Orissa High Court partly allowed the Criminal Appeal and sets aside the Conviction Order of the Sessions Court

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Orissa High Court, Dismissed Writ Petition, Natural Justice

In this present case of Prasad Bariha v. State of Orissa, the appellant Prasad Bariha faced trial in the Court of learned Session Judge, Bolangir, for the commission of offences punishable under Section 323[Punishment for voluntarily causing hurt]/ Section 506 [Punishment for Criminal Intimidation]/ Section 302 [Punishment for Murder] of the Indian Penal Code for murdering the appellant (hereinafter the deceased).

Brief facts of the Case

The prosecution case, as per the First Information Report on 27.01.2002 by prosecution witness 1 (P.W.1) before the officer-in-charge of Patnagarh police station is that on that day about 8:00 A.M., the deceased who was her younger son was guarding the cotton crop grown in the field with Giridhari Bariha (P.W.2).

At that point of time, the appellant Prasad Bariha came there and had some conversation with the deceased and all on a sudden, the appellant assaulted the deceased using a bamboo stick on his head and after the deceased fell on the ground, the appellant also assaulted on the chest of the deceased using a stone. P.W.2 ran away from the spot and came to the house of the deceased and intimated the occurrence.

It is the further prosecution case as per the F.I.R. that Budu Shah (P.W.3) and Seshadev Sahu (P.W.4) who were there at the spot, intervened while the occurrence was going on but they were also threatened by the appellant.

Based on the F.I.R. was lodged by P.W.1, the officer-in-charge registered the case for offences punishable under Sections 323/506/302 of the I.P.C, 1860. The I.O investigate into the matter, who during the course on the investigation, issued injury requisition for the deceased who was then in an injured condition, visited the spot and also sent a requisition for recording the dying declaration but the same could not be possible as the deceased was then in an unconscious state.

The appellant was taken into custody and sent for medical examination [under Section 53 of CrPC]. Thereafter, the body was sent for post mortem examination when the deceased died during his treatment and prepared his post mortem report. The statements of witnesses were recorded. The seized articles were sent for chemical analysis and ultimately on completion of the investigation, charge-sheet was submitted.

After submission, the case was tried by the Court of Session after observing due committal procedure where the learned Trial Court charged the appellant under Sections 323/506/302 of the I.P.C. on 20.03.2002 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the Session trial proceeding was resorted to prosecuted him and establish his guilt.

The aggrieved appellant filed an appeal before the High court of Orissa.

Arguments raised before the High Court

The Appellant’s Counsel contended that the eye witness i.e. P.W.2 is a child witness and no specific question has been put to him to conclude that he is a competent witness, his evidence should not be accepted. He further contended that the witness is lying and the evidence of witness should be discarded.

The Respondent’s counsel contended that as far as the child witness is concerned; Section 118 of the Indian Evidence Act states that a child is a competent witness, provided that he understands the questions put to him and is in a position to give rational answers to such questions.

The main issue/question crops up for consideration whether the offence within the purview of Section 302 of the Indian Penal Code or not.

High Court’s view upon this Issue

For the support in this issue, the HC viewed the case of State of Andhra Pradesh v. Rayavarapu Punnayya [AIR 1977], it is held as whenever a Court is confronted with the question whether the offence is ‘murder’ or ‘culpable homicide’. The question to be considered as, whether the accused has done an act by doing which he has caused the death of another.

In this present case, it appears that the occurrence happened all on a sudden when the appellant was passing through the cotton crop field and asked the deceased about the address of a particular village. When the deceased gave his reply, the appellant doubted that the deceased had given him a wrong answer and on account of that, all on a sudden in a fit of anger he assaulted the deceased.

There was no premeditation behind the commission of the crime. On perusal of the post mortem report and the evidence of the doctor, it appears that though the deceased had sustained four injuries none of the injuries has been opined to be sufficient in the ordinary course of nature to cause death.

So, the HC is of the view that the case would come within the purview of Section 304 Part-I of the I.P.C. and not under Section 302 of the I.P.C.

High Court’s final Judgment

Accordingly, the HC set aside the conviction of the appellant under Section 302 of the I.P.C. and instead the appellant is convicted under Section 304 Part-I of the I.P.C. and sentenced to undergo rigorous imprisonment for ten years.

It was also stated that the appellant had already remained in custody for 18 years since 2002 as he was not granted bail either during the trial or during the appeal. Given the sentence passed by the HC, the appellant shall be set at liberty.

Accordingly, the Criminal Appeal was allowed in part.


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