The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA NO.116 of 1994 (In the matter of application under Section 374(2) of the Criminal Procedure Code, 1973.). Rukman Bag and Another …. Appellants -versus- State of Orissa …. Respondent For Appellants : Mr. B.K. Nayak, Advocate For Respondent : Mr. P.K. Pattnaik, AGA CORAM: JUSTICE G. SATAPATHY DATE OF JUDGMENT:14.08.2023 G. Satapathy, J. 1. An appeal by way of an application U/S.374(2) of the Code of Criminal Procedure, 1973 (in short the “Code”) seeks to challenge the judgment of conviction and order of sentence passed on 15.03.1994 by the learned Additional Sessions Judge, Titilagarh in Sessions Case No.17/7 of 1994 CRA No.116 of 1994 Page 1 of 15 convicting the appellants for commission of offence punishable U/S.325 with the aid of Section 34 of Indian Penal Code (in short the “IPC”) and sentencing each of them to undergo Rigorous Imprisonment (R.I.) for 3 years and to pay a fine of Rs.500/- (Rupees Five Hundred), in default whereof to undergo R.I. for a further period of 3 months. 2. The prosecution case arises out of Turekela
Legal Reasoning
Police Station FIR No.25 dated 13.09.1993 lodged by one Purushottam Mahapatra (PW1) stating therein that while he was coming to Badatukula to attend his duty on 13.09.1993 in the morning, on his way, he found some persons of village Badatukula carrying forest guard Debarchan Sabar(PW7) on a bullock cart with injuries on his waist, back, nose, mouth and blood was oozing out of the wound as well as there was swelling on his leg and one tooth in upper jaw was broken and on being asked, PW7 disclosed that he along with appellant No.1(A1) had been to duty on CRA No.116 of 1994 Page 2 of 15 the previous day at about 10 A.M. in the morning, but when they were returning in the evening, A1 picked up quarrel with him and returned ahead of him alone, and A1 and his brother (A2) along with two others were waiting near the tank of their village Burlaguda and on seeing PW7 coming, they restrained, abused and assaulted him by means of cudgel and axe, as a result, while he was running away, fell down near the water channel and on regaining sense, he found some persons of Burlaguda and they shifted him to Badtukula village. After hearing this, PW1, Lalmohan Dharua(PW3) of village Badtukula and some others shifted PW7 to Thurekela and PW1 lodged this FIR. 3. On this FIR, the investigation commenced by PW8, OIC, Thurekela P.S., who after arresting and forwarded the appellants to the Court and on completion of investigation, a charge-sheet was submitted against the appellants for commission of offence U/Ss.341/333/294 with aid of Section 34 of CRA No.116 of 1994 Page 3 of 15 IPC, which ultimately resulted in trial of the appellants for having charged for the aforesaid offences U/Ss.341/333/34 of IPC. 4. In support of its case, the prosecution examined 8 witnesses in all and relied upon the documents under Ext.1 to 8 and material objects under MO-I to VI as against no evidence whatsoever by the defence in support of its plea of complete denial and false implication. 5. After appreciating the evidence on record upon hearing the parties, the learned Additional Sessions Judge, Titilagarh by way of the impugned judgment convicted the appellants and sentenced them to the punishment indicated (supra) by mainly relying upon the evidence of injured witness (PW7) and the medical evidence of the Doctor (PW6). 6.
Legal Reasoning
In the course of hearing of the appeal, Mr. B.K. Nayak, learned counsel for the appellants has submitted that the prosecution had withheld material CRA No.116 of 1994 Page 4 of 15 witnesses like Pitabasa Majhi with whom the injured and A1 had taken liquor and the medical evidence clearly disclosed that the injuries were possible by fall on hard and blunt of surface and when the evidence of injured witnesses are considered in the background of aforesaid fact of taking liquor and falling on the ground, it itself gives rise to a picture that the injured had sustained injuries by fall on hard and blunt surface due to intoxication and the appellants had no role to play for the injuries sustained by the injured. It is further submitted by him that there were serious infirmities and contradictions in the evidence of injured witness, who being inimically disposed of, might have implicated the appellants in this case, but the learned trial Court had fallen in error in holding the appellants guilty of the offences. On these submissions, learned counsel for the appellants has prayed to allow the appeal by setting aside the impugned judgment of conviction and order of sentence as recorded against the appellants. CRA No.116 of 1994 Page 5 of 15 7. On the other hand, Mr. P.K. Pattnaik, learned AGA in repelling the above submissions, has submitted that the defence had failed to bring out a single material contradiction from the mouth of any of the witnesses and the evidence of injured witness having not being demolished in slightest way, which was inconformity with the evidence of the Doctor(PW6) for the injuries sustained by PW7, it cannot be said that the appeal merits consideration. Learned AGA, however, by taking this Court through the evidence of injured, informant and Doctor, has submitted that the impugned judgment does not suffer from any infirmity so as to warrant interference in this appeal and he, accordingly, has prayed to dismiss the appeal. 8. After bestowing an anxious and meticulous consideration to the rival submissions made upon perusal of the impugned judgment, there appears no difficulty in ascertaining that the learned trial Court CRA No.116 of 1994 Page 6 of 15 had convicted the appellants by mainly relying upon the evidence of PW1 and PW7 by referring and comparing with the medical evidence deposed to by PW6. Since the appellants were found convicted for offence U/S.325 of IPC for causing grievous hurt to the injured, the evidence of PW7 was pivotal and thereby, taken up first for appreciation and scrutiny by the learned trial Court. It is, therefore, considered imperative to examine the evidence of PW7 at the first instance. The testimony of PW7 transpired that on 12.09.1993 he and Rukman Bag(A1) while performing patrolling duty in Bandhanpali Reserve Forest, they found some ladies of that village collecting bamboo shoots and A1 accordingly chased them, but the injured PW7 restrained him not to chase the ladies and at this, A1 got annoyed. It further transpired from the evidence of PW7 that in the evening, when he was returning from Bandhanpali to Badtukula, near village Burlagudar, A1 and Madhaba Bag(A2) along with two others CRA No.116 of 1994 Page 7 of 15 assaulted him and A1 assaulted him by an axe, whereas A2 dealt blows by a lathi (MO VI) and he sustained bleeding injuries on his left leg, left eye and back and after assault, they ran away from the spot and he fell down nearby water channel and in the morning, he regained sense and was found shifted to CHC Kantabanji. It was his further evidence that on the way, he met his colleague PW1 who ascertained from him about the incident and lodged a FIR before PW8 the OIC Turekela P.S. vide Ext.1. 9. Admittedly, PW1 is a post occurrence witness, but he had clearly spelt out his role in the evidence by testifying in the Court to have lodged Ext.1 after ascertaining from PW7. PWs.1 and 7 had been thoroughly cross-examined by the defence, but nothing substantial was elicited from their mouth to discredit/disbelieve their evidence. It is, however, argued for the appellants that A1 and PW7 had taken liquor before the incident and there was quarrel CRA No.116 of 1994 Page 8 of 15 between them, but it was never clarified as to when they took liquor and when there was a quarrel between them for this. On the other hand, the evidence of PW1 could not be demolished, rather confirmed in his cross-examination with regard to his seeing the bleeding injuries on the left leg, right hand, left eye and on the face near the upper lip of PW7. The defence had also explained by eliciting from the mouth of PW1 that PW7 had narrated about the incident to him at his quarter. 10. The evidence of PW7 was amply corroborated by the medical evidence of doctor PW6 who testified in the Court to have found following injuries on PW7:- i. Lacertated wound-1” x 1/2” x 1/4” over left side of tibia. ii. Lacerated wound-over left ankle joint with swelling over leg size 1/2” x 1/4” x 1/4”. iii. Sub-conjective haemorrhage left eye. iv. Fracture-left fibula lower end. CRA No.116 of 1994 Page 9 of 15 PW6 had accordingly opined the injuries Nos. 1 to 3 to be simple in nature and injury No.4 to be grievous one and all the injuries could have been caused by hard and blunt weapon. PW6 accordingly proved the injury report of PW7 vide Ext.2. The defence had cross-examined PW6, but could only end of with eliciting that PW7 was treated as an indoor patient in the CHC. 11. PW7 not only stood firm to the searching cross-examination of defence in respect of appellants assaulting and injuring him, but he candidly admitted his inability to see the weapon wielded by appellants at the time of occurrence. It is, however, argued for the appellants that since the occurrence took place in the night, there was no occasion for the injured to see the assailants, but the appellants and injured being known to each other and there being quarrel between them prior to the occurrence on the same day, such plea advanced for the appellants could be CRA No.116 of 1994 Page 10 of 15 hardly believable. On the other hand, the learned trial Court on analysis and appreciation of evidence on record had clearly returned with a finding that act of the appellants were squarely falling within the ambit of Section 325 of IPC and convicted them thereunder. 12. After having scrutinized and reassessed the evidence on record on the face of the impugned judgment with the assistance of learned counsel for the parties, there appears no hesitation in the mind of Court to conclude that the prosecution had successfully established its case against the appellants for offence U/S.325 of the IPC and thereby, the learned trial Court had not committed any illegality in convicting the appellants for offence U/S.325/34 of IPC. Consequently, no ground is made out to interfere with the conviction of the appellants for offence U/S.325/34 of the IPC. 13. This Court, however, feels the necessity of examining the sentence awarded to the appellants in CRA No.116 of 1994 Page 11 of 15 the change circumstance of long lapse of time of thirty years. The object of punishment in India is neither punitive nor retributive, rather it is based on a mixed question of deterrent and reformative theory of punishment. Sentencing is an integral part of criminal justice dispensation system and criminal Court instead of discharging the function of sentencing in a mechanical manner, has to assign specific reason to decline the beneficial provision of law like probation and admonition in sentencing the convict to commensurate punishment fitting to the crime. The Court must have a humanistic approach and it must be sensitive to exercise its discretion. Sentencing is not a mere routine or mechanical act and the Court should collect all relevant materials necessary to award just punishment and for this purpose, the social background or personal character of wrong doer or offender are relevant consideration and in appropriate case, the sentencing Court should avoid sending the first offender to jail once again for CRA No.116 of 1994 Page 12 of 15 an offence risking of returning him to the harden criminal housed in jails and the first offender, who is entitled to the indulgence of beneficial provision of Probation of Offenders Act or Section 360 of Cr.P.C. on the score of his age, character or antecedent and the circumstance in which the offence was committed as well as motive behind crime, should not be withheld. 14. In the present case, the convicts had already remained in jail for twenty five days and they had been sentenced to imprisonment for three years, but no purpose would be served in sending them to jail once again after a lapse of thirty years, to revive the rancor and hostility between them. The learned trial Court was swayed away by the emotion for the victim while declining to extend the benefit of P.O. Act to the appellants, but no specific and cogent reasons had been assigned by it to refuse the benefit of P.O. Act to the appellants nor any relevant CRA No.116 of 1994 Page 13 of 15 materials such as social background or personal character or personal antecedent were collected. Additionally, the convicts were aged 28 years and 25 years at the relevant time of judgment and now they would be 58 and 55 years. No material has been brought to the notice of this Court that during this period, the convicts had indulged in any further criminal activities in any form or they are incorrigible. In the aforesaid situation, this Court considers it appropriate to extend the benefit of P.O. Act to the appellants instead of sentencing them at once. 15. In the result, the appeal stands dismissed on contest, but in the circumstance, there is no order as to costs. As a logical sequitur, the conviction of the appellants are maintained, but instead of sentencing them to suffer any punishment of imprisonment, it is directed that the appellants be released U/S.4 of the P.O. Act for a period of one year upon their entering into a bond of Rs.10,000/-(Rupees Ten Thousand) CRA No.116 of 1994 Page 14 of 15 each with one surety to appear and receive the sentence, when called upon during such period and in the meantime, to keep peace and be of good behavior. The appellants shall remain under the supervision of the concerned Probation Officer during the aforesaid period. The sentence is, accordingly, modified. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 14 th day of August, 2023/Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Jr.Stenographer Reason: Authentication Location: High Court of Orissa Date: 16-Aug-2023 10:58:41 CRA No.116 of 1994 Page 15 of 15