{"id":121290,"date":"2009-12-19T00:00:00","date_gmt":"2009-12-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/biranchi-narayan-sahoo-vs-state-of-orissa-on-19-december-2009"},"modified":"2014-07-04T12:27:41","modified_gmt":"2014-07-04T06:57:41","slug":"biranchi-narayan-sahoo-vs-state-of-orissa-on-19-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/biranchi-narayan-sahoo-vs-state-of-orissa-on-19-december-2009","title":{"rendered":"Biranchi Narayan Sahoo vs State Of Orissa on 19 December, 2009"},"content":{"rendered":"
Orissa High Court<\/div>\n
Biranchi Narayan Sahoo vs State Of Orissa on 19 December, 2009<\/div>\n
                                  HIGH COURT OF ORISSA,\n                                        CUTTACK\n\n                           CRIMINAL APPEAL No.157 of 1996\n\n        From the judgment dated 30.04.1996 passed by Shri A.C. Mohanty, 2nd\n        Additional Sessions Judge, Bhubaneswar in S.T. No.7\/29 of 1996.\n\n        Biranchi Narayan Sahoo                                      ......          Appellant\n\n                                             Versus\n\n        State of Orissa                                             ......       Respondent\n\n\n               For Appellant          :      M\/s J.K. Panda and\n                                                 S. Pradhan\n\n               For Respondent         :      Mr. K.K. Mishra,\n                                             Addl. Govt. Advocate\n\n        PRESENT:\n\n                      THE HON'BLE SHRI JUSTICE PRADIP MOHANTY\n                                        AND\n                         THE HON'BLE SHRI JUSTICE B.K.PATEL\n\n        --------------------------------------------------------------------------------------\n<\/pre>\n
                           Date of hearing & judgment : 19.12.2009<\/p>\n
PRADIP MOHANTY, J. Challenge in this appeal is to the judgment and order dated
\n        30.04.1996 passed by the learned 2nd Additional Sessions Judge, Bhubaneswar in
\n        ST. No.7\/29 of 1996 convicting the appellant under Sections 302\/323 I.P.C. and
\n        sentencing him to undergo rigorous imprisonment for life.\n<\/p>\n
        2.                    This is a case of patricide. Sans unnecessary details, the
\n        prosecution allegation is that the appellant is the natural born son of the
\n        deceased. He had been adopted by his maternal grandparents and was residing
\n        with them at village Nuapatna whereas the deceased was residing in his own
\n        house at Lewis Road, Bhubaneswar along with other family members. Ground
\n        floor of his house was let out to different tenants including P.Ws.1, 6 and 9. The
\n        appellant was frequently demanding money, gold and property from the deceased
\n        and was quarrelling with him. On 15.08.1995 at 10.00 AM, the appellant had
\n                                              2<\/span><\/p>\n
come near the room where P.W.6 Nabaghana was staying on rent. At about 2.30
\nPM he again came and created some disturbance searching for Nabaghana, but
\nat the intervention of P.W.1 and his brothers, the appellant went back. At about
\n3.00 PM on the same day, the appellant once again came to the residence of the
\ndeceased in the first floor holding a bhujali. Seeing the bhujali, the younger
\ndaughter of the deceased (P.W.8) tried to prevent him, but the appellant gave a
\nslap and brandished the bhujali causing injury on her hand. The deceased, his
\nelder brother P.W.10, wife P.W.12 and elder daughter P.W.11 intervened, but the
\nappellant saying to commit murder stabbed on the abdomen of the deceased
\ncausing serious bleeding injury. The appellant pulled the bhujali from the
\nabdomen of the deceased, as a result of which his intestine came out through the
\nwound. The appellant was overpowered with the help of other persons who
\narrived there. On the basis of information (Ext.4) lodged by the injured P.W.8
\nalthough the case was initially registered for attempt to commit murder, it was
\nturned to Section 302 IPC as the deceased succumbed to the injury on the same
\nday.   The police sprang into action and after conclusion of investigation filed
\ncharge-sheet against the appellant.\n<\/p>\n
3.                    The appellant took the plea of denial and false implication.\n<\/p>\n
4.                    In order to prove its case, prosecution examined as many as
\ntwenty witnesses and exhibited thirty-three documents. The defence examined
\none witness.\n<\/p>\n
5.                    The trial court on careful scrutiny of the evidence adduced by
\nboth the parties convicted the appellant under sections 302 and 323, IPC and
\nsentenced him to undergo imprisonment for life for the offence under Section 302,
\nIPC. No separate sentence was imposed for the conviction under Section 323,
\nlPC.\n<\/p>\n
6.                    Mr. Panda, learned counsel for the appellant seeks to assail
\nthe judgment of the trial court on the following grounds:\n<\/p>\n
       (i)     P.Ws.8, 10, 11 and 12, the so called eye witnesses, are inimical
\n               towards the appellant and interested for successful termination of
\n               the   case.   That   apart,       their   evidence   suffers   from   major
\n                                            3<\/span><\/p>\n
              contradictions. So, the trial court should not have accepted their
\n              evidence for awarding the conviction.\n<\/p><\/blockquote>\n
      (II)    In absence of any evidence that the alleged weapon of offence was
\n              seized from the appellant, the trial court should not have convicted
\n              him.\n<\/p><\/blockquote>\n
      (III)   Prosecution has not explained the injury on the person of the
\n              appellant and no motive has been proved by the prosecution against
\n              the appellant.\n<\/p><\/blockquote>\n
      (iv)    Evidence of P.Ws.1, 6 and 19 to the effect that deceased disclosed
\n              before them to have been stabbed by the appellant is highly doubtful
\n              on the face of the evidence of P.W.18 that the condition of the
\n              deceased was serious.\n<\/p><\/blockquote>\n
      (v)     His alternative argument is that since it is alleged that one blow was
\n              given, it is presumed that the appellant had no intention to kill the
\n              deceased and, therefore, the conviction of the appellant may be
\n              turned to section 304 Part-II, I.P.C.<\/p><\/blockquote>\n
                     Learned counsel for the appellant relies upon the decisions
\nreported in Jagruti Devi V State of H.P., 2009 AIR SCW 5206, Indrasan v. State
\nof U.P.,<\/a> 2009 AIR SCW 5203, Narasingh Bisoi v. State, 1986 (II) OLR 313,
\nBishnu Charan Das v. The State, 1985 (I) OLR 148, Manke Ram v. State of
\nHaryana, AIR 2003 (SC) 4147, Sandhya Jadhav (Smt) v. State of
\nMaharashtra,<\/a> (2006) 4 SCC 653 and Jagrup Singh v. State of Haryana, AIR<\/a>
\n1981 SC 1552.\n<\/p>\n
7.                   Mr.   Mishra,   learned    Additional   Government   Advocate
\nvehemently contends that there are direct materials which prove the guilt of the
\nappellant. P.Ws.8, 10, 11 and 12 are the eye witnesses and their evidence is very
\nclear, cogent and consistent in establishing that it is the appellant who stabbed
\nthe deceased. P.Ws.8 and 11 are also the injured and in their evidence they
\ncategorically stated that while they were preventing the accused from stabbing the
\ndeceased they sustained injuries. P.Ws.10 and 12 corroborate the evidence of
\nP.Ws.8 and 11. The evidence that appellant was frequently demanding money,
\ngold, property, etc. from the deceased claiming that the deceased was depriving
\nhim of the properties of his adoptive parents proves the motive. It is there in the
\n                                           4<\/span><\/p>\n
evidence that after stabbing the deceased while the appellant was trying to
\nescape he was overpowered by the witnesses and in the process there was a
\nscuffle between them. So, the presumption that the injuries on the person of the
\nappellant are result of such scuffle cannot be ruled out. There is no evidence with
\nregard to sudden provocation and, therefore, the act of the appellant cannot come
\nwithin the ambit of section 304 Part-II, IPC.\n<\/p>\n
8.                   Perused the LCR and the decisions cited by the appellant.
\nP.W.8 is the informant. She is the daughter of the deceased and sister of the
\naccused-appellant. She stated in her deposition that the appellant was not pulling
\non well with her father (deceased) and was frequently demanding money, gold
\nand other property from him.      The appellant was scolding the deceased and
\nthreatening to assault him when he was not complying with his demands. On the
\ndate of occurrence, the appellant came to the residence of P.W.6 and searched
\nfor him, but on the interference of P.W.1, he went back. Again at 2.30 P.M. on the
\nsame day, the accused-appellant came and knocked at the door of P.W.6 giving
\nthreats to kill P.W.6 as well as her father. P.W.1 with his brothers and other
\nrelations interfered and the appellant went away from the premises. At about 3.00
\nP.M. on the same day, the appellant suddenly came to the up stair of their
\nbuilding holding a bhujali. Seeing the appellant being armed, her father’s elder
\nbrother (P.W.10) tried to prevent, but the appellant kicked him and entered inside.
\nThen P.W.8 herself tried to prevent the appellant, but he dealt a slap and
\nbrandished the bhujali which struck against her left wrist causing bleeding injury.
\nWhen she started crying, her parents, sister and father’s elder brother came near
\nher and tried to prevent the appellant. As the appellant was brandishing the
\nbhujali, deceased sustained cut injury on his right forearm and her sister (P.W.11)
\nalso sustained bleeding injury on her left thumb. The accused-appellant also dealt
\na kick to her father’s elder brother (P.W.10) who fell down. Then the appellant
\nstabbed on the right side belly of her father (deceased) by means of the said
\nbhujali, as a result of which he sustained serious bleeding injury. The deceased
\npressed the injured part of the belly by means of his left hand and tried to pull out
\nthe bhujali from the belly by his right hand, but the appellant was trying to push
\nthat bhujali further into the belly of the deceased. After hearing the cry, P.Ws.3, 7
\nand Milu, the brother of P.W.1, came to the upstair. They physically intervened
\nand separated the appellant from the deceased, but the appellant brought out the
\n                                         5<\/span><\/p>\n
bhujali from the belly of the deceased, as a result of which the intestine of the
\ndeceased came out. The deceased was shifted to the Capital Hospital by P.Ws.1,
\n2, 6 and Firoz Khan (P.W.17). She then went to Bhubaneswar Police Station and
\nlodged FIR ( Ext.4). Thereafter, she and her sister (P.W.11) went to the
\nBhubaneswar Municipal Hospital for treatment on police requisition. The defence
\nhas not elicited a single word from the mouth of this witness to support its case.
\nHer evidence is very clear, cogent and consistent. There is nothing to disbelieve
\nher testimony. The evidence of P.W.8 is substantially corroborated by the
\nevidence of P.Ws.10, 11 and 12. The FIR also corroborates the evidence of
\nP.W.8. P.Ws.10, 11 and 12 are the ocular witnesses. P.W.10 is the elder brother
\nof the deceased, P.W.11 is the daughter of the deceased and sister of the
\naccused and P.W.12 is wife of the deceased and mother of the appellant. Nothing
\nhas been elicited by the defence through cross-examination to discredit their
\ntestimony. P.Ws.3, 7 and 9 are the independent witnesses who reached the spot
\non hearing hullah and witnessed a part of the occurrence. P.W.2, the younger
\nbrother of the accused and son of the deceased, is a post occurrence witness. He
\nstated in his evidence that his father was lying on the verandah sustaining a cut
\ninjury on his right fore-arm and serious bleeding injury on the belly and his
\nintestine was protruding.   His father (deceased) disclosed that the appellant
\nassaulted him by bhujali causing those injuries. He also stated about the presence
\nof other witnesses including P.W.1. He also found the accused-appellant being
\ndetained nearby by some persons of the locality. This witness along with P.W.1,
\nFiroz Khan (P.W.17) and Nabaghana Jena (P.W.6) shifted the deceased to
\nCapital Hospital, Bhubaneswar by a car. Nothing has been elicited through cross-
\nexamination to discredit his evidence. In cross-examination he, however, admitted
\nthat for non-fulfilment of frequent demand of money, the accused was quarrelling
\nwith the deceased and also threatening to assault. P.W.1 is the tenant of the
\ndeceased and residing in the ground floor. He stated in his examination-in-chief
\nthat on the day of occurrence at about 10.00 AM the wife of P.W.6, Naba came to
\nhim through the back side of the house and told that the accused was searching
\nfor her husband saying that he would assault Naba (P.W.6). Getting that
\ninformation, his younger brother Pradyumna @ Gulu P.W.3 first came out and
\ntalked something with the accused and thereafter they tried to give consolation to
\nthe accused-appellant as he was in an agitating mood and was searching for
\nNaba. On being called, the wife of P.W.6 came there and accused threatened her
\n                                          6<\/span><\/p>\n
and asked about Naba. On the same day at about 2.15 P.M. he heard heavy
\nknocking sound on the door of Naba and shouting of the accused-appellant who
\nwas abusing Naba in obscene language. Hearing that P.W.1 came out from his
\nresidence and found that the accused was knocking at the door of Naba by
\nmeans of an iron rod and abusing Naba. He tried to give consolation to the
\naccused and requested him to go away from that place without creating any
\ntrouble. At that time Pradyumna @ Gulu (P.W.3) and Prasanna @ Milu (P.W.9)
\ncame outside. The deceased was also found coming down from the stair case.
\nSeeing the deceased, the accused left that place. On the same day at 3.00 P.M,
\nP.W.1 heard noise in the up stair in the residence of the deceased. Hearing this,
\nP.W.3, P.W.9 and P.W.1’s nephew Deepak Pattnaik rushed to the up stair. Of
\nthem, P.W.3 came down immediately and asked P.W.1 to arrange some vehicle
\nfor shifting the deceased to the hospital as the accused had stabbed the
\ndeceased by bhujali.     P.W.1 immediately went to the up stair and found
\nLaxmidhar (deceased) lying in their entrance room with bleeding injury on the right
\nside belly and his intestine had come out. Besides that, he had also sustained a
\ncut injury on his right fore-arm. Being asked by him, deceased told that Biranch
\n(accused) had assaulted on his belly and hand by means of a bhujali and
\nrequested to arrange some vehicle to shift him to the hospital. At that time, the
\nyounger son of the deceased reached there. Then he along with Tikina, the
\nyounger son of the deceased, P.W.6, and P.W.17 shifted the deceased to Capital
\nHospital in a Taxi. He noticed that some persons of the locality had detained the
\naccused in an open place situated near that building. On the same day at about
\n6.00 PM, the deceased died in the hospital. He also heard about the demand of
\nmoney by the appellant from his father and when his demand was not being
\nfulfilled, the accused was scolding the deceased and throwing brickbats at him.
\nHe heard it from some persons of the locality. Nothing has been elicited through
\nhis cross-examination to disbelieve his version. P.Ws.3, 7 and 9 have also
\nsubstantially corroborated the evidence of P.W.1. P.W.17 is Feroz Khan who was
\nworking in the garage (tyre repairing shop) which is situated in front of the
\nresidence of the deceased. He specifically stated that the accused had once
\ncome at 10.00 A.M. Again he came at 2.30 PM, parked the bike in front of his
\nshop, took a tyre lever iron rod from his shop and went towards the building of the
\ndeceased. The accused once again came at 3.00 P.M., brought out a bhujali and
\nthrowing the cover of that bhujali went to the upstair house of the deceased. After
\n                                            7<\/span><\/p>\n
a while, hearing hue and cry he rushed to the upstair and saw that the deceased
\nhad sustained bleeding injury on his belly and his intestine had come out and the
\naccused was detained by P.W.9 and some other persons. He admitted the
\npresence of P.Ws.1, 3, 7and 9. Thereafter, they brought the deceased to the
\nground floor and placed him on the verandah. His evidence is materially
\ncorroborated by P.Ws.1, 6, 7 and 9.        Despite thorough cross-examination his
\nevidence remained unshaken. P.W.18 is the Surgery Specialist, who treated the
\ndeceased and he proved the injury report of the deceased. He gave out that the
\ndeceased was received at 3.30 P.M. with penetrating injury of abdomen with
\nprolapse of intestines and the deceased was immediately shifted to operation
\ntheatre. Despite all efforts the deceased expired on 15.08.1995 at 6.00 P.M.
\nExt.18 is the bed head ticket of the deceased. Nothing contrary has been elicited
\nfrom him through cross-examination. P.W.5 is the doctor, who conducted autopsy
\nover the dead body of the deceased and proved the post mortem report (Ext.10).
\nHe opined that death was due to haemorrhage and shock resulting from the
\ninjuries to liver and aorta and inferior venacava by the external injury no.2. He
\nalso found one incised wound over the back of right forearm. He further opined
\nthat all the injuries were ante mortem in nature and the external injury no.2 was
\nsufficient to cause death in ordinary course of nature. Nothing has been elicited
\nthrough cross-examination to belie his testimony. The testimonies of ocular
\nwitnesses found corroboration from the medical evidence.\n<\/p>\n
                     From the above analysis of the prosecution evidence, it is
\ncrystal clear that the present appellant is the assailant and was responsible for
\ncausing fatal injury by stabbing on the belly of the deceased. The motive for
\ncommitting such gruesome and heinous crime writs large from the evidence of the
\nprosecution witnesses and it has been well established by the prosecution.\n<\/p>\n
9.                   Now the question is whether the act committed by the
\nappellant comes under Exception 4 of Section 300, IPC and his conviction can be
\nconverted to Section 304 Part-II, IPC. The whole thing depends upon the intention
\nto cause death. It is the settled principle of law that the nature of intention must be
\ngathered from the kind of weapon used, the part of the body hit, the amount of
\nforce employed and the circumstances attendant upon the death. In the case at
\nhand, the present appellant used a bhujali and in spite of prevention by the
\nwitnesses, he pushed the bhujali into the belly of the deceased and when
\n                                                    8<\/span><\/p>\n
         deceased tried to put his hand on the wound and pull out the bhujali, the appellant
\n         pushed the bhujali further to the inner part of the abdomen. It shows the intention
\n         of the accused to kill the deceased. Therefore, by no stretch of imagination the act
\n         committed by the appellant will come within the ambit of Exception 4 to Section
\n         300 IPC. Accordingly, the contention for conversion of conviction of the appellant
\n         to one under section 304 Part-II, IPC is rejected. The facts of the decisions cited
\n         by the appellant are different from that of the present case. In all those decisions,
\n         motive or intention had not been proved whereas in the present case motive as
\n         well as the intention of the appellant behind commission of the crime has been
\n         proved beyond reasonable doubt.\n<\/p>\n
         10.                  In the result, the Criminal Appeal is dismissed and the
\n         judgment of conviction and sentence passed by the trial court is upheld.\n<\/p>\n
                                                                ………………………..\n<\/p>\n
                                                                Pradip Mohanty,J.\n<\/p>\n
B.K.Patel, J.                 I agree.\n\n\n                                                                 .............................\n                                                                   B.K.Patel, J.\n\n\n         Orissa High Court, Cuttack\n         The 19th December ,2009\/Routray\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-121290","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nBiranchi Narayan Sahoo vs State Of Orissa on 19 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/biranchi-narayan-sahoo-vs-state-of-orissa-on-19-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Biranchi Narayan Sahoo vs State Of Orissa on 19 December, 2009 - 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