The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.275 of 2014 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973). Kulamani Naik & another ……. Petitioners -Versus- State of Orissa ……. Opp. Party For the Petitioner : Mr. A.K Sahoo, Advocate
Legal Reasoning
For the Opp. Party : Mr. S.K. Mishra, Additional Standing Counsel. CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 24.07.2024 : : Date of Judgment: 29.10.2024 S.S. Mishra, J. The present Criminal Revision filed under Sections 401 & 397 of the Cr.P.C. is directed against the judgment and order dated 04.01.2014 passed by the learned Additional Sessions Judge, Angul in Criminal Appeal No.30 of 2005, whereby the judgment of conviction and order of sentence passed by the learned Assistant Sessions Judge, Athmallik dated 31.08.2005 in C.T.(S) Case No.13 of 2004 has been modified by partly allowing the appeal. 2. The petitioners were subjected to prosecution in Thakurgarh P.S Case No.31 of 2001 registered for alleged commission of offences punishable under Sections 307/294/34 of the IPC. 3. The prosecution case in brief is that on 14.05.2003, the accused persons belonging to village-Tentulipathar came to attend the marriage function of one Narottam Naik of village Khadagbahal. On that day, at about 12 noon, the injured Gadadhar and accused Kulamani quarreled with each other with regard to purchase of a hand saw. Thereafter, the accused Kulamani picked up a stone and threw at the son of the informant, Gadadhar, who fell down on the ground. The accused Puskar Naik, father of the accused Kulamani, brought a tangia and gave several blows on the head of the injured Gadadhar. The accused Budhu Naik also dealt tangia blows on the head of the injured Gadadhar and the accused Kanta assaulted the injured by a stone. After severe bleeding, the injured became senseless. Accused Budhu Naik took away the Page 2 of 7 tangia. All the accused persons fled from the spot. Thereafter, the informant along with others took the injured for treatment to the hospital. On the basis of such allegation, F.I.R. was lodged at Thakurgarh Police Station and after completion of investigation, charge sheet was submitted under Sections 307/34 of I.P.C. against the petitioners. 4. To bring home charges, the prosecution examined as many as nine witnesses and exhibited ten documents. The plea of defence is that of complete denial and false implication. In proof of their plea, defence examined two witnesses, i.e., D.W.1 & D.W.2. P.W.1 is the informant, P.W.2 is the wife of the brother of the injured, P.W.3 is the brother of the injured, P.W.5 is the injured himself, P.Ws.4, 6 & 8 are the independent witnesses to the occurrence, P.W.7 is the I.O. and P.W.9 is the Medical Officer. D.W.1 and D.W.2 are the independent witnesses examined on behalf of the accused persons. 5. The learned Assistant Sessions Judge, Athmallik analyzed the entire evidence on record, found the accused persons, namely, Kanta Naik and Budhu Naik not guilty of offences under Section 307 of the Page 3 of 7 IPC and acquitted them from the charges, but the present petitioners were found guilty of commission of offences punishable under Sections 307/34 of the I.P.C. and sentenced them to undergo R.I. for a period of three years and to pay a fine of Rs.1,000/- each, in default, to further undergo R.I. for a period of three months each. 6. The judgment of conviction and order of sentence dated 31.08.2005 passed by the learned Assistant Sessions Judge, Athmallik in C.T.(S) No.13 of 2004 was called in question by filing of Criminal Appeal No.30 of 2005 before the Court of learned Additional Sessions Judge, Angul by the petitioners. The learned Appellate Court vide its judgment and order dated 04.01.2014 has modified the conviction and sentence in the appeal, inter alia, stating as under: “9. On a conspectus of the finding arrived at in the impugned judgment it is found that the learned trial court found that the appellants had the intention to kill the victim and convicted them U/s.307/34 of the I.P.C. Evidence on record including that of the Medical Officer are clear pointer to the fact that the injured sustained multiplied incised wounds on different parts of his body which were attributable to use of sharp weapon identified under M.O-I. But nonetheless the injuries were simple and as the sequence of events goes, the assault followed an altercation and was without any pre-meditation and the assault was made under heat of passion. Thus the learned trial Court committed grave error in reaching the Page 4 of 7 conclusion that the appellants intended to kill the victim by dealing tangia blow on him as none of the vital parts of P.W.5 was subjected to injuries. Thus the conviction U/s.307/34 of the I.P.C. by the appellants and the consequent sentence of them need altered to that of one U/s. 324/34 of the I.P.C. and as a corollary the sentence imposed on the convicts need be modified. Hence, ordered.
Decision
The appeal is modified and the convicts are sentenced to undergo R.I. for one year U/s.324/34 of the I.P.C. instead of the sentence awarded to them U/s.307/34 of the I.P.C. Issue a modified warrant accordingly. With this modification of above sentence the criminal appeal stands disposed of.” 7. The petitioners have challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. 8. Heard Mr. A.K. Sahoo, learned counsel for the petitioners and Mr. S.K. Mishra, learned Additional Standing Counsel for the State. 9. P.Ws.4, 6 & 8 have resiled from their earlier version made before the I.O. The incident had taken place because of a hot altercation between the accused Kulamani and the injured (P.W.5). Thereafter, the accused persons brutally assaulted the injured P.W.5 by means of a tangia and stones causing multiple injuries on his person including head injury. The evidence brought on record by the prosecution, particularly, the testimony of P.W.5 and P.W.9 coupled with the evidence of Page 5 of 7 independent eye witnesses are unimpeachable and beyond any scope of doubt to be believed. The learned Courts below have rightly appreciated the evidence. 10. Therefore, I find no reason to interfere with the judgments of the Courts below in view of the unimpeachable evidence led by the prosecution to establish the case against the petitioners. However, I am of the considered view that sentencing the petitioners and sending them to custody shall serve no purpose at this belated stage. In my considered view, the trial Court ought to have extended the benefit of the Probation of Offenders Act to the petitioners in the facts of the present case, however, the same has been declined. The incident had taken place more than two decades ago, in the year, 2005. The learned trial Court although convicted the petitioners for the offence under Section 307 of the IPC, but vide the impugned order dated 04.01.2014, the conviction was modified to that of offence under Section 324 of the IPC as the injured sustained only simple injuries. The petitioners are first time offenders and there is nothing coming to force on record regarding any misuse of concession of bail granted to them during trial. All the petitioners are Page 6 of 7 settled in their life and moved on. In these circumstances, sending them to custody would serve no purpose, rather it would be very harsh on them and affect their family. 11. In view of the aforementioned, I direct that the petitioners be released under Section 4 of the Probation of Offenders Act, 1958 for a period of one year on their execution of a bond of Rs.5,000/- each with one surety each for the like amount to appear and receive the sentence when called upon during such period. During the probation period, the petitioners shall keep peace and maintain good behavior. The petitioners shall remain under the supervision of the concerned Probation Officer during the aforesaid period. 12. The CRLREV is accordingly partly allowed and disposed of. ……………… S.S. Mishra Judge The High Court of Orissa, Cuttack Dated the 29th of October, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Designation: Secretary Reason: Authentication Location: HIGH COURTOFORISSA,CUTTACK Date: 18-Nov-2024 12:07:05 Page 7 of 7