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
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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
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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
3contradictions. 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
