Criminal Appeal No. 05 of 2007 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.273 OF 2014 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Kshirod Kumar Das and another ……. Petitioners -Versus- State of Odisha ……. Opposite Party For the Petitioners : Mr. Bhabani Shankar Das, Advocate For the Opp. Party : Mr. B. K. Ragada, Additional Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 14.08.2024 : Date of Judgment: 29.10.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 read with Section 397 of the Cr.P.C. is directed against the judgment and order dated 24.03.2013 passed by the learned Sessions Judge, Kendrapara in Criminal Appeal No.05 of 2007, whereby the judgment of conviction and order of sentence dated 21.03.2007 passed by the learned Assistant Sessions Judge, Kendrapara in S.T. Case No.84/660 of 2004 against the
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present petitioners has been confirmed. 2. The prosecution case in brief is that, on 25.01.2001, at about 7:00
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P.M., while the informant, Smt. Ratnamala Das, was cooking in her kitchen, the accused persons arrived there and abused her in filthy and obscene language while vandalizing her household articles. Upon her protest, the accused persons entered into the kitchen and assaulted her as well as her three-year-old son by dealing fist blows, kicks and slaps to them. Subsequently, when she raised hullah, her husband, Pitambara Das, came to the spot and intervened. The accused-Petitioner No.1, Kshirod Das, by means of a crowbar, dealt a blow aiming at the head of the husband of the informant, intending to kill him. However, the crowbar struck the left ear of Pitambara Das causing a bleeding injury. Out of fear and in order to save his life, the victim entered the house of one Kanduri Das, however the accused-petitioners dragged him out of there and assaulted him further. The accused-Petitioner No.1 assaulted him by means of a crowbar, whereas the accused-Petitioner No.2 assaulted him by means of a katuri. The other accused persons, who were spectating the Page 2 of 12 scene, threatened to kill the informant’s husband. The matter was finally settled upon the intervention of the nearby villagers, after which the informant’s brother-in-law, Susanta, shifted the victim to the hospital for treatment. Being aggrieved by this incident, the informant lodged an F.I.R. at the Police Station. After the completion of the investigation, the charge sheet was submitted and the Court below framed the charges against the accused persons for the offences punishable under Sections 448/354/323/294/307/34 of the IPC. 3. The prosecution examined a total of 8 witnesses and exhibited 3 documents in order to substantiate the charges against the accused persons. The plea of the defence was that of complete denial and false implication, but no evidence were adduced by the defence in proof of its plea. Out of the 8 witnesses examined by the prosecution, P.Ws.1 to 4 are the material witnesses to the occurrence, whereas, P.W.5 was the informant, P.W.6 was the injured victim, Pitambar Das, who is the husband of the informant. P.W.7 was the I.O. in the present case, whereas, P.W.8 was the doctor at Marsaghai Hospital, who examined the injured after the incident. However, during the course of the trial, all the Page 3 of 12 material witnesses in the present case, i.e., P.Ws.1 to 4, refused to support the case of the prosecution and had, therefore, been declared hostile. 4. After analyzing the entire evidence on record, the learned trial court acquitted the accused-petitioners of the offences punishable U/s. 448/354/323/294/34 of the IPC but found them guilty of the offences punishable U/s.307/34 of the IPC and convicted them thereunder. The learned trial court sentenced both the accused-petitioners to undergo R.I for five years each and to pay a fine of Rs.1,000/- (one thousand) each, in default, to undergo further R.I for six months. 5. Being aggrieved, the accused-petitioners challenged the judgment and order of conviction and sentence in appeal before the learned Sessions Judge, Kendrapara in Criminal Appeal No.05 of 2007. 6. The Appellate Court appreciated the entire evidence on record and after a careful evaluation of the same, dismissed the appeal filed by the accused persons while returning the following findings: “22. In the instant case, as per the medical report marked as Ext.3/2 the injuries sustained on the parietal region of the left scalp and on the upper part of the neck, the patient was referred to Neurosurgery Department of SCB Medical College & Hospital, Cuttack and the Medical Officer reserved the opinion. These injuries are on the vital part of the body and the same were sufficient to cause the death of the victim. Page 4 of 12 So considering the nature of the weapon used i.e. crow-bar and katari, the expressed intention of the accused, the nature of injuries, severity and persistence of the blows given, I am convinced that this is a fit case where conviction can lie u/s. 307 IPC. 23. So after a careful consideration of the evidence adduced on behalf of the prosecution, I am convinced that the learned Assistant Sessions Judge, Kendrapara has committed no error in convicting the accused persons u/s 307 IPC and sentencing them to undergo R.I. for five years and to pay a fine of Rs.1,000/- each and in default to undergo further R.I. of six months.” 7. Having failed in their appeal, the petitioners have filed the present Revision Petition assailing the judgment of conviction and order of sentence passed by both the Courts below. 8. Heard Mr. Bhabani Shankar Das, learned counsel for the petitioners and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 9. I have gone through the evidence on record and analyzed the judgments of the Courts below. To begin with, it is seen that, the informant (P.W.5) has given contradictory statements in the FIR and in her statement under Section 161 of the Cr.P.C. Again in the FIR, the informant had stated that the present petitioners pulled her and dealt fist blows and kicks to her. Whereas, the informant, in her evidence before Page 5 of 12 the Court, stated that the petitioners pulled her saree and disrobed her. This claim of the informant was not supported by any of the other witnesses in the present case. Moreover, the allegation of abuse being hurled to the informant by the accused-petitioners in obscene languages was also not supported by any of the witnesses in the present case. Furthermore, the accused-petitioners are the brothers of the husband of the informant (P.W.6), and they jointly owned the ancestral property where the informant and her husband resided. In this view of the matter, the accused-petitioners cannot be said to have committed trespass. Thus, I concur with the view of the Courts below insofar the conclusion on that the charges against the petitioners for the offences under Sections 354/294/323/448 of the IPC are not made out. 10. Coming to the offence under Section 307 of the IPC, there must be an intent of the accused to cause death of the victim and such intent should be coupled with an overt act. The nature of the actions of the accused, the nature of the weapon used and the injury caused on the body of the victim is crucial to ascertain the intention of the accused required for conviction under Section 307 of the IPC. In the present case, it is clear Page 6 of 12 from the testimonies of P.Ws.5 and 6 that the accused-petitioners used a crowbar and a katari to assault the victim (P.W.6) on his head. Perusal of the Medical Report of P.W.8 marked as Ext.3 shows that the victim (P.W.6) sustained two injuries as under : (i) One lacerated bleeding injury with coloured blood clot, margins were irregular vertically placed on the scalp of the left parietal region of size 1” x ¼” x 1”. (ii) One abrasion with red coloured blood clots obliquely placed on upper part of the neck on interior aspect of size ¾” x ¼”. The medical evidence shows that the accused-petitioners had struck the head of the injured victim which is a vital part of the body and had the victim not moved away at the time of the assault, the crowbar and the katari of the accused would have struck the head of the victim instead of his neck, which is capable of causing death. 11. The counsel for the petitioners has submitted that, as per the medical opinion of P.W.8, the injuries sustained by the victim may have been caused by hard and blunt objects, but one of the injuries so sustained was simple in nature and not grievous so as to be capable of causing Page 7 of 12 death of the injured. However, I am of the view that the simple nature of the injury caused by the nature of the weapon used and the expressed intention of the accused to aiming to strike on the head of the victim cannot be ignored. It is further relevant to note that the relation between the accused-petitioners and the injured victim, who were brothers, was not good at the time of the incident owing to the filing of a civil suit by the injured victim in the Court of the learned Civil Judge (Sr. Division), Kendrapara for partition of their ancestral homestead. In this regard, it would be relevant to rely upon the judgment of the Hon’ble Supreme Court in the case of State of Maharashtra v. Balram Bama Patil, reported in (1983) 2 SCC 28, where the Hon’ble Court has held that the injury inflicted by the accused persons need not necessarily be capable of causing death of the injured but that the intention of the accused can be ascertained from other factors present in the case without any reference being given to the actual wounds of the victim. Relevant paragraph 9 of the said judgment is reproduced hereunder: “9. Shri Rana appearing for the State strenuously contended that the High Court has committed a grave error in holding that the offence under Section 307 IPC was not made out merely because the injuries Page 8 of 12 inflicted on the witnesses were in the nature of a simple hurt and in these circumstances it is not possible to hold any of the accused persons guilty in respect of that offence. We find considerable force in this contention. A bare perusal of Section 307 IPC would show that the reasons given by the High Court for acquitting the accused of the offence under Section 307 were not tenable. Section 307 IPC reads: "Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned." To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.” 12. The perusal of the evidence of P.W.5, in this regard, shows that the accused-petitioners aimed to give blow by the crowbar and the katari on the head of the victim which caused a bleeding injury on his left ear. The medical report, as stated above, showed that the victim sustained an Page 9 of 12 injury on the scalp of his left parietal region. In this view of the matter, it is pertinent to note that the minor discrepancies in the medical evidence and the ocular evidence cannot destroy the case of the prosecution. This view of this Court has been squarely covered by the judgment of the Hon’ble Supreme Court in the case of Kamaljit Singh v. State of Punjab, reported in (2003) 12 SCC 155, the relevant paragraph 8 of which reads as under: “8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. (See Solanki Chimanbhai Ukabhai v. State of Gujarat.) The position was illuminatingly and exhaustively reiterated in State of U.P. v. Krishna Gopal. When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court cannot its well- merited interference.” this case be fault with found for in Thus, this Court is of view that the Courts below have rightly cited such inconsistency between the medical and the ocular evidence to be a minor discrepancy not fatal to the case of the prosecution and rightly found the petitioners guilty of the offences. Page 10 of 12 13. Therefore, I find no reason to disagree with the findings recorded by the learned Courts below regarding the commission of the offence under Sections 307/34 of the IPC by the accused-petitioners and hence, I confirm the conviction recorded by the learned trial Court and the learned Appellate Court against the petitioners for the aforesaid offences. 14. At this stage, Mr. Das, learned counsel for the petitioners submits that the petitioners had already undergone custody for substantial period. He submits that the incident had taken place in the year 2001 and at that point in time, the Petitioner No.1 was a young man of about 33 years, whereas Petitioner No.2 was aged about 38 years. He further submitted that the petitioners are daily-wage labourers and the sole earning members of their family. Moreover, by now, the injured victim and the informant have already settled in their life. Therefore, at this belated stage, sending the accused-petitioners to undergo further custody would be harsh. Hence, he seeks leniency. 15. Regard being had to the fact that the incident had taken place in the year 2001 and the petitioners were very young at that point of time and Page 11 of 12 that about 23 years have already lapsed in between, the petitioners deserves a lenient view insofar as the punishment is concerned. 16. Therefore, the sentence of R.I. for five years awarded by the Courts below stands modified to that of the sentence of R.I. for one year. The period of custody already undergone shall be set off. However, I am not inclined to modify the fine amount imposed on the petitioners by the learned Court below. 17. With the aforesaid observation, the CRLREV is disposed of as partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 29th October, 2024/Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Designation: Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Nov-2024 10:01:49 Page 12 of 12