Brutal attack on a defenceless man, will not amount for leniency- Orissa High Court

With regard to the submission that none of the weapons seized by the Police was examined by any expert, it is to be stated that the same has hardly any consequential effect on prosecution case. This is not a case of circumstantial evidence. These were held by the High Court of Orissa through the learned bench of Justice B.P. Routray in the case Dara Singh @ Rabindra Kumar Pal v. State of Orissa (CRLA/556/2007)

The crux of the case is the deceased was demanded ‘Chanda’ (subscription) by the accused-Chema Ho and Dipu Behera along with some others in the the garment shop of the deceased. The deceased refused to pay. This resulted loud altercation of words and shouting. All of sudden, the Appellant emerged from Durga-Mandap side of the weekly market raising an axe (M.O.I) and approached towards the deceased. Seeing the appellant deceased started running out of panic. The Appellant chased him to a distance and dealt a blow by the axe on his back side. As the deceased fell down, the Appellant dealt further blows on him. Other accused persons also dealt blows. They dragged the deceased back to his shop, torched his body pouring kerosene, looted the shop and fled away. The informant-Mukunda Naik (P.W.1) is a Grama Rakhi. He was purchasing rice from another shop in the same weekly market during that time. While giving blows on the deceased, the Appellant could see the informant and shouted at him raising the axe towards him. The informant also ran away in panic. He went to Thakurmunda Police Station. On the way, he heard from others that the Appellant and others blazed the deceased and his temporary garment shop. He lodged the FIR then OIC of Thakurmunda P.S rushed to the spot with his team. Reaching at the spot, he found the deceased was lying half burnt in his shop. The Appellant was convicted under Section 302, I.P.C. based on the evidence of the eye-witnesses and other material evidence.

The Appellant submitted that the burn injuries seen on the dead body having not been explained by the prosecution, the same has a severe impact on the credibility of prosecution version. As stated earlier most of the prosecution witnesses have turned hostile. Neither P.W.1 nor P.W.16 nor any other witness saw the 2nd part of the assault because they ran away from the spot out of panic. Out of 8 injuries sustained by the deceased, only two are burn injuries. It is not the case that other six injuries are simple in nature without having any bearing on the cause of death. As per the prosecution case, P.W.1 has stated that he heard about the burning of the deceased and his shop while he was coming to the Police Station. Of course, this is not proved by material evidence. The FIR does mention about the burning. Therefore, learned counsel for the Appellant is not correct in his submission that the burn injuries are not explained by the prosecution. However, the same could not be proved on record with material evidence. However, it does not result in anything adverse so as to doubt the prosecution case. In particular, it does not create any doubt on the involvement of the Appellant in the assault of the deceased.

The learned bench of Justice B.P. Routray held that “the Appellant has already undergone more than 21 years inside the jail custody and considering his long custody, the punishment may be modified to such period undergone. There is no merit in the said submission. Keeping in view the nature of assault, the brutality associated therewith and the circumstances of the crime where no prior enmity existed, and the victim was unarmed and defenceless, there is no case made out for any leniency as far as the sentence is concerned.

As such, taking note of the prosecution case and considering the evidence adduced in its entirety, we do not find any extenuating circumstances in favor of the Appellant. The sentence awarded to the appellant is hereby affirmed.”

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Judgement reviewed by Himanshu Ranjan

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