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Biranchi Narayan Sahoo vs State Of Orissa on 19 December, 2009

Orissa High Court Biranchi Narayan Sahoo vs State Of Orissa on 19 December, 2009

HIGH COURT OF ORISSA,

CUTTACK

CRIMINAL APPEAL No.157 of 1996

From the judgment dated 30.04.1996 passed by Shri A.C. Mohanty, 2nd Additional Sessions Judge, Bhubaneswar in S.T. No.7/29 of 1996.

Biranchi Narayan Sahoo …… Appellant

Versus

State of Orissa …… Respondent

For Appellant : M/s J.K. Panda and

S. Pradhan

For Respondent : Mr. K.K. Mishra,

Addl. Govt. Advocate

PRESENT:

THE HON’BLE SHRI JUSTICE PRADIP MOHANTY

AND

THE HON’BLE SHRI JUSTICE B.K.PATEL

————————————————————————————– Date of hearing & judgment : 19.12.2009

PRADIP MOHANTY, J. Challenge in this appeal is to the judgment and order dated 30.04.1996 passed by the learned 2nd Additional Sessions Judge, Bhubaneswar in ST. No.7/29 of 1996 convicting the appellant under Sections 302/323 I.P.C. and sentencing him to undergo rigorous imprisonment for life.

2. This is a case of patricide. Sans unnecessary details, the prosecution allegation is that the appellant is the natural born son of the deceased. He had been adopted by his maternal grandparents and was residing with them at village Nuapatna whereas the deceased was residing in his own house at Lewis Road, Bhubaneswar along with other family members. Ground floor of his house was let out to different tenants including P.Ws.1, 6 and 9. The appellant was frequently demanding money, gold and property from the deceased and was quarrelling with him. On 15.08.1995 at 10.00 AM, the appellant had 2

come near the room where P.W.6 Nabaghana was staying on rent. At about 2.30 PM he again came and created some disturbance searching for Nabaghana, but at the intervention of P.W.1 and his brothers, the appellant went back. At about 3.00 PM on the same day, the appellant once again came to the residence of the deceased in the first floor holding a bhujali. Seeing the bhujali, the younger daughter of the deceased (P.W.8) tried to prevent him, but the appellant gave a slap and brandished the bhujali causing injury on her hand. The deceased, his elder brother P.W.10, wife P.W.12 and elder daughter P.W.11 intervened, but the appellant saying to commit murder stabbed on the abdomen of the deceased causing serious bleeding injury. The appellant pulled the bhujali from the abdomen of the deceased, as a result of which his intestine came out through the wound. The appellant was overpowered with the help of other persons who arrived there. On the basis of information (Ext.4) lodged by the injured P.W.8 although the case was initially registered for attempt to commit murder, it was turned to Section 302 IPC as the deceased succumbed to the injury on the same day. The police sprang into action and after conclusion of investigation filed charge-sheet against the appellant.

3. The appellant took the plea of denial and false implication.

4. In order to prove its case, prosecution examined as many as twenty witnesses and exhibited thirty-three documents. The defence examined one witness.

5. The trial court on careful scrutiny of the evidence adduced by both the parties convicted the appellant under sections 302 and 323, IPC and sentenced him to undergo imprisonment for life for the offence under Section 302, IPC. No separate sentence was imposed for the conviction under Section 323, lPC.

6. Mr. Panda, learned counsel for the appellant seeks to assail the judgment of the trial court on the following grounds:

(i) P.Ws.8, 10, 11 and 12, the so called eye witnesses, are inimical towards the appellant and interested for successful termination of the case. That apart, their evidence suffers from major 3

contradictions. So, the trial court should not have accepted their evidence for awarding the conviction.

(II) In absence of any evidence that the alleged weapon of offence was seized from the appellant, the trial court should not have convicted him.

(III) Prosecution has not explained the injury on the person of the appellant and no motive has been proved by the prosecution against the appellant.

(iv) Evidence of P.Ws.1, 6 and 19 to the effect that deceased disclosed before them to have been stabbed by the appellant is highly doubtful on the face of the evidence of P.W.18 that the condition of the deceased was serious.

(v) His alternative argument is that since it is alleged that one blow was given, it is presumed that the appellant had no intention to kill the deceased and, therefore, the conviction of the appellant may be turned to section 304 Part-II, I.P.C.

Learned counsel for the appellant relies upon the decisions reported in Jagruti Devi V State of H.P., 2009 AIR SCW 5206, Indrasan v. State of U.P., 2009 AIR SCW 5203, Narasingh Bisoi v. State, 1986 (II) OLR 313, Bishnu Charan Das v. The State, 1985 (I) OLR 148, Manke Ram v. State of Haryana, AIR 2003 (SC) 4147, Sandhya Jadhav (Smt) v. State of Maharashtra, (2006) 4 SCC 653 and Jagrup Singh v. State of Haryana, AIR 1981 SC 1552.

7. Mr. Mishra, learned Additional Government Advocate vehemently contends that there are direct materials which prove the guilt of the appellant. P.Ws.8, 10, 11 and 12 are the eye witnesses and their evidence is very clear, cogent and consistent in establishing that it is the appellant who stabbed the deceased. P.Ws.8 and 11 are also the injured and in their evidence they categorically stated that while they were preventing the accused from stabbing the deceased they sustained injuries. P.Ws.10 and 12 corroborate the evidence of P.Ws.8 and 11. The evidence that appellant was frequently demanding money, gold, property, etc. from the deceased claiming that the deceased was depriving him of the properties of his adoptive parents proves the motive. It is there in the 4

evidence that after stabbing the deceased while the appellant was trying to escape he was overpowered by the witnesses and in the process there was a scuffle between them. So, the presumption that the injuries on the person of the appellant are result of such scuffle cannot be ruled out. There is no evidence with regard to sudden provocation and, therefore, the act of the appellant cannot come within the ambit of section 304 Part-II, IPC.

8. Perused the LCR and the decisions cited by the appellant. P.W.8 is the informant. She is the daughter of the deceased and sister of the accused-appellant. She stated in her deposition that the appellant was not pulling on well with her father (deceased) and was frequently demanding money, gold and other property from him. The appellant was scolding the deceased and threatening to assault him when he was not complying with his demands. On the date of occurrence, the appellant came to the residence of P.W.6 and searched for him, but on the interference of P.W.1, he went back. Again at 2.30 P.M. on the same day, the accused-appellant came and knocked at the door of P.W.6 giving threats to kill P.W.6 as well as her father. P.W.1 with his brothers and other relations interfered and the appellant went away from the premises. At about 3.00 P.M. on the same day, the appellant suddenly came to the up stair of their building holding a bhujali. Seeing the appellant being armed, her father’s elder brother (P.W.10) tried to prevent, but the appellant kicked him and entered inside. Then P.W.8 herself tried to prevent the appellant, but he dealt a slap and brandished the bhujali which struck against her left wrist causing bleeding injury. When she started crying, her parents, sister and father’s elder brother came near her and tried to prevent the appellant. As the appellant was brandishing the bhujali, deceased sustained cut injury on his right forearm and her sister (P.W.11) also sustained bleeding injury on her left thumb. The accused-appellant also dealt a kick to her father’s elder brother (P.W.10) who fell down. Then the appellant stabbed on the right side belly of her father (deceased) by means of the said bhujali, as a result of which he sustained serious bleeding injury. The deceased pressed the injured part of the belly by means of his left hand and tried to pull out the bhujali from the belly by his right hand, but the appellant was trying to push that bhujali further into the belly of the deceased. After hearing the cry, P.Ws.3, 7 and Milu, the brother of P.W.1, came to the upstair. They physically intervened and separated the appellant from the deceased, but the appellant brought out the 5

bhujali from the belly of the deceased, as a result of which the intestine of the deceased came out. The deceased was shifted to the Capital Hospital by P.Ws.1, 2, 6 and Firoz Khan (P.W.17). She then went to Bhubaneswar Police Station and lodged FIR ( Ext.4). Thereafter, she and her sister (P.W.11) went to the Bhubaneswar Municipal Hospital for treatment on police requisition. The defence has not elicited a single word from the mouth of this witness to support its case. Her evidence is very clear, cogent and consistent. There is nothing to disbelieve her testimony. The evidence of P.W.8 is substantially corroborated by the evidence of P.Ws.10, 11 and 12. The FIR also corroborates the evidence of P.W.8. P.Ws.10, 11 and 12 are the ocular witnesses. P.W.10 is the elder brother of the deceased, P.W.11 is the daughter of the deceased and sister of the accused and P.W.12 is wife of the deceased and mother of the appellant. Nothing has been elicited by the defence through cross-examination to discredit their testimony. P.Ws.3, 7 and 9 are the independent witnesses who reached the spot on hearing hullah and witnessed a part of the occurrence. P.W.2, the younger brother of the accused and son of the deceased, is a post occurrence witness. He stated in his evidence that his father was lying on the verandah sustaining a cut injury on his right fore-arm and serious bleeding injury on the belly and his intestine was protruding. His father (deceased) disclosed that the appellant assaulted him by bhujali causing those injuries. He also stated about the presence of other witnesses including P.W.1. He also found the accused-appellant being detained nearby by some persons of the locality. This witness along with P.W.1, Firoz Khan (P.W.17) and Nabaghana Jena (P.W.6) shifted the deceased to Capital Hospital, Bhubaneswar by a car. Nothing has been elicited through cross- examination to discredit his evidence. In cross-examination he, however, admitted that for non-fulfilment of frequent demand of money, the accused was quarrelling with the deceased and also threatening to assault. P.W.1 is the tenant of the deceased and residing in the ground floor. He stated in his examination-in-chief that on the day of occurrence at about 10.00 AM the wife of P.W.6, Naba came to him through the back side of the house and told that the accused was searching for her husband saying that he would assault Naba (P.W.6). Getting that information, his younger brother Pradyumna @ Gulu P.W.3 first came out and talked something with the accused and thereafter they tried to give consolation to the accused-appellant as he was in an agitating mood and was searching for Naba. On being called, the wife of P.W.6 came there and accused threatened her 6

and asked about Naba. On the same day at about 2.15 P.M. he heard heavy knocking sound on the door of Naba and shouting of the accused-appellant who was abusing Naba in obscene language. Hearing that P.W.1 came out from his residence and found that the accused was knocking at the door of Naba by means of an iron rod and abusing Naba. He tried to give consolation to the accused and requested him to go away from that place without creating any trouble. At that time Pradyumna @ Gulu (P.W.3) and Prasanna @ Milu (P.W.9) came outside. The deceased was also found coming down from the stair case. Seeing the deceased, the accused left that place. On the same day at 3.00 P.M, P.W.1 heard noise in the up stair in the residence of the deceased. Hearing this, P.W.3, P.W.9 and P.W.1’s nephew Deepak Pattnaik rushed to the up stair. Of them, P.W.3 came down immediately and asked P.W.1 to arrange some vehicle for shifting the deceased to the hospital as the accused had stabbed the deceased by bhujali. P.W.1 immediately went to the up stair and found Laxmidhar (deceased) lying in their entrance room with bleeding injury on the right side belly and his intestine had come out. Besides that, he had also sustained a cut injury on his right fore-arm. Being asked by him, deceased told that Biranch (accused) had assaulted on his belly and hand by means of a bhujali and requested to arrange some vehicle to shift him to the hospital. At that time, the younger son of the deceased reached there. Then he along with Tikina, the younger son of the deceased, P.W.6, and P.W.17 shifted the deceased to Capital Hospital in a Taxi. He noticed that some persons of the locality had detained the accused in an open place situated near that building. On the same day at about 6.00 PM, the deceased died in the hospital. He also heard about the demand of money by the appellant from his father and when his demand was not being fulfilled, the accused was scolding the deceased and throwing brickbats at him. He heard it from some persons of the locality. Nothing has been elicited through his cross-examination to disbelieve his version. P.Ws.3, 7 and 9 have also substantially corroborated the evidence of P.W.1. P.W.17 is Feroz Khan who was working in the garage (tyre repairing shop) which is situated in front of the residence of the deceased. He specifically stated that the accused had once come at 10.00 A.M. Again he came at 2.30 PM, parked the bike in front of his shop, took a tyre lever iron rod from his shop and went towards the building of the deceased. The accused once again came at 3.00 P.M., brought out a bhujali and throwing the cover of that bhujali went to the upstair house of the deceased. After 7

a while, hearing hue and cry he rushed to the upstair and saw that the deceased had sustained bleeding injury on his belly and his intestine had come out and the accused was detained by P.W.9 and some other persons. He admitted the presence of P.Ws.1, 3, 7and 9. Thereafter, they brought the deceased to the ground floor and placed him on the verandah. His evidence is materially corroborated by P.Ws.1, 6, 7 and 9. Despite thorough cross-examination his evidence remained unshaken. P.W.18 is the Surgery Specialist, who treated the deceased and he proved the injury report of the deceased. He gave out that the deceased was received at 3.30 P.M. with penetrating injury of abdomen with prolapse of intestines and the deceased was immediately shifted to operation theatre. Despite all efforts the deceased expired on 15.08.1995 at 6.00 P.M. Ext.18 is the bed head ticket of the deceased. Nothing contrary has been elicited from him through cross-examination. P.W.5 is the doctor, who conducted autopsy over the dead body of the deceased and proved the post mortem report (Ext.10). He opined that death was due to haemorrhage and shock resulting from the injuries to liver and aorta and inferior venacava by the external injury no.2. He also found one incised wound over the back of right forearm. He further opined that all the injuries were ante mortem in nature and the external injury no.2 was sufficient to cause death in ordinary course of nature. Nothing has been elicited through cross-examination to belie his testimony. The testimonies of ocular witnesses found corroboration from the medical evidence.

From the above analysis of the prosecution evidence, it is crystal clear that the present appellant is the assailant and was responsible for causing fatal injury by stabbing on the belly of the deceased. The motive for committing such gruesome and heinous crime writs large from the evidence of the prosecution witnesses and it has been well established by the prosecution.

9. Now the question is whether the act committed by the appellant comes under Exception 4 of Section 300, IPC and his conviction can be converted to Section 304 Part-II, IPC. The whole thing depends upon the intention to cause death. It is the settled principle of law that the nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death. In the case at hand, the present appellant used a bhujali and in spite of prevention by the witnesses, he pushed the bhujali into the belly of the deceased and when 8

deceased tried to put his hand on the wound and pull out the bhujali, the appellant pushed the bhujali further to the inner part of the abdomen. It shows the intention of the accused to kill the deceased. Therefore, by no stretch of imagination the act committed by the appellant will come within the ambit of Exception 4 to Section 300 IPC. Accordingly, the contention for conversion of conviction of the appellant to one under section 304 Part-II, IPC is rejected. The facts of the decisions cited by the appellant are different from that of the present case. In all those decisions, motive or intention had not been proved whereas in the present case motive as well as the intention of the appellant behind commission of the crime has been proved beyond reasonable doubt.

10. In the result, the Criminal Appeal is dismissed and the judgment of conviction and sentence passed by the trial court is upheld.

………………………..

Pradip Mohanty,J.

B.K.Patel, J. I agree.

………………………..

B.K.Patel, J.

Orissa High Court, Cuttack

The 19th December ,2009/Routray

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