The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 496 of 2001 Giridhari Behera, aged about 46 years, S/o. Gouranga Behera, At/P.O. Shyamsundarpur, P.S. Nilgiri, Dist- Balasore …. Petitioner Mr. Jitendra Kumar Naik, Advocate (Amicus Curiae) -versus- State of Odisha Opposite Party Mr. L. Samantaray, Addl. Government Advocate …. CORAM: HON’BLE THE CHIEF JUSTICE ORDER 25.09.2024 This matter is taken up through Hybrid mode. Order No. 17. 2. The present criminal revision application under Sections 397/401 of the Code of Criminal Procedure, 1973 (Cr.P.C.) has been filed on behalf of the petitioner putting to question a judgment dated 21.09.1998 passed by the learned S.D.J.M., Nilgiri in G.R. Case No.121 of 1993 (Trial No.219/93). 3. By the above judgment dated 21.09.1998 the petitioner has been convicted for the offence punishable under Sections 324 and 448 of the IPC and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.250/- for each of the offence and in default of fine amount, to undergo simple imprisonment for 15 day. The said judgment passed by the learned S.D.J.M., Nilgiri has
Legal Reasoning
been confirmed by the learned Additional Sessions Judge (Fast Track Court), Balasore by a judgment dated 30.05.2001 passed in Criminal Appeal No.60 of 1998. Page 1 of 5 4. In the present criminal revision filed under Section 397 and 401, Cr.P.C., the petitioner has put to challenge the abovementioned judgments passed by the learned S.D.J.M., Nilagiri dated 21.09.1998 and the learned Addl. Sessions Judge, Balesore dated 30.05.2001. 5.
Legal Reasoning
I have heard Mr. Jitendra Kumar Naik, learned Amicus Curiae for the petitioner and Mr. L. Samantaray, learned Additional Government Advocate for the State-opposite party. 6. The Secretary of the Weavers’ Cooperative Society, Nilgiri is the informant of the concerned P.W. Case No.83/93 disclosing commission of offence punishable under Sections 448, 341 and 506(ii) of the IPC. Upon completion of the investigation, charge sheet was submitted by the police whereupon cognizance was taken and charge for commission of offence punishable under Sections 448, 341, 324 and 506(ii) IPC was framed. The informant had alleged in the FIR that the petitioner had come to the Cooperative Society and had purchased 10 bundles of thread. After sometime he returned and alleged that instead of 10 bundles, only 9 bundles of thread were handed over to him. He caught hold of the informant and threatened to kill him. The petitioner caught hold of a table lamp lying there and assaulted him on his head which caused injuries in his head and nose. After the occurrence one Radheshyam Das (PW 3) and Jagabandhu Naik (PW 2) arrived and intervened, whereafter the accused had left the place. 7. The prosecution examined altogether four witnesses at the trial in support of the charge including the informant (PW 1) and the persons who had intervened as PWs 2 and 3. The I.O. was examined as PW 4. Page 2 of 5 8. The doctor, who had examined the informant and prepared the injury report, was examined as PW 5. Apart from oral evidence, the prosecution also brought on record the documentary evidence and materials exhibited in support of the charged framed against the petitioner. Defence also get examined four witnesses to make out a case that a false criminal case was instituted because of animosity. 9. Learned trial Court after having appreciated the evidence adduced at the trial recorded conviction for commission of offence punishable under Sections 324 and 448 of IPC. On the question of sentence, the learned S.D.J.M., declined to extend the benefit of provisions of Offenders Act and sentenced the petitioner to undergo imprisonment as has been noted above. The said finding has been affirmed by the appellate court as has been noticed above. 10. The appellate Court while upholding the judgment of conviction and the order of sentence observed that the learned Trial Court rightly declined to the benefit of the beneficial provision under the provisions of the Offenders Act, considering the gravity of offence. 11. Mr. Naik, learned Amicus Curiae has argued that the finding of conviction recorded by the learned S.D.J.M is not sustainable as PWs 2 and 3, who claim to be the eyewitness, were not present at the place of occurrence when the occurrence had started, which is evident from the first information report. They came later, according to the informant himself, as disclosed in the FIR, and therefore, their evidence deserves to be disbelieved. Page 3 of 5 12. He submits that in any view of the matter no offence under Section 448 of the IPC can be said to be made out, the place of occurrence being a public place, the petitioner’s presence at the place of occurrence does not fall within the meaning of house tress pass defined under Section 442 of the IPC punishable under Section 448 thereof. He has further argued that apparently, the occurrence, if any. had taken place at the spur of the moment out of sudden provocation. According to the prosecution case itself, the petitioner had initially purchased bundles of threads and thereafter had come back to the shop complaining supply of less amount than that was purchased. He submits that in any event, the present case falls under Section 334 of IPC. 13. Mr. L. Samantaray, learned Addl. Government Advocate has, however, submitted that the finding of conviction recorded by the trial Court does not suffer from any material illegality. This Court exercising power of revision under Section 397 may not re-appreciate the evidence. There being a concurrent finding of fact recorded by the Courts below, no interference is required as the findings cannot be said to be perverse. 14. I have gone through the impugned judgments of learned trial court and the appellate court. I have also perused the materials on record including the evidence adduced at the trial. 15. I find substance in the submission made by learned Amicus Curiae that since the place of occurrence according to the prosecution case is the informant’s shop, which is a public place, no offence punishable under Section 448 of IPC is made out. The petitioner deserves acquittal of the said charge on this ground alone. I also find Page 4 of 5 force in the submission in the given the circumstance, P.W.2 and P.W.3 cannot be treated to be eyewitnesses as they reached the place after the occurrence had started. Further, since the occurrence took place at the spur of the moment consequent upon an altercation over a petty issue, the petitioner’s conviction for the offence under Section 324 of IPC based on the testimony of the informant can’t be sustained. The petitioner deserves to be given benefit of doubt and he stands acquitted of the charges. 16.
Decision
The criminal revision is allowed. The impugned order is set aside, accordingly. 17. The petitioner stands discharged of the liabilities of bail bonds/sureties in connection with the aforesaid case. Chief Justice (Chakradhari Sharan Singh) SK Jena/Secy. Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 23-Oct-2024 16:27:23 Page 5 of 5