Partly allowed

Purushottam Bariha v. State

Orissa HC2 Jul 2021CRLA/33/2005

Case brief

AI extract

What is this about?

The High Court allowed an appeal in part, reducing the appellant's conviction from murder (Section 302 IPC) to culpable homicide not amounting to murder (Section 304 Part I IPC) due to Exception 4, involving sudden fight and heat of passion. The sentence was reduced to imprisonment for ten years.

What did the court decide?

Conviction under Section 302 IPC set aside; convicted under Section 304 Part I IPC and sentenced to 10 years R.I.; previous detention set off.

Purushottam Bariha Vs State — Murder and Culpable Homicide | Orissa HC (2021)

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HIGH COURT OF ORISSA: CUTTACK.

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CRLA No.33 of 2005

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From the judgment of conviction and order of sentence dated 07.01.2005 passed by Sri A.K. Patnaik, Additional District and Sessions Judge, Jharsuguda in S.T. Case No.289/10 of 2003/ C.T. 292 of 2003.

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--------Purushottam Bariha @ Nanku …… Appellant. - VersusState of Orissa …… Respondent. For Appellant : Mr. Bhabani Shankar Dasparida. Mr. D.P. Dhal, M.K. Das, K. Dash and S.K. Parida. For Respondent : Sk. Zafrulla, Additional Standing Counsel. ---------

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C O R A M :

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SHRI JUSTICE S. K. MISHRA AND MISS JUSTICE SAVITRI RATHO

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Date of Hearing:-29.06.2021 and Date of Judgment- 02.07.2021

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S. K. MISHRA, J. This is a case of dual homicide.

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02 . In this CRLA, the convict/ appellant assails his conviction and sentence to undergo imprisonment for life and to pay a fine of Rs.3,000/- in

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default to undergo R.I. for one month under Section 302 of the Indian Penal

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Code, 1860 (hereinafter referred to as “the Penal Code” for brevity) recorded by the learned Additional District and Sessions Judge,

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Jharsuguda in S.T. Case No.289/10 of 2003/ C.T. 292 of 2003, as per the judgment of conviction and order of sentence dated 07.01.2005.

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03 . Bereft of unnecessary details, the case of the prosecution is that in the evening of 01.03.2003 the deceased persons, accused and one Ganesh were coming in a tractor bearing No.OR-15B-8904 with trolley bearing No.OR15B-8906 loaded with sand. The two deceased picked up a quarrel with the accused when the accused disapproved the quality of the sand and the accused suddenly being enraged, slapped the deceased Bhalu and then pushed him from the trolley of the tractor, as a result of which, Bhalu after being struck on the body of the tractor fell down. The driver of the tractor Murali Naik immediately stopped the tractor. All of them ran towards Bhalu and found him gasping. Seeing this, other deceased Thubi abused the accused as to why he pushed his brother; but the accused drew out an iron jack rod from the tractor and dealt two blows on the head of Thubi, as a result of which, he fell down and died. Bhalu, who was gasping, also died. Thereafter, the accused fled away towards Keldamal jungle with the iron rod. The informant, the driver of the tractor with Ganesh then loaded the

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dead body of the two deceased on the trolley and came towards the house of the tractor owner to give information. While coming, the tractor driver seeing a scooter coming from the front, went to a side; but capsized on the right side of the road over a dry nala and the dead body of two deceased were buried below the sand of the trolley. Later, the villagers of Sialrama came and pulled out the two dead bodies from the sand. The report was lodged by Murali Naik (driver of the tractor) which was received by the O.I.C., Laikera Police Station at the spot and it was treated as F.I.R.

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The O.I.C., Laikera Police Station, on the point of jurisdiction,

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sent the F.I.R. to Kolabira Police Station and the O.I.C., Kolabira Police Station again registered the same as Kolabira P.S. Case No.8 dated 02.03.2003 and took up investigation. In course of investigation of the case; he examined the witnesses; held inquest over the dead bodies, sent them for postmortem examination; visited the spot; examined more witnesses; seized the wearing apparels of the deceased persons; searched for the accused in Keldamal jungle and apprehended him; on the information of the accused, recovered the iron jack rod from the jungle and seized the same; sent the material exhibit for chemical examination and on completion of investigation, submitted charge-sheet against the accused.

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04 . The plea of the accused is one of denial.

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05 . In order to prove its case, the prosecution examined 8 witnesses

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so also relied upon the documents marked as Exts.1 to 18 and material objects marked as M.Os.I to III. No evidence has been led by the defence.

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P.Ws.1-Ganesh and 2-Murali Naik are the two eye witnesses to the occurrence. P.Ws.3- Khatu Kalo is the post occurrence witness. P.W.5is the Grama Rakhi. P.W.4- Dr. Omprakash Patel was the doctor who conducted post-mortem over the dead bodies of deceased Bhalu Marei and Thubi Marei. P.W.6-Dr. Dolamani Patel was the doctor who examined the nail clipping of the accused and the weapon of offence i.e. iron jack rod. P.W.7-Sayad Mujibur Raheman, the then O.I.C. of Laikera Police Station who sent the report of the informant to the Kolabira Police Station on the ground of jurisdiction and P.W.8-Kashinath Nayak was the O.I.C., Kolabira Police Station who conducted investigation in this case and filed chargesheet against the accused.

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06 . On an appraisal of evidence on record, the trial court held the prosecution to have proved the charge against the accused on the basis of evidence of P.W.4 and the post-mortem reports Exts.6 and 7.

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07 . On examination of evidence of P.W.4-Dr. Omprakash Patel, it is revealed that he conducted post-mortem on the dead body of deceased

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Bhalu Marei and Thubi Marei. On examination, he found the following

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external injuries on the dead body of deceased Bhalu Marei;

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(i) Abrasion on the right cheek of seize 3” x 3”;

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(ii) Swelling in the right parietal bone of size 2’ x 2”.

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(iii) Abrasion on the right chest of size 3” x 2^mm .

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(iv) Abrasion on the right side of neck of size 1” x 3^mm .

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(v) Abrasion in the right knee of size 1” x 1”.

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(vi) Abrasion on the left leg of size 3” x 2”.

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He also found the following internal injuries:

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(i) Fracture of right maxilla; and

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(ii) Injury to right middle meningeal artery which was ruptured.

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He also found about 250 ML of rice fermented liquor from the stomach of deceased Bhalu Marei. Rigor mortis was present all over the body at the time of post-mortem. He opined that the death was due to shock as a result of injuries to face and head. The injuries to face and head were sufficient to cause death in ordinary course.

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P.W.4- Dr. Omprakash Patel also conducted post-mortem over

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the dead body of deceased Thubi Marei and found the following external and internal injuries, those are:

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External Injuries-

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(i) Abrasion on the right cheek of size 4” x 2”.

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(ii) Abrasion on the right forearm of size 1” x ½”. (iii) Abrasion on the left shoulder joint of size ½” x

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½”.

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(iv) Bruise over the right peterion (on the right size of the head) of size 2” x 2”.

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Internal Injuries-

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(i) Fracture of right angler of mandible.

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(ii) Fracture of right temporal bone.

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(iii) Injury to right middle meningeal artery and blood clot around it.

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He also found about 50 ml. of fermented rice in the stomach of the deceased.

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He opined that cause of death was due to shock as a result of sudden injury to brain. The internal injuries are sufficient to cause death in ordinary course. The injuries are possible by assault with an iron jack rod. Thus, from the evidence of the doctor P.W.4, it is clear that death of both the deceased was homicidal in nature.

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08 . Once it is held that deaths of the deceased were homicidal in

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nature, it is the duty of the Court to assess the evidence to find out whether the complicity of the accused has been brought home beyond all reasonable

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doubt and whether he has requisite mens rea to commit the offence of murder.

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09 . There are two eye-witnesses to the occurrence i.e. P.Ws.1Ganesh Bhoi and 2- Murali Naik. P.W.1 stated in his evidence that the occurrence took place in the month of March, 2003. It was 7.00 or 7.30 P.M. He, both the deceased persons, the informant P.W.2 and the appellant/ accused went in the tractor, driven by P.W.2, to Kunapali “Jora” to bring sand. They had loaded sand and were returning to their village. On the way, the accused-Nanku told near Kelda village that the sand was unfit. Thereafter, Nanku and Bhalu picked up quarrel on the same issue. Thereafter, Nanku pushed Bhalu from the moving tractor as a result of which Bhalu fell down. P.W.2 stopped the tractor. They got down from the tractor and found that Bhalu sustained head injury. Thubi being the brother of Bhgalu, got enraged and threatened Nanku saying “MAAGIHA TATE NAI CHHADEN, MO BHAIKE THELIDELU”. Thereafter, Nanku brought out a jack road from the trolley and dealt two blows on the head of Thubi. Thubi died due to those two blows on his head. Bhalu also died at the spot after falling from the tractor.

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P.W.2 (Murali Naik) is the informant in this case who stated in

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his examination in court that he was driving the tractor carrying sand loaded

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by the labourers i.e. P.W.1-Ganesh Bhoi, both the deceased, namely, Bhalu

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and Thubi and the accused-Nanku from Khunapali Jora. Ganesh was sitting beside him, whereas Thubi, Bhalu and Nanku were sitting on the sand loaded. On the way at 7.00 P.M., accused- Nanku told that the sand were unfit, being coarse, for which there was altercation between the accused and Bhalu. The accused dealt two or three slaps to Bhalu and pushed him from the moving tractor. Bhalu fell down from the tractor and sustained injuries in his hand and below his nose. This witness further stated that he stopped the tractor and all of them went to Bhalu, where he was lying, and found that Bhalu was struggling for life. Thubi got enraged and threatened Nanku saying “MAAGIHA NANAKU MARIDELU MUIN TATE NAIN CHHADEN”. He also stated that Thubi is the brother of Bhalu. Thereafter, Nanku brought out a jack rod from the trolley and dealt two blows on the head of Thubi. Thubi died due to those two blows on his head. Bhalu also died at the spot falling from the tractor. Both the witnesses i.e. P.Ws.1 and 2 unequivocally corroborated each other.

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Thus, it is clear that the occurrence took place out of a quarrel between the appellant/accused and both the deceased persons without any premeditation. We take note of the reported judgment passed in the case of Rambir –vrs.- State NCT Delh i: AIR 2019 SC 2264 wherein the Hon’ble

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Supreme Court having examined the exception 4 to Section 300 of the Penal

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Code has come to the conclusion that following four ingredients are required to attract the provisions of exception 4 to Section 300 of the I.P.C. Those are:

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(i) There must be a sudden fight;

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(ii) There was no premeditation;

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(iii) The act was committed in a heat of passion; and

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(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.

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While rendering the judgment in the case of Rambir (supra), the Hon’ble

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Supreme Court has taken into consideration its earlier reported case i.e. the case of Surinder Kumar –vrs.- Union Territory, Chandigarh : reported in (1989) 2 SCC 217.

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10 . From the evidence in this case, we come to the conclusion that

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there was a sudden fight between the appellant/accused and one of the deceased because of the fact that the appellant/accused questioned the quality of the sand. He assaulted Thubi by picking up a jack rod when Thubi threatened him for assaulting his brother Bhalu. There was no premeditation on the part of the appellant/accused and the acts were committed in a heat of passion. Furthermore, the appellant had not taken any undue advantage or acted in a cruel or unusual manner.

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11 . Applying the aforesaid principles to the case in hand, we are of

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the opinion that in this case offence under Section 304, Part-I of the I.P.C. has been committed by the appellant.

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12 . Therefore, we allow the appeal in part. Accordingly, the conviction and sentence to undergo imprisonment for life and to pay a fine of Rs.3,000/- in default to undergo R.I. for one month under Section 302 of the Penal Code recorded by the learned Additional District and Sessions Judge, Jharsuguda in S.T. Case No.289/10 of 2003/ C.T. 292 of 2003, as per the judgment of conviction and order of sentence dated 07.01.2005 are hereby set aside. Instead, the appellant is convicted for the offence under Section 304, Part-I of the Penal Code and sentenced to undergo R.I. for 10 years. The period of detention already undergone by the appellant during investigation, the trial as an U.T.P. and during the pendency of the appeal be set off under Section 428 of the Code.

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13 . Accordingly, this CRLA is allowed in part.

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14 . The T.C.Rs. be sent back to the court below forthwith.

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15 . As the restrictions due to resurgence of Covid-19 are

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continuing, learned counsel for the parties may utilize a printout of the order available in the High Court’s website, at par with certified copy, subject to attestation by concerned Advocate along with seal, in the manner prescribed

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vide Court’s Notice No.4587 dated 25^th March, 2020 as modified by Court’s Notice No.4798 dated 15^th April, 2021.

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….…………………

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(S. K. Mishra) Judge

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Savitri Ratho, J. I agree.

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….….……………. (Savitri Ratho) Judge

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Orissa High Court, Cuttack, Dated the 2^nd July, 2021/B. Jhankar

Purushottam Bariha v. State

Case brief

What is this about?

What did the court decide?

Purushottam Bariha v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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