✦ High Court of India

Criminal Appeal No. 28 of 2003 · The High Court

Case Details

IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 39 of 2006 An application under Section 401 of the Code of Criminal Procedure challenging the judgment and order dated 23.09.2003 of the learned Sub- Divisional Judicial Magistrate, Birmaharajpur in G.R. Case No.79 of 2001 (T.R. No. 138 of 2001) and the judgment and order dated 08.12.2005 of the learned Addl. Sessions Judge, Sonepur in Criminal Appeal No. 28 of 2003. -------------- Nabina Sahu ..…. Petitioner -versus- State of Orissa …… Opp. Party --------------------------------------------------------------------------- For Petitioner : Mr. B.S. Dasparida, Adv. For Opp. Party ---------------------------------------------------------------------------- : Mr. M.R. Mishra, A.S.C. CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 18.03.2024 Savitri Ratho, J This revision under Section 401 of the Code of Criminal Procedure has been filed challenging the judgment and order dated 08.12.2005 passed by the learned Addl. Sessions Judge, Sonepur in Criminal Appeal No.28 of 2003 confirming the judgment passed by the learned S.D.J.M., Birmaharajpur in G.R. Case No.79 of 2001 (T.R. No. 138 of 2001) acquitting the petitioner from the CRLREV No. 39 of 2006 Page 1 of 13 charge under Sections 341, 332, 506, 34 of IPC and acquitting co- accused Pabitra Mohan Hata @ Mitu from all charges and convicting the petitioner for commission of the offence under Section 353 of IPC and sentencing him to undergo S.I. for two years. PROSECUTION CASE 2. The prosecution allegation in brief is that P.W.1 Khetra Bhoi, the home-guard posted as Birmarajpur Police Station, on 16.06.2001 at about 5.00 p.m., noticed a passenger bus “Pati Bus” parked on the road causing inconvenience to the public and the traffic. He asked the petitioner who was the driver of the bus and the conductor to move the vehicle ahead. The accused persons got down from the bus, caught hold the arms of P.W.1 and twisted them. The petitioner caught hold of P.W.1’s shirt collar dealt fist blows on him. Thereafter, the co-accused alighted from the bus and pushed the informant as a result of which he fell down. Both the accused persons removed and whistle of the informant and took

Legal Reasoning

away of cash of Rs.50/- from his pocket. P.W.1 lodged FIR at the police station on 16.06.2001 investigation was taken by the P.W.7 Biraj Chandra Sahi. After completion of investigation, he submitted charge sheet against the petitioner and co-accused CRLREV No. 39 of 2006 Page 2 of 13 Pabitra Mohan Hata @ Mitu for commission of offences punishable under Sections 341, 332, 553, 506, 34 of IPC and the petitioner and the co-accused faced trial for the said offences. DEFENCE PLEA 3. The plea of both the accused persons was one of false implication. DECISION OF TRIAL COURT 4. The learned S.D.J.M., Birmaharajpur framed three points for determination in this case and after careful examination of the evidence of the witnesses found that the offences under Sections 341, 332, 506 of IPC were not made out against any of the accused persons and as the informant did not implicate the co-accused Pabitra Mohan Hata @ Mitu, held that the offence under Section 353 of IPC was not made out against him and acquitted him from all the charges. It found that the evidence of the three occurrence witnesses to cogent, clear and trustworthy and sufficient to convict the petitioner for commission of the offence under Section 353 of IPC. It turned down the plea of false implication by holding that in the absence of any rivalry, previous grudge or enmity, there was no reason to doubt the evidence of the three occurrence witnesses. In view of the nature of the offence, the benefit of the Probation of CRLREV No. 39 of 2006 Page 3 of 13 Offender Act was not extended to the petitioner and he was sentenced to undergo S.I. for a period of two years under Section 353 of IPC. DECISION OF APPELLATE COURT 5. The learned Appellate Court held that the evidence of the informant as well as other witnesses, that the informant was assaulted while he was discharging public duty, has remained unshaken during their cross-examination and the discrepancies in

Legal Reasoning

their evidence were natural. It turned down the contention that the prosecution case should be disbelieved in the absence of documentary evidence that the informant and the witnesses were on duty, as the evidence of the informant, eye witnesses and the investigating officer were trustworthy. The learned Addl. Sessions Judge, Sonepur dealt with the contention of the petitioner that since the trial Court had acquitted him of the offences under Section 332 of IPC, his conviction under Section 353 of IPC was not legally sustainable, by holding that from the evidence adduced by the prosecution, it was apparent that the informant had been assaulted by the petitioner while he was discharging his duty. The appeal was dismissed and the conviction and order of sentence was confirmed. CRLREV No. 39 of 2006 Page 4 of 13 WITNESSES 6. During course of trial, in order to prove its case, the prosecution examined seven witnesses. P.W.1 Khetra Bhoi is the complainant. P.W.2 Jagadananda Jagadala, P.W.3 Brajamohan Jagdala and P.W.4 Nepal Haripal are the home guards. P.W.5 Hadibandhu Kuor is attached to Birmaharajpur Police Station. P.W.6 Sudam Pradhan is a beetle shop owner and P.W.7 Biral Ch. Sahis is the OIC of Rampur Police Station. 7. No witnesses have been examined on behalf of the defence. EXHIBITS 8. The prosecution exhibited two exhibits. Ext.1 is the FIR and Ext.2 is the seizure list. SUBMISSIONS 9. Mr. B.S. Dasparida, learned counsel for the petitioner challenges the impugned judgments on three grounds: (i) There is no documentary evidence on record that P.W.1 was working as a home-guard on the date of occurrence as the command certificate has not been proved. (ii) The case hinges on the evidence of official witnesses and only as the only independent witness P.W.6 Sudam Pradhan a CRLREV No. 39 of 2006 Page 5 of 13 nearby beetle shop owner did not support the prosecution case. In view of the nature of allegation against the petitioner, it is unsafe base his conviction on the evidence of only the official witnesses. (iii) The co-accused has been acquitted of all the charges and the petitioner has been acquitted of the offence under Section 332 of IPC whose ingredients are similar to Section 353 of IPC on the same set of evidence. (iv) The maximum sentence under the said Section has been awarded to the petitioner without citing any reason more so when there is no material on record that the petitioner has any criminal antecedent. (v) Alternate submission is that since almost 23 years have elapsed since the date of occurrence, even if the conviction of the petitioner under Section 353 of IPC is confirmed, sending him to custody now will amount to travesty of justice. The learned counsel for the petitioner relied on the decision of the Supreme Court in the case of Haribhau vs. State of Maharashtra reported in (2018) 18 SCC 43, in support of such submission. 10. Mr. M.R. Mishra, learned Addl. Standing Counsel for the State supports the impugned judgment and submits that the conviction of the petitioner under Section 353 of IPC and sentence CRLREV No. 39 of 2006 Page 6 of 13 of two years has been rightly awarded. He further submits that in view of the categorical evidence of P.W.7 that P.W.1 was working as a home-guard in the police station and as the seizure list of the command certificate has been exhibited as Ext.2, non-production of the command certificate in the Court cannot be taken to be fatal to the prosecution case. He further submits that since the evidence of P.Ws. 2 and 4 have corroborated the evidence of P.W.1 and there is no material on record or any suggestion that these witnesses where in any way inimically disposed against the petitioner, there is no reason why their evidence should not be relied on for convicting the petitioner. His final submission is that in view of the fact that the home-guard who was discharging his duty has been assaulted by the petitioner in the public place, the maximum sentence of two years has been rightly awarded by the Court below. EVIDENCE 11. In order to ascertain if the judgments of the of learned trial court and appellate court require any interference, it is necessary to peruse the evidence of the witnesses. P.W.1 Khetra Bhoi is the complainant who has stated that on 16.06.2001 in the capacity of home-guard he was CRLREV No. 39 of 2006 Page 7 of 13 performing duty at the main square of Birmaharajpur along with other home-guards Nepal Haripal and Jagadananda Haripal. That day he found a bus called “Pati Bus” was parked covering half of the road and he asked the accused driver of the bus named Nabina to park the bus properly. The accused driver got down from the bus, caught hold of his baton and manhandled him by punching him twice. So he lodged a report. P.W.2 Jagadananda Jagadala is a home-guard and he has stated that on 16.06.2001 he was working as homeguard at Birmaharajpur Police Station. At 5.00 p.m. he along with homeguards Nepal Haripal (P.W.4) and Khetra Bhoi (P.W.1) were doing traffic duty at the bus-stand square of Birmaharajpur. The accused Nabina had parked his bus in the middle of the road. When P.W.1 Khetra Bhoi asked him to take the bus to the side of the road, the accused got down from the bus and dealt three to four punches. Accused Mitu came there and joined accused Nabina. Accused Mitu caught hold of the shirt collar of Khetra Bhoi and manhandled him. Many people gathered there and P.W.2 and others had intervened. The I.O. has seized the command certificate issued to him for performing duty that day. CRLREV No. 39 of 2006 Page 8 of 13 P.W.3 Brajamohan Jagdala is a home-guard stated that while he was at the police station that day and the informant reported the matter and the OIC seized the command certificate and prepared seizure list. P.W.4 Nepal Haripal is a home-guard stated that he was performing his duty as a home-guard on 16.06.2001 along with the informant and Jagadananda Jagadala, home-guards. That day at about 4.00 to 5.00 p.m. while performing duty at the Birmaharajpur square the “Pati Bus” came there and the driver parked the bus almost covering the road. When the informant asked the driver to take the bus a little ahead, the driver got down from the bus and assaulted the informant by slaps. The conductor subsequently joined and assaulted the informant also. P.W.5 Hadibandhu Kuor is attached to Birmaharajpur Police Station stated that on 16.06.2001 he was attached to Birmaharajpur Police Station and that day the OIC had seized the command certificate of Jagadananda Jagadala and had prepared the seizure lists. P.W.6 Sudam Pradhan is a beetle shop owner. He did not support the prosecution case. CRLREV No. 39 of 2006 Page 9 of 13 P.W.7 Biral Ch. Sahis is the I.O. stated that on 16.06.2001 in the capacity of OIC, Birmaharajpur Police Station at about 5.40 p.m. he received the written report from the informant Khetra Bhoi and took up investigation after registering the case. During investigation he has examined the informant, visited the spot, examined the other material witnesses and seized command certificate No.40 of the informant and prepared seizure lists. ANALYSIS AND DISCUSSION 12. In order to appreciate the submission of the learned counsel, I have carefully perused the provisions of Section 332 and Section 353 of IPC, the impugned judgments, the depositions of the witnesses and the decisions in Haribhau (supra). Section 332 of IPC and Section 353 of IPC are extracted 13. below: “332. Voluntarily causing hurt to deter public servant from his duty.- Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either CRLREV No. 39 of 2006 Page 10 of 13 description for a term which may extend to three years, or with fine, or with both. 353. Assault or criminal force to deter public servant from discharge of his duty.- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 14. A reading of the aforesaid provision shows that the main ingredients of the offence under Section 353 IPC are that the accused should have assaulted a public servant or used criminal force with intent to prevent or deter the public servant from discharging his duty as such public servant. 15. The three homeguards – P.W.1, P.W.2 and P.W.4 have stated about the assault on P.W.1, but have not stated about the nature of injury sustained by him or any pain experienced by him, so as to make out an offence under Section – 332 of the IPC. As the informant was performing his duty as a homeguard and he was assaulted while doing so, the offence under Section – 353 IPC is CRLREV No. 39 of 2006 Page 11 of 13 attracted. As the three homeguards had no axe to grind with the petitioner, there was no reason for them to falsely implicate the petitioner. So there is no reason to discard their evidence. The conviction of the petitioner for commission of the offence under Section – 353 IPC is therefore confirmed. SENTENCE 16. In the case of Haribhau (supra), the conviction of the appellant for commission of offences under Sections 353, 294, 504 read with Section 34 of IPC had been upheld by the Supreme Court. The appellant had been sentenced to undergo R.I. for three months with fine of Rs.500/- for the offence under Sections 353/34 of IPC and to undergo rigorous imprisonment for one month with fine of Rs.200 under Sections 504/34 of IPC and to undergo rigorous imprisonment for one month with fine of Rs.100/- under Sections 294/34 of IPC with the direction for the sentences to run concurrently. The Supreme Court found that the petitioner had spent one month in custody and thereafter he has been released on bail. But considering the nature of offence committed by the appellant, his age (60 years) and his spotless career without any criminal antecedents, and as he had undergone jail sentence of one month and the offence was committed 13 years back, while CRLREV No. 39 of 2006 Page 12 of 13 upholding his conviction, the Supreme Court thought it fit to alter his sentence to the period already undergone and enhanced the fine awarded under different sections from Rs.800/- to Rs.1500/- which was directed to be paid to the complainant Bala Saheb Ingole. 17. In the present case, the records reveal that the petitioner had voluntarily surrendered on 20.06.2002 and has been released on bail on the same day. But considering the fact that the occurrence took place on 16.06.2001 when the petitioner was aged about 50 years and almost 23 years have elapsed in the meanwhile and he will be aged more than 70 years by now and as the nature of injury caused to the informant has not been proved, I think it would be in the interest of justice if the period of substantive sentence is modified to fine of Rs.1000/- (Rupees One thousand only) in default to undergo simple imprisonment for a period of three months. If the fine amount is realized, the same shall be paid to P.W.1 Khetra Bhoi. 18. With the said modification of the sentence, the CRLREV

Decision

is disposed of. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Jun-2024 21:12:38 Orissa High Court, Cuttack. The 18th March, 2024. S.K. Behera, Senior Stenographer. ……………………… (Savitri Ratho, J) CRLREV No. 39 of 2006 Page 13 of 13

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