The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 118 of 1993 (An appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction passed by learned Additional Sessions Judge, Balangir in Sessions Case No. 85/37 of 1992) --------------- AFR Mahabir Prasad Agarwal ...… Appellant -Versus- State of Odisha ...... Respondent Advocate(s) appeared in this case: _______________________________________________________ For Appellant
Legal Reasoning
: Mr. B.K. Swain, Advocate. For Respondent : Mr. N. Pratap, Addl. Standing Counsel _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 3rd May, 2023 The appellant in the present appeal questions the correctness of the judgment of conviction and sentence passed by learned Additional Sessions Judge, Balangir on 31.03.1993 in Sessions Case No. 85/37 of 1992 whereby he was convicted for the offence under Sections 355 and 427 of Page 1 of 7 IPC and sentenced to undergo R.I. for 6 months on each count. Both the sentences as above were directed to run concurrently. 2. The prosecution case, briefly stated, is that on 15.09.1990 while the Sub-Collector–in-charge of Birmaharajpur, Bipin Bihari Jena and his staff were proceeding in a Government Jeep to meet the Collector at Balangir to discuss the law and order situation, they could not cross the river at Ullunda as it was in spate. While returning to Birmaharajpur, the local MLA, R.N. Panigrahi and his followers detained the Jeep near bus stand of Ullunda by keeping motorcycles on the road. Thereafter, the culprits abused the Sub-Collector and the present accused- appellant, Mahabir Prasad Agarwal used abusive words, caught hold of his neck and dragged him by holding the collar of his shirt. He also gave fist blows. The accused is said to have asked as to why the Sub-Collector had not appointed him as Storage Agent and had checked his paddy and rice loaded vehicles. The MLA was instigating his followers to assault the informant. Other persons, namely, Mahendra Singh and Ram Parosh Singh also arrived at the spot to Page 2 of 7 assault the Sub-Collector. The Sub-Collector thereafter lodged the FIR on 16.09.1990 before the Sindhol Police Station, leading to registration of Sindhol P.S. Case No. 19(1) of 1990 under Sections 143/342/323/353/427/355/294/ 506/149 of IPC and Section 7 of the Criminal Law Amendment Act. Investigation was conducted and on completion thereof, charge sheet was submitted against the accused persons for the aforementioned offences including the offence under Section 307 of IPC. 3. All the accused persons including the present appellant took the plea of denial. 4. To prove its case, prosecution examined 10 witnesses, out of whom P.W.-9 is the informant and P.W.-1 is one of the injured persons. P.W.-2 is a staff of the Sub- Collector’s office. P.W.-3 is a Junior Clerk. P.W.-4 is an independent witness. P.W.-5 is a Senior Clerk. P.W.-6 is a Constable. P.W.-7 is also a Constable. P.W.-8 is the doctor, who had examined the informant after the occurrence and P.W.-10 is the I.O. That apart, prosecution also proved six documents from its side and one material object. Page 3 of 7 5. After appreciating the evidence on record, the trial Court found that the charge against all the accused persons except the present appellant was not established and therefore, the said accused persons were acquitted. However, the trial Court found ample evidence to hold the appellant guilty and therefore, convicted him under Sections 355 and 427 IPC and sentenced him as aforesaid. 6. Heard Mr. B.K. Swain, learned counsel appearing for the appellant and Mr. N. Pratap, learned counsel for the State. 7. Mr. Swain assails the findings of the trial Court by submitting that the prosecution story as laid is completely at variance from the evidence of the informant, who is also an injured. He further submits that there is no corroboration whatsoever to the version of the informant. That apart, the other witnesses have attempted to exaggerate the prosecution story but when the informant himself does not support the same, such evidence could not have been relied upon by the trial Court. 8. Per contra, Mr. N. Pratap has argued that there is clear evidence that the accused-appellant was present at Page 4 of 7 the spot and misbehaved with the informant. The informant has also clearly deposed that the appellant caught hold of the collar of his shirt and also threatened him with the lighted end of his cigarette. According to Mr. Pratap, the impugned order of conviction and sentence does not warrant any interference. 9. Reading of the deposition of the informant, P.W.- 9 reveals that according to him, the accused-Mahabir Prasad Agarwal was present at the spot and ‘misbehaved’ him and also caught the collar of his shirt. Be it noted that his statement that the accused brought a burning cigarette and pointed the same towards his eyes has been proved to be a contradiction in view of the admission by the I.O. (P.W.-10) that he had not stated so before him during investigation. Therefore, the only thing, that is, available in the evidence of P.W.-9 is the alleged misbehaviour by the accused of the informant and of catching the collar of his shirt. Firstly, the word ‘misbehaved’ has been stated in too broad and general terms to have any definite meaning. In other words, the witness has not clearly stated as to what kind of misbehaviour the accused indulged in. As regards catching Page 5 of 7 of the collar of the shirt, it cannot be treated as an act done with any criminal intention. Coming to the evidence of P.W.- 1, he has not whispered a word about the accused. In fact, he has not even named the accused, so also the other witnesses P.W.-2, 3, 4, 5 and 6. There is, of course, the evidence of the doctor to the effect that the informant had sustained three abrasions on his right forearm, back and the forehead and that all were simple in nature. While the presence of injuries can be the result of assault, yet when the injured witness himself does not implicate the accused as having caused the assault he cannot be held liable for such injuries. 10. Reading of the impugned judgment reveals that the Court below has apparently lost sight of these vital aspects and has ignored the oral evidence, which is direct evidence of the occurrence and chose to place undue weightage on the medical evidence. Obviously, the medical evidence, without the support of ocular evidence on the facts and circumstances of the present case, can have no meaning. It must also be considered that as many as 14 persons were charge sheeted and tried including the present appellant, though 13 of them have been acquitted, yet the possibility Page 6 of 7 that any one of the persons comprising the mob may have caused the injuries found on the injured cannot entirely be ruled out. 11. In such view of the matter, this Court finds that the reasoning adopted by the trial Court to hold the accused guilty cannot be sustained. 12. In the result, the appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellant being on bail, his bail bonds be discharged. ………..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 3rd May, 2023/ A.K. Rana, P.A. AJAYA KUMAR RANA Digitally signed by AJAYA KUMAR RANA Date: 2023.05.04 17:41:41 +05'30' Page 7 of 7