Partly allowed

Dinabandhu v. State

Orissa HC27 Mar 2023CRA/198/1996

Case brief

AI extract

What is this about?

High Court of Orissa allowed an appeal partly, modifying the conviction from culpable homicide with intent to cause death (Part I) to culpable homicide not amounting to murder (Part II). The Court also commuted the sentence to the period of custody already undergone due to the appellant's advanced age.

What did the court decide?

Conviction modified from Section 304 Part-I to Part-II IPC; sentence reduced to the period of custody already undergone.

Dinabandhu Vs State — Cheating and Forgery | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRA NO.198 OF 1996

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(From the judgment and order dated 15^th July, 1996 passed by learned District and Sessions Judge, Dhenkanal-Angul, Dhenkanal in S.T. No.142 of 1993)

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Dinabandhu Sahu
… Appellant
-versus-
State of Orissa … Respondent
Advocates appeared in the case through hybrid mode:
For Appellant : Mr.Yuvraj Parekh,
Advocate (Amicus Curiae)
-versus-
For Respondent : Mr.S.K.Mishra,
Addl. Standing Counsel

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--------------------------------------------------------------------------- CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT

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27.03.2023.

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Sashikanta Mishra,J . The Appellant questions the correctness of the

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judgment of conviction and sentence passed on 15^th

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CRA No.198 of 1996 Page 1 of 12

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July, 1996 by the learned Sessions Judge, DhenkanalAngul, Dhenkanal in S.T. Case No.142 of 1993 whereby, the Appellant being convicted for the offence under Section 304 Part-I of I.P.C. was sentenced to undergo Rigorous Imprisonment for ten years and to pay fine of Rs.1,000/-, in default, to undergo further

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R.I. for one year.

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2. Bereft of unnecessary details, the prosecution case is as follows;

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On 17^th March, 1993, the accused-Appellant along with his son were transporting firewood on their bullock cart in their village. At that time accidentally one of the wheels of the bullock cart came in contact

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with a stone in the land belonging to one Niranjan Sahu (deceased). As a result, the bullock cart capsized.

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The Appellant freed the bullocks and tried to uproot the stone by means of a crow bar. While he was doing so, the deceased came to the spot and asked as to why

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he was removing the stone. The accused became enraged at this and after abusing him in obscene

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CRA No.198 of 1996 Page 2 of 12

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language dealt two blows on his head causing bleeding injuries. Further, the deceased fell down on the ground losing consciousness. At that time when his elder brother (Khageswar Sahu) intervened and tried to rescue his brother, he too was assaulted. One Murali Naik arrived at the spot hearing the shouts of Khageswar and separated them. There was profuse bleeding from the head of the deceased because of the injury. Since he did not regain consciousness, he was shifted to Dera Hospital, but as his condition did not improve, Khageswar lodged written report before the Bikrampur P.S. on 17^th March, 1993. This led to registration of Bikrampur P.S. Case No.9(4)/1993 under Sections 341/307/323/34 of I.P.C. followed by investigation. In course of investigation, the deceased having succumbed to his injuries, the case turned to one under Section 302 of I.P.C. As such, charge was submitted under Sections 302/341/323/34 of I.P.C.

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3. The accused took the plea of denial and of false implication because of previous dispute.

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CRA No.198 of 1996 Page 3 of 12

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4. To prove its case, the prosecution examined 12 witnesses, out of whom P.W.2 is the informant and elder brother of the deceased, P.W.1 is the doctor who examined the deceased at the first instance and P.W.11 is the autopsy surgeon. All other witnesses are co-villagers including family members of the deceased. P.W.12 is the I.O. Besides, the prosecution also proved 20 documents and three material objects. The defence

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did not adduce any evidence, either oral or documentary.

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5. After appreciating the evidence on record, the Court below found clear evidence of assault by the accused on the deceased by means of a crowbar at the relevant time causing bleeding injuries, which ultimately caused his death. As such, the appellant was convicted and sentenced as already stated herein before.

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6. Head Mr. Yuvraj Parekh, learned Amicus Curiae and Mr. S.K.Mishra, learned Addl. Standing Counsel for the State.

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CRA No.198 of 1996 Page 4 of 12

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7. Mr. Parekh has assailed the impugned judgment by contending that the prosecution case cannot be believed because of non-examination of independent witnesses including Murali Naik, who was named in the F.I.R. He further contends that the informant being the elder brother of the deceased, his evidence could not have been relied upon by the Court below without seeking corroboration. Finally, Mr. Parekh would contend that even otherwise, the order of conviction under Part-I of Section 304 I.P.C. is entirely wrong having regard to the specific finding of the Court below that the accused had no intention to cause death of the deceased. According to Mr. Parekh, at best the conviction could be one under Part-II of Section 304 I.P.C. It is alternatively submitted that the offence took place more than 25 years ago. The accused was aged about 52 years at that time. Now he is aged about 82 years. Therefore, even if he is convicted under Section 304 Part-II I.P.C., a lenient sentence should be imposed.

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CRA No.198 of 1996 Page 5 of 12

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8. Mr. S.K. Mishra, learned Addl. Standing Counsel,

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on the other hand, submits that in view of the clear evidence of the informant (P.W.2) regarding the occurrence, no further corroboration is necessary. Moreover, the prosecution case is otherwise proved from the evidence of the two doctors as regards the injuries sustained by the deceased and that the same were responsible for causing death of the deceased. As regards the order of conviction under Section 304 PartI I.P.C., Mr. Mishra, fairly submits that in the absence

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of intention, the conviction should have been under Part-II of Section 304 of I.P.C. As to the sentence, Mr. Mishra submits that death of a human being having occurred because of assault by the accused, no leniency should be shown to him.

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9. This Court has gone through the evidence on

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record. It is seen that the informant was examined as P.W.2. He vividly described the occurrence as mentioned in the F.I.R. He specifically deposed that

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after the quarrel relating to removal of the stone by the

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CRA No.198 of 1996 Page 6 of 12

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accused from the land of the deceased, he dealt two blows with the crowbar on the head of the deceased causing bleeding juries. Nothing has been elicited from him in cross-examination to disbelieve such sworn testimony. Moreover, his evidence relating to the injuries sustained by the deceased is fully corroborated by the evidence of the Doctor (P.W.1), who had examined the deceased on police requisition on the same day. It is in his evidence that he had found the

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following three injuries on the person of the deceased;

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(i) Lacerated injury 6”X1” bone deep over the right parietal region.

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(ii) Lacerated injury 5”X1” bone deep over the occipital region. X-ray of scalp shows lenial fracture over right parietal region, extending from front parietal region to occipital parietal region.

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(iii) Depressed fracture over right parietal region.

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10. That apart, this Court finds that P.W.2 was also

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injured in the occurrence being assaulted by the accused. Such injuries have been proved by the Doctor

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CRA No.198 of 1996 Page 7 of 12

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(P.W.1), who examined him. There is also evidence of P.W.11, the autopsy surgeon, who opined that the head injuries were fatal in ordinary course of nature and that the brain injury is sufficient in ordinary course of nature to cause death. She further testified that the cause of death was due to coma resulting from the injuries found on the body of the deceased.

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11. It is well settled that corroboration is only a rule of prudence and not to be insisted upon in each and every case. In the present case, this Court finds the evidence of P.W.2, who is himself an injured victim, clear, consistent, credible, trustworthy and free from any doubts whatsoever. There is thus, no reason to discard his evidence. Moreover, being a close relation (elder brother) of the deceased, it would only be natural

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for him to name the actual culprit than to let him go scot free by falsely implicating someone else. Similarly, non-examination of Murali Naik the other eye witnesses pales into insignificance when the consistent and credible ocular evidence is supported

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CRA No.198 of 1996 Page 8 of 12

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by medical evidence available on record. Therefore, the contentions raised by Mr. Parekh are not acceptable.

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12. Coming to the other ground raised by Mr. Parekh that the conviction should not have been under Section 304 Part-I of I.P.C, this Court finds from the evidence that there is not a whisper of the act in question being committed by the accused with any premeditation. On the contrary, the evidence reveals that the occurrence had taken place in course of a sudden quarrel which in turn had arisen out of a trivial issue, namely removal of stone by the accused from the land of the deceased. In course of such altercation between the accused and the deceased, the former dealt two blows with the crowbar on the head of

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the deceased. Thus, by no stretch of imagination can it said that he had a definite intention of causing death of the deceased though it can be reasonably held that while using the crowbar as a weapon, he obviously had the knowledge that the same would either cause

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CRA No.198 of 1996 Page 9 of 12

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death or cause such bodily injuries as would result in death.

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13. A reading of the impugned judgment reveals that

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the trial Court has also arrived at similar findings and categorically held that such incident appears to have taken place on the spur of the moment and that intention of killing the deceased being absent, it is culpable homicide not amounting to murder which would fall under Part-I of Section 304 I.P.C.

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14. Section 304 of I.P.C. reads as follows;

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“304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”

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CRA No.198 of 1996 Page 10 of 12

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From the foregoing narration of the facts and evidence, it is more than evident that the case would not come under Part-I of Section 304 of I.P.C., rather

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Part-II would be applicable. This Court holds accordingly.

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15. As regards the sentence is concerned, it is seen that the accused was in custody all through during trial and was bailed out during the present appeal. As such, he has spent little more than three years in custody. Having regard to the fact that the occurrence took place more than 25 years ago and that the accused-Appellant being aged 52 years then, is now aged about 82 years, this Court is of the considered view that ends of justice would be best served if the sentence is confined to the period of custody already undergone by the accused.

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16. In the result, the appeal is partly allowed. The impugned judgment of conviction under Section 304 Part-I is modified to Part-II of Section 304 of I.P.C.

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CRA No.198 of 1996 Page 11 of 12

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Further, the sentence as imposed by the trial Court is modified to the period of detention already undergone.

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17. Before parting with the case, this Court deems it proper to place on record its appreciation for the able assistance rendered by Mr.Yuvraj Parekh, Amicus Curiae, in adjudication of the appeal. The professional fee of Mr.Yuvraj Parekh is fixed at Rs.10,000/- (Rupees

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ten thousand) only.
…………….…….………..
( Sashikanta Mishra)
Judge
Ashok Kumar Behera

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CRA No.198 of 1996 Page 12 of 12

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CRA No.198 of 1996 Page 13 of 12

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CRA No.198 of 1996 Page 14 of 12

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CRA No.198 of 1996 Page 15 of 12

Dinabandhu v. State

Case brief

What is this about?

What did the court decide?

Dinabandhu v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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