High Court upheld conviction for culpable homicide not amounting to murder but reduced sentence to time already undergone, noting the delay in FIR was reasonable, witness testimony was trustworthy despite relations, and investigation gaps were not fatal.
Appeal allowed in part; conviction confirmed; sentence modified to period already undergone.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No. 272 of 1994
(An application under Article 226 & 227 of the Constitution of India)
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AFR Sambhunath Biswal & Others ...… Appellants -VersusState of Odisha .... Respondent
Advocate(s) appeared in this case:-
For Petitioner : M/S. D.Panda,
J.Rath, Advocates.
For Opp. Parties : Mr. S.K.Mishra
Additional Standing Counsel
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
16th March, 2023
SASHIKANTA MISHRA, J.
. The appellants challenge the judgment of
conviction and sentence passed by Learned Additional Sessions Judge, Kendrapara on 02.08.1994 in ST case No. 126/15 of 1993 whereby, they were convicted for the offence under Section 304 (Part-II) read with Section 149 of IPC and sentenced to undergo Rigorous Imprisonment for 3 years. Be it noted here that during pendency of the appeal, appellant
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Bhagaban Biswal having expired, the case against him has abated.
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to Kendrapara sub-divisional hospital as his condition deteriorated. He could not be shifted that night as it was raining and therefore, on the next day he was taken to Kendrapara hospital from where he was referred to SCB Medical College, Cuttack. In course of treatment, Sarat succumbed to his injuries on 20.06.1992 at 9 a.m. This led to registration of a UD case by the Mangalabag Police Station who conducted inquest and post mortem over the dead body.
Upon return to his village Maheswar lodged FIR at Pattamundei Police Station, leading to registration of Pattamundei P.S. case No. 75/92 under Section 147,148,323,325,302,149 IPC, followed by investigation. Upon completion of investigation charge-sheet was submitted against the accused persons also under the aforementioned offences.
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witnesses. P.W.6 is the doctor who issued injury certificate in respect of the injured persons. P.W.7 is the autopsy surgeon and P.W.10 is the I.O. Prosecution also proved 7 documents. Defence examined two witnesses from its side but did not adduce any documentary evidence. No material objects were proved by either parties.
(i) There was inordinate delay in lodging of the FIR which suggests that the same was lodged after due deliberation.
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(ii) All the witnesses, whose version was relied upon by the trial Court are close relations of the deceased and the informant and are therefore, interested witnesses.
(iii) There are serious discrepancies relating to the site of injuries sustained by the deceased.
(iv) The investigation in the case was faulty as there are several unexplained gaps therein.
On the above basis, Mr. Mishra contends that the finding of the trial Court is not acceptable.
points raised by the appellants before this Court were raised before the Court below and adequately answered. The trial Court has cited appropriate reasons in such regard and there is no reason for this court to interfere with such findings.
by the parties, this Court finds that there as many as five
witnesses who claimed to have been seen the occurrence including some injured witnesses. Having gone through the evidence of such witnesses namely, P.Ws. 1,3,4,5 and 8 this Court finds that they have vividly described the occurrence in
all material details. Further, all of them were extensively cross-examined but nothing material was elicited from them
to doubt the veracity of their statements. From the evidence
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so laid, this Court finds that on the date of occurrence there was an altercation between the accused persons and the informant initially and the deceased subsequently in course of which, the accused persons assaulted the deceased by means of lathis and pelted bricks which struck his head. The post mortem report marked Exhibit 6 is fully consistent with the version of the witnesses relating to the injuries sustained by the deceased. The autopsy surgeon being examined as P.W.7 has described the external and internal injuries sustained by the deceased and has opined that the same are ante mortem in nature, suggestive of blunt trauma and appear to be homicidal in nature. She further stated that death was due to trauma resulting from the Cranio-cerebral injuries and that the head injury was fatal in ordinary course of nature. Thus, there is clear evidence that the death of the deceased was the result of the injuries sustained by him in course of assault by the accused person. However, there is no evidence of such act being a pre-meditated one rather, from the evidence of the witnesses and particularly that of the informant (P.W.1), it is clear that the incident arose out of a sudden quarrel without any premeditaton. Though there is some evidence relating to prior civil dispute between the parties yet it cannot be said that the same was of such
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nature as to goad the accused persons to commit the murder of the deceased rather, it is borne out from the evidence that in course of the quarrel when the deceased intervened with the intention of rescuing his mother, the accused persons had assaulted him. Therefore, the offence under Section 302 is not made out and as rightly held by the court below, this is a clear case of culpable homicide not amounting to murder.
“xxxx xxxx xxxx xxxx I went to Cuttack with my brother Bhikari. I advised Bharat and Asoka to report at P.S. but they did not do that. Pattamundai p.s. is 9 k.m. from my village. I proceeded Cuttack via Indupur and there is a police station at Indupur. The condition of the patient is so serious we could not leave him to report at p.s. Again says there is no p.s. at Indupur. We reached Kendrapara at 3.30. A.M.”
Though it is argued by Mr. Mishra that there was an oral
report at the police station which ought to have been reduced to writing yet the evidence in such regard is not very clear.
The explanation offered by P.W.1 appears to be reasonable
and quite plausible. Obviously when a close relation was assaulted severely and was in serious condition, the first
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reaction of his relations would be to arrange for his treatment instead of approaching the police station. This court, therefore, finds no merit in the contention raised.
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holding that the prosecution witnesses being rustic villagers cannot be expected to depose parrot-like what they had deposed a considerable time before. This Court concurs with such reasoning.
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They have suffered imprisonment for sometime during trial.
Mr. Mishra, urges that the sentences should be modified to
the period already undergone.
by them after the occurrence. They have also suffered imprisonment for sometime during trial. This court is therefore, of the view that ends of justice would be served by modifying the sentence imposed to the period already undergone by the appellants.
……..…………………..
Sashikanta Mishra, Judge
Orissa High Court, Cuttack, The 16th March, 2023/ Deepak
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2 issues framed by the court
Whether the evidence of conviction under culpable homicide not amounting to murder withstands the appellant's challenge regarding inordinate delay in FIR, interested witnesses, and discrepancies in in
Whether the sentence of rigorous imprisonment for three years should be modified to the period already undergone by the appellants given the lapse of time and their age.
2 provisions across 2 enactments
Sambhunath Biswal & Others
State of Odisha
Sashikanta Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
