by the learned Addl. Sessions Judge should be confirmed.

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In order to appreciate the case in hand, it is appropriate to take note of the evidence of the Doctor-P.W.8 who has conducted the autopsy on the dead body of the deceased. P.W.8 has stated that on 28.11.2002, he conducted post-mortem examination on the dead body of the deceased-Satyananda Patra, S/o-Niladri Patra and found the following external injuries:-

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i. Abrasion over right shoulder joint anteriorly of size 2 cm. x 2 cm.

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ii. Laceration of size 2 cm. x 2 cm. x 1 cm. over fore-head on right side above right eye.

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iii. Laceration 3 cm. x 1 cm. x 1 cm. over right mastoid bone and right ear. Mastoid bone fractured.

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6.(a) He further stated that on dissection of injury no.(ii) and (iii), he found underlying muscle was lacerated and haematoma present. Extradural haematoma of size 3 cm. x 2 cm. was present below the injury no.(iii). All the injuries were ante-mortem in nature and the age of the injuries were 48 hours. Injury no.(ii) and (iii) were stated to be grievous in nature. He also opined that the death was found due to injury caused to the vital organ like brain. Time of the post-mortem examination was fixed about 48 hours after the death. Injuries found on the deceased was sufficient to cause death in the normal course of nature.

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6.(b) On the same day, the Doctor on the query of the O.I.C., Harichandanpur P.S. examined one stone being the weapon of offence and opined that injury on the deceased could be possible by the said weapon of offence. Ext.4 is the post-mortem report and Ext.4/2 is the written opinion given by the Doctor.

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This above evidence needs to be juxtaposed and appreciated with the evidence of P.W.2 to come to a definite conclusion regarding the submissions made by the learned counsel appearing for the parties in this case.

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P.W.2-Padmalochan Patra has stated that he knew

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Sambaria Patra and the deceased. The incident occurred 1 ½ years prior to his depositions in the court. On the relevant Tuesday, while he was cutting paddy crop at his field and after completing the work, he went under the shadow of a jack-fruit tree to take a little rest. Both accused and deceased came along the road accompanied by two other Juanga people. The witness further stated that the deceased invited him to a liquor party. Being invited so he accompanied them and went to a place near village water canal and

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then they took liquor together from one Kandiri Patra who was selling liquor at that place. After taking liquor they dispersed and thereafter the witness, accused and deceased proceeded towards their village in a row. The witness stated that he was ahead of accused and deceased who were coming together. In course of walking along the road he could hear the quarrel between the accused and the deceased. While they were halfway through he could no more hearing their voice. On turning back, he found the deceased gave two slaps to the accused and in retaliation the

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accused pushed the deceased to a side for which the deceased fell down on the ground.

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8.(a) The witness further stated that the accused picked up a stone lying on the road and dashed it to the head of the deceased. The deceased sustained injuries. Seeing this, the witness fled away from the spot and went towards the village. The accused then came to the village and informed that he has killed the deceased. Thereafter, they parted ways.

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8.(b) In the cross-examination, he denied the defence suggestions that he is not in talking terms with the accused and he has not accompanied with accused and deceased for liquor and that he was deposing falsehood.

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From the total conspectus of the material available on record i.e. the evidence of the Doctor who has conducted postmortem examination and the sole eye-witness, it is apparent that the occurrence took place in a spur of the moment, while both the accused and deceased were under the influence of liquor. There was quarrel between them and it was the deceased who gave two slap blows to the accused. The accused pushed the deceased on the ground and dashed a stone on his head. As a result of which, the

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deceased sustained fracture of the mastoid bone and also extradural haematoma was found which led to the death of the deceased.

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It is also borne out from the evidence of P.W.7 that on the next day at the spot, the wife of the deceased, the Grama RakshiP.W.7 and the accused were present which shows that the accusedappellant has no intention of committing murder of the deceased rather the occurrence took place in a spur of moment which led to the death of the deceased. However, since the appellant dashed the head of the deceased by means of stone and he being a grown-up man has knowledge that his action shall cause bodily injury which may resulting death of the deceased, hence, we are of the opinion that the offence U/s.304 (Part-I) of IPC is made out.

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Thus, on the basis of the aforesaid discussions, we come to the conclusion that the offence U/s. 302 of IPC is not made out rather offence U/s.304 (Part-I) is made out. Hence, the appeal is allowed in part. Conviction of the appellant for the offence U/s. 302 of IPC is hereby set aside. Instead, we convict the appellant for the offence U/s. 304 (Part-I) of IPC and sentencing him to undergo rigorous imprisonment for 10 (ten) years. We do not impose any fine on the appellant.

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It is brought to the notice of the court that he is already in custody of 14 years, if that is so, he be released from jail custody immediately after setting off substantive sentence against the period undergone, if he is not required to be detained in any other case.

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Accordingly, the JCRLA is partly allowed.

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LCRs. be returned immediately to the lower court.

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………................

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S.K. Mishra, J.

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Dr. A.K. Mishra, J. I agree.

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………………....…….

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Dr. A.K. Mishra, J.

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Dated the, 25^th July, 2019/RRJena

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Orissa High Court, Cuttack.

Nirakar Patra v. State

Case brief

What is this about?

What did the court decide?

Nirakar Patra v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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