The Orissa High Court has confirmed the conviction and the ensuing life term imposed on a man for committing murder of his cousin-brother. While dismissing the appeal filed by the accused against his conviction, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik found no reason to interfere with the reasoned order of the Trial Court.
However, it was brought to the notice of the Court that during the pendency of the appeal, the Government of Odisha in exercise of the powers conferred by Section 432 of the Code of Criminal Procedure, 1973 remitted the unexpired portion of the sentence passed against the accused and ordered his premature release. Pursuant thereto, the appellant had already been set free.
Hence, the Court held that no further steps are required to be taken against the appellant and accordingly, disposed of the appeal.
On 23/24th April, 2005 around midnight, the accused is said to have assaulted the deceased, his cousin brother, with a sword, as a result of which the deceased sustained severe bleeding injuries and died on the spot.
Mr. Somanath Sahu, attached to the Karanjia Police Station (PS) (P.W.10) proceeded to the spot, took down the report of P.W. 1 (wife of the deceased), registered it as an FIR and took up the investigation. He then arrested the accused. While in custody, the accused offered to produce the sword used to murder the deceased and pursuant thereto, the sword was seized from a straw heap near the house of the deceased. A charge-sheet was filed. The accused denied the charge and claimed trial.
Ten numbers of witnesses were examined on behalf of the prosecution. P.W. 1 in her cross-examination stated that the accused assaulted her husband with the sword. She denied the suggestion that at the time of the incident the deceased was armed with an axe or that he tried to assault the accused with that axe or in the result of a tussle with the accused, the deceased had sustained injuries.
P.W. 2 (aunt of the accused) too stood firm in her cross-examination. While she said she was not able to see clearly in the night, she still did not deny that it was the accused who had murdered the deceased. As far as P.W. 3 was concerned, his version too could not be shaken in the cross-examination.
Accordingly, the Session Judge, Mayurbhanj convicted the accused-appellant for the offence punishable under Section 302 IPC for the murder of his cousin, Basanta Kumar Naik and sentenced him to life imprisonment and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment (RI) for three months. Against such conviction, the accused had filed the criminal appeal in the High Court.
The counsel for the appellant sought to build the case of the offence being one of culpable homicide not amounting to murder. Reliance was placed on the decisions of the Supreme Court in State of Himachal Pradesh v. Wazir Chand, (1978) 1 SCC 130; Ravi Kumar v. State of Punjab, (2005) 9 SCC 315; Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217; Pardeshiram v. State of Madhya Pradesh, (2021) 3 SCC 238 and Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635.
However, the Court distinguished all of the above cases from the case in hand and held no comparison could be made between them. Consequently, it was not persuaded that in the present case the offence should be converted to one punishable under Section 304 Part II IPC.
The Court found no error committed by the trial Court in convicting the appellant for the offence punishable under Section 302 IPC.
Case Title: Daku @ Dasarathi Dehury v. State of Odisha
Case No.: JCRLA No. 51 of 2007
Judgment Dated: 20th May 2022
Coram: Chief Justice Dr. S. Muralidhar & Justice Radha Krishna Pattanaik
Judgment Authored By: Chief Justice Dr. S. Muralidhar
Counsel for the Appellant: Mr. B. P. Das, Advocate
Counsel for the Respondent: Mr. A. P. Das, Additional Standing Counsel
Citation: 2022 LiveLaw (Ori) 78