The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 29 of 1995 (An application under Sub-Section (2) of Section 374, read with Section 382, Criminal Procedure Code, 1973) --------------- AFR Dinabandhu Lenka & Another ...… Appellants -Versus- State of Odisha ...... Respondent Advocate(s) appeared in this case:- _______________________________________________________ For Appellants : M/S. D.P.Dhal, A.K.Acharya, D.K.Das, B.R. Panda Advocates. For Respondent
Legal Reasoning
: Mr. R.N.MIshra-II _______________________________________________________ CORAM: Additional Government Advocate JUSTICE SASHIKANTA MISHRA JUDGMENT 4th April, 2023 SASHIKANTA MISHRA, J. The appellant questions the correctness of the judgment of conviction and sentence passed on 07.01.1995 by learned Additional Sessions Judge, Bolangir in S.T. Case No. 32/190 of 1993 whereby he was convicted for the offence under Section 332 IPC and sentenced to undergo R.I. for 8 months and to pay fine of Rs. 500/-, in default, to undergo further R.I. for one month. Be it noted Page 1 of 8 here that the appeal was originally filed by two appellants including the present appellant and one Ramakanta Biswal but, during pendency of the appeal, the said Ramakanta Biswal having expired his appeal has abated. 3. Prosecution case, briefly stated, is that on 27.03.1993 the informant Swapna Ranjan Mohapatra, S.I. of Soro police station, along with APR personnel consisting of one Havildar, one Naik and eight other armed constables were on duty and had gone to apprehend the culprits in another case in the police jeep. While performing duty as such near Sabira Railway Passenger Halt Platform, they saw some persons dragging and manhandling a man named Rabindra Sial on the railway platform. The deceased appellant, Ramakanta Biswal was one of the culprits named in the FIR. When the informant and his staff intervened, the culprits assaulted then by lathis, iron rod and knife etc. They were assisted by 15-20 other persons who rushed to the spot at that time. The informant identified the deceased appellant Ramakanta Biswal who assaulted him from the back with an iron rod. Accused Debendra also dealt a lathi blow from his back side. The other personnel were also assaulted. The Page 2 of 8 informant and others sustained bleeding injuries. On his return to the police station, the informant lodged the FIR on the basis of which Soro P.S. Case No. 81 of 1993 was registered under Sections 395/397/332 IPC followed by investigation. After completion of investigation charge-sheet was submitted against them also under aforementioned sections. 4. The accused persons took the plea of denial. 5. To prove its case, prosecution examined 13 witnesses including the informant as P.W. 1 and other members of the police party. P.W. 9 is the person who was allegedly man handled by the accused persons at the spot. P.W. 12 is the Doctor who examined the injured persons and P.W.13 is the Investigating Officer. Besides, prosecution proved 14 documents and 3 material objects. Defence did not adduce any evidence, either oral or documentary. 6. After appreciating the evidence on record and mainly placing reliance on the evidence of P.W.1, 2, 3 and 11, the trial court held that the offence under Section 395 is not proved but there is clear evidence of commission of the offence under Section 332 by the accused persons. On such Page 3 of 8 finding the accused persons were convicted and sentenced as already stated hereinbefore. 7. Heard, Mr. B.S.Das Parida, learned counsel for the appellant and Mr. S.N.Das, learned Additional Standing counsel. 8. Assailing the findings of the trial court Mr. Das Parida contends that no Test Identification Parade being conducted in the case and the accused persons identified being identified for the first time by the witnesses in the Court, the order of conviction based on such testimony becomes vulnerable. He further contends that the prosecution case as laid is patently unbelievable in view of the fact that P.W.9, for whose rescue the entire incident is said to have occurred, turned hostile. Alternatively it is contended by Mr. Das Parida that the incident took place nearly 30 years back and the accused appellant has spent more than the period of sentence of imprisonment during trial. Therefore, a lenient view should be taken in the matter of sentence. 9. Mr. S.N.Das on the other hand, submits that there is clear evidence of the commission of the offence inasmuch as the informant P.W. 1 deposed about the occurrence giving Page 4 of 8 vivid details thereof and nothing substantial was elicited from him in cross-examination to disbelieve his sworn testimony. He further submits that there being no evidence of any prior enmity between the informant and the accused there is no reason as to why he would depose falsely only to implicate them in the case. As regards the sentence imposed, Mr. Das, submits that having regard to the nature of the offence that is, assault on police officer while on duty, no leniency should be shown to the accused. 10. A perusal of evidence of the informant P.W.1 reveals that, apart from fully corroborating the FIR story he clearly deposed that while an attempt was being made to rescue Rabindra Sial who was being assaulted by the accused persons, he (informant) was assaulted on his head from the back side and on turning around he saw accused Ramakanta Biswal (deceased appellant) holding an iron rod who then dealt a blow to his back with that iron rod. He further deposed that then accused Dinabandhu Lenka (appellant) dealt a lathi blow to his back. He has further deposed about the specific overt acts of the other accused persons but the same is not relevant in the present context. This Court Page 5 of 8 further finds that P.W.1 was cross-examined extensively. Though he admits that there was doad-shedding in the platfrom at the time of occurrence yet he was acquainted with the accused whom he knew before the occurrence. Moreover, he specifically admitted that since the accused persons used to visit the Railway Station during night time he had been there to apprehend them. Thus, there is no reason to doubt his version that he had identified both the accused persons at the time of assault. The fact that he sustained injuries is proved through the Doctor examined as P.W.12 who proved the injury report marked Ext. 8. In his deposition he stated about the details of the injuries sustained by the informant and the other injured namely, Amba Prasad Singh. The injuries are consistent with the version of P.W.1 that the same were caused by a weapon used by the accused persons from the back. It has been argued that Rabindra Sial (P.W.9) did not support the prosecution case. What would be the effect of the above ? According to this Court, merely because P.W.9 turned hostile will not by itself demolish the case entirely in view of the other ocular and medical evidence establishing the Page 6 of 8 commission of the crime. It was further argued that since there was darkness and no TI parade was conducted, the identification by P.W. 1 of the accused persons in the Court could not have been relied upon by the trial Court. This Court is not impressed with such argument for the reason that P.W. 1 has not only named the accused persons in the FIR but also has deposed that he knew them before the occurrence as they used to visit the railway station. Moreover, this Court after going through the evidence of the witnesses does not find that the question of identity of the accused person was ever raised by the defence by making appropriate suggestions during cross examination. As it appears, such plea is being taken for the first time before this Court. 11. After going through the judgment passed by the trial Court, this Court finds that the evidence of P.Ws. 1,2, 3 and 11 have been relied upon along with the medical evidence on record. Having independently gone through the evidence of the aforementioned witnesses this Court no finds no reason to differ from the conclusions drawn by the trial court so as to be persuaded to interfere. Thus, this Court also finds that Page 7 of 8 the offence under Section 332 of IPC is clearly established from the evidence on record. 12. As regards the sentence, the accused was sentenced to Rigorous Imprisonment for eight months. Undoubtedly the occurrence took place nearly 30 years back. The accused was aged about 22 years at the relevant time and therefore, must be now aged about 52 years. Prosecution has not shown any criminal activity of the accused after the occurrence. Further, the accused has spent considerable time in prison during trial. Therefore, in the considered view of this Court, ends of justice would best be served if the sentence is modified to the period already under gone instead of directing the accused to serve the remaining part of his sentence at this belated stage. 13. In the result, the appeal is allowed in part. The impugned judgment of conviction is maintained. The sentence is however modified to the period already under gone. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, 4th April, 2023/ Deepak Page 8 of 8