Criminal Appeal No. 36 of 2011 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.49 of 2012 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Shyam Sundar Banua & Others ……. Petitioners -versus- State of Orissa ……. Opposite Party For the Petitioners : Mr. T.K. Mishra, Advocate For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate. CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 03.07.2024 : Date of Judgment:30 .07.2024 S.S. Mishra, J. The present Criminal Revision Petition filed under Section 401 read with Section 397 of Cr.P.C. is directed against the judgment dated 06.12.2011 passed by the learned Additional District & Sessions Judge-cum-Special Judge, Vigilance, Jeypore in Criminal Appeal No.36 of 2011, whereby the judgment of conviction and order of sentence dated 20.12.2008 passed by the learned S.D.J.M., Jeypore in G.R. Case No.220 of 2003 has been modified. 2. The prosecution case is that on 03.04.2003, the informant being accompanied by his co-villager Gonda and Deba Naik were collecting donations for Thakurani Jatra in their village. At about 7.30 P.M., the accused persons being armed with Thenga and Kati laid in wait to kill the informant and his friends. When both the parties met, the accused persons abused and assaulted them by chasing them in the village
Legal Reasoning
causing serious injuries. On the said allegation FIR was registered and chargesheet was also filed. After having framed the charges the petitioners were put to trial. 3. To substantiate the charges brought against the petitioners, the prosecution examined six witnesses and exhibited three documents. 4. The learned Trial Court analyzed the entire evidence on record and found the petitioners guilty of the offences punishable under Sections 323/325/34 of the IPC and convicted them thereunder and sentenced them to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- each, in default, to further undergo rigorous Page 2 of 10 imprisonment for one month for the offences under Sections 325/34 of the IPC and to undergo R.I. for a period of three months and to a pay a fine of Rs.500/- each in default to undergo further R.I. for one month for the offences under Section 323/34 of the IPC. Both the sentences were directed to run concurrently. 5. Against the judgment of conviction and order of sentence dated 20.12.2008 passed by the learned S.D.J.M, Jeypore in G.R. Case No.220 of 2003, the petitioners filed Criminal Appeal No.36 of 2011 before the Court of learned Additional District & Sessions Judge-cum-Special Judge (Vigilance), Jeypore. 6. The learned Appellate Court vide its judgment and order dated 06.12.2011 modified the sentence, while confirming the conviction. Therefore, the petitioners have assailed the appellate court’s judgment in this petition. 7.
Legal Reasoning
Heard Mr. T. K. Mishra, Ld. Counsel for petitioners and Mr. B.K. Ragada, AGA for State. 8. In the present case the prosecution examined six witnesses out of which P.Ws.1 & 2 were examined being the victim. P.W.1 was the Page 3 of 10 informant P.Ws.3 & 4 were the occurrence witnesses. P.W.5 was the Doctor, who examined the victims. P.W.6 was the I.O. of the case. The defence had taken a plea of alibi and they had examined two witnesses, i.e., D.W.1 & D.W.2. 9. The evidence of P.Ws.1 & 2 were impeccable. P.W.1 has reiterated the version reflected in the F.I.R. The other witnesses have landed corroboration to the evidence of P.Ws.1 & 2. P.W.1 had sustained simple injuries whereas P.W.2 sustained grievous injury as per the testimony of the Doctor (P.W.5). 10. The plea of alibi taken by the defence was not believed by the learned Trial Court on the ground that the defence failed to establish alibi although it had taken a plea without proving their whereabouts on the date of incident. Therefore, the same was turned down. The learned Trial Court while relying on the judgment of the Supreme Court in the case of Rajesh Kumar vrs. Dharam Veer reported in (1997) Crl.L.J 2212 has opined that the plea of alibi must be proved with absolute certainty excluding the presence of accused at the time and place where the incident took place. However, due to lack of evidence to clinch this Page 4 of 10 aspect, the learned Trial Court declined to believe the witnesses relied upon by the accused persons. The learned Trial Court recorded the following findings: clearly establishes Be that as it may, the evidence provided by the “11. prosecution witnesses the offence U/s.323/325/34 of the I.P.C. The injuries sustained by P.W.1 and P.W.2 clearly indicates that assault given by the accused persons caused bodily pain to them. The loss of teeth of P.W.2 due to Thenga blow given by the accused persons in a conjoint action satisfies the requirement of grievous hurt. In this regard I would like to rely upon the ratio settled in the matter of Harilal Vrs. State reported in A.I.R. 1970 Supreme Court, 1969, wherein the Hon’ble Supreme Court have observed as follows: “when the injury caused amounts to fracture or dislocation of bone or tooth it attracts (class-7) of Sec.320 of I.P.C. and thus it falls under definition of grievous hurt. So the persons causing such injury are guilty in causing hurt.” As the action of the accused persons is conjoint and in furtherance of their common intention, only one accused has caused blow, both the accused persons liable under section 34 of I.P.C.” 11. While acquitting the petitioners for the offences punishable under Sections 341/294/506/34 of the IPC, the learned Trial Court found them guilty of the offences punishable under Sections 323/325/34 of the IPC. Accordingly, the petitioners were sentenced to undergo R.I. for a period of one year and to pay a fine of Rs.500/- each, in default, to undergo Page 5 of 10 further R.I. for a period of one month for the offences under Sections 325/34 of the IPC and to undergo R.I. for a period of three months and to pay a fine of Rs.500/- each, in default, to undergo further R.I. for a period of one month for the offences under Sections 323/34 of the IPC and both the sentences were directed to run concurrently. 12. Being aggrieved and dissatisfied with the judgment of conviction and order of sentence dated 20.12.2008 passed by the learned S.D.J.M., Jeypore in G.R. Case No.220 of 2003, the petitioners filed Criminal Appeal No.36 of 2011 before the Court of learned Additional District & Sessions Judge-cum-Special Judge (Vigilance), Jeypore. The Appellate Court vide its judgment dated 6.12.2011 confirmed the finding recorded by the Court below. However, while confirming the conviction recorded against the petitioners for the offences under Sections 325/323/34 of the IPC, modified the sentence of one year R.I. to that of six months for the offence under Section 325/34 of the IPC and to pay a fine of Rs.500/- each, in default, to undergo further R.I. for one month whereas for the offences under Sections 323/34 of the IPC is concerned, the sentence was maintained. Page 6 of 10 13. Having failed in the appeal, the petitioners have approached this Court by filing the present criminal revision. 14. Mr. Mishra, learned counsel for the petitioners submitted that the Courts below erred in appreciating the defence evidence whereby the plea of alibi was taken by them. The Courts below have also glossed over the plea of defence regarding prior enmity between the parties. The Appellate Court has only commented on the past enmity inter alia stating that past enmity would not wash away the evidence brought on record by the prosecution against the petitioners. Therefore, the Appellate Court has concurrence with the finding of the Trial Court, would not sustain. 15. Mr. Ragada, learned Additional Government Advocate submitted that the evidence of P.Ws.1 & 2 those who were the victim were trustworthy having sustained lengthy cross-examination by the defence nothing could be elucidated contrary to the version of the informant as reflected in the F.I.R. The testimonies of these witnesses have also corroborated with the evidence of P.W.5, the Doctor, who had examined the witnesses. Therefore, there was no scope for doubting the Page 7 of 10 unequivocal evidence brought on record by the prosecution. Hence, Mr. Ragada submitted that no fault could be found from the judgment of conviction recorded against the petitioners. 16. I have carefully gone through the record and found that the evidence led by the prosecution is trustworthy. There is no scope for doubting the version of the victims and eye witnesses. Therefore, I confirm the judgments of the Courts below in so far as conviction against the petitioners for the offence punishable under Sections 323/325/34 of the IPC is concerned. 17. At this stage, Mr. Mishra, learned counsel for the petitioners submits that the petitioners have prayed before the Appellate Court for the benefit of P.O. Act. However, the Appellate Court had rejected the same. He is repeating his prayer for extending the benefit of P.O. Act. I have perused the judgment of the Appellate Court and the Appellate Court indeed has rejected the plea of the petitioners for grant of the benefit of the P.O. Act. The appellate court rejected the prayer recording as under: Page 8 of 10 “8. Learned counsel the appellants, however, for submits that considering the poor economic condition of the appellants and the fact that there are no criminal antecedents against them, they should be extended the benefit of P.O. Act. Since the evidence on record clearly shows that the occurrence took place in a pre-mediated manner and the assault by the accused persons caused grievous injuries on at least one of the victims inasmuch as he lost two of this tooth., I am not inclined to extend the benefit of P.O. Act to the appellants. However, having regard to the fact that the incident in question took place as far as back in the year, 2003 which is clearly eight years ago, coupled with the fact that there is nothing on record to show any serious criminal intent on the part of the accused persons, I am of the considered view that ends of justice would be best served by modifying the sentence of R.I. of one year for the offence under Sec.325/34 IPC to a period of Six months with the other sentence remaining in the same. Thus, it is directed that the appellants shall undergo R.I. for one month for the offence under Sec.325/34, IPC and to undergo R.I. for three months and to pay a fine of Rs.500/-, in default, to undergo R.I. for one month for the offence under Sec.323/34 to a period of Six months with the other sentence remaining in the same. Thus, it is directed that the appellants shall undergo R.I. for a period of six months and to pay a fine of Rs.500/- each, in default, to undergo R.I. for one month for the offence under Sec.325/34, IPC and to undergo R.I. for three months and to pay a fine of Rs.500/-, in default, to undergo R.I. for one month for the offence under Sec.323/34, IPC. The appeal id disposed of accordingly with the above directions. Send back the records forthwith.” 18. Regard being had to the fact that the incident had taken place way back in the year 2003 and at the time of incident the petitioners were very young and much has changed within two this decades, therefore, sending the petitioners to undergo further incarceration would serve no Page 9 of 10 purpose, rather would be harsh. The petitioners are not repeated offenders and they were not found wanting for misusing the liberty of bail granted to them in this case by the courts below. Therefore, the benefit of P.O. Act shall be extended to the petitioners. However, the fine imposed against the petitioners shall be increased to that of Rs.5,000/- each, in default, to undergo R.I. for a period of one month each. The fine amount to be deposited by the petitioners shall be disbursed to the victims as compensation under Section 357 of the Cr.P.C. 19. The Criminal Revision is accordingly disposed of in the aforementioned terms. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 30th July, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Aug-2024 11:30:37 Page 10 of 10