Criminal Appeal No. 75/79 of 2005 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 21 of 2007 An application under Section 401 read with Section 397 of the Code of Criminal Procedure challenging the judgment and order dated 06.09.2005 of the learned Sub-Divisional Judicial Magistrate, Baripada in G.R. Case No.372 of 1995 (T.R. No. 89 of 1996) and the judgment and order dated 16.11.2006 of the learned Adhoc Addl. Sessions Judge (Fast Track Court), Baripada in Criminal Appeal No. 75/79 of 2005. -------------- 1. Harish Chandra Naik 2. Girish Chandra Naik ..…. Petitioners -versus- State of Orissa …… Opp. Party --------------------------------------------------------------------------- For Petitioners : Mr. N. Praharaj, Adv. For Opp. Party ---------------------------------------------------------------------------- : Mr. M.R. Mishra, A.S.C. CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 20.03.2024 Savitri Ratho, J This revision under Section 401 read with Section 397 of the Code of Criminal Procedure has been filed by the petitioners who are the husband and brother-in-law of the victim, challenging the judgment and order dated 16.11.2006 passed by the learned Adhoc Addl. Sessions Judge (Fast Track Court), Baripada in Criminal Appeal No. 75/79 of 2005 setting aside the conviction of CRLREV No. 21 of 2007 Page 1 of 12
Legal Reasoning
the petitioners under Sections 498-A, 34 of IPC and confirming their conviction under Section 323/34 of IPC and modifying their sentence to undergo R.I. for one year to undergo R.I. for three months passed by the learned Sub-Divisional Judicial Magistrate, Baripada in G.R. Case No.372 of 1995 (T.R. No. 89 of 1996) judgment and order dated 06.09.2005. PROSECUTION CASE 2. The prosecution allegation in brief is that the marriage of petitioner no.1 Harish Chandra Naik had been solemnized with P.W.1 in the year 1983 and she stayed in her husband’s house for about three years after which he started ill-treating her for which she went with her son to her parental house and stayed there for six years. In the year 1994 in the month of April, on the intervention of the villagers, a compromise was entered into between the two families and P.W.1 went to the house of the petitioner no.1 at Tentuligan and stayed there. But the petitioners used to abuse her saying that she is a witch and if she stayed there, their generation will be exterminated and they wanted her to leave the house. On 15.05.1995, due to shortage of rice in the house, she asked her husband for rice, but he drove her away from the house. So she slept on the verandah that night and on the next day, the petitioners CRLREV No. 21 of 2007 Page 2 of 12 quarreled with her and when she protested, her husband petitioner no.1 assaulted her with a lathi and petitioner no.2 assaulted her with a pestle (Silapua) causing bleeding injury on her forehead and they drove her out of the house. She narrated the incident before one Krushna Chandra Pal (not examined) who advised her to go to the Police Station. She stated that she tolerated the repeated assault of the accused as the local people were not willing to give evidence against them. The FIR has been lodged by the injured and station diary entry no. 215 dated 16.05.1995 was made and the report sent to the I.I.C., Badasahi Police Station where Badasahi P.S. Case No. 36 of 1995 was registered. After the investigation, receipt of the
Legal Reasoning
injury report, investigation was handed over to Mr. G.C. Sethi, O.I.C., Barsahi Police Station to examine the witnesses and arrest the accused persons. After completion of investigation charge sheet was submitted against the petitioners. DEFENCE PLEA 3. The plea of the petitioners was one of complete denial. WITNESSES 4. During course of trial, in order to prove its case, the prosecution examined ten witnesses. P.W.1 Draupadi Naik is the victim - informant. P.W.2 Santosh Kumar Patra is her brother. CRLREV No. 21 of 2007 Page 3 of 12 P.W.9 Prafulla Kumar Sahu is the I.O. and P.W.10 Dr. Prafulla Chandra Panda is the doctor who had examined P.W.1. P.Ws. 3 to 8 did not support the prosecution case and were declared hostile. No witnesses were examined on behalf of the defence. EXHIBITS 5. The prosecution exhibited five exhibits. Ext.1 is the Panchayatnama, Ext.2 is the written report, Exts.3 and 4 are the seizure lists and Ext.5 is the injury report. TRIAL COURT JUDGMENT 6. The learned S.D.J.M., Baripada on perusal of the evidence of the witnesses found that the evidence of P.W.1 was consistent to make out the offences under Section 323/34 of IPC against the petitioners and he also believed the evidence of P.W.2 which corroborated the evidence of P.W.1. Holding that nothing vital had been elicited in their cross-examination, it relied upon their evidence to convict the petitioners under Section 323/34 of IPC and sentenced them thereunder as earlier mentioned. As regards the evidence regarding Section 498-A of IPC, he found that P.W.1 has not stated about being beaten and thrown out of the house on the previous night and therefore disbelieved the evidence CRLREV No. 21 of 2007 Page 4 of 12 of P.W.2 and P.W.3 as regards the allegations that P.W.1 was driven out from the petitioner no.1’s house. APPELLATE COURT JUDGMENT 7. The learned Adhoc Addl. Sessions Judge (Fast Track Court), Baripada found that the P.W.1 had not stated before the police about being driven out of the house and having to spend the night outside on the verandah for which it disbelieved that portion of the evidence of P.W.1, but found the evidence regarding commission of offence under Section 323 of IPC to be cogent holding that the evidence of P.W.1 in that regard, has been corroborated by P.W.2 and P.W.10 the doctor. As it found that the maximum custodial sentence under Section 323 of IPC has been awarded by the trial Court, so while confirming the conviction of the petitioners under Section 323/34 of IPC reduced the sentence from one year R.I. to three months R.I. SUBMISSIONS 8. Mr. N. Praharaj, learned counsel for the petitioners has submitted that the impugned orders are liable to be set aside as the evidence of P.W.1 regarding the offence under Section 498-A of IPC has been disbelieved by the learned Appellate Court for which the same evidence cannot be relied upon, to sustain the conviction CRLREV No. 21 of 2007 Page 5 of 12 of the petitioners under Section 323 of IPC. He further submits that the prosecution case should have been disbelieved as Krushna Pal to whose house, the victim claimed to have gone soon after the occurrence and narrated the incident, has not been examined by the police and no explanation has been given for his non-examination. His final submission is that the incident is of the year 1995 and more than 30 years have elapsed in the meanwhile. Even if this Court does not interfere with the conviction of the petitioners under Section 323 of IPC, the petitioners should not be sent back to custody. He further submits that the petitioners had been arrested on 12.07.1995 and were released on bail 19.07.1995 and therefore have spent seven days in custody. 9. Mr. M.R. Mishra, learned Addl. Standing Counsel for the State submits that both the Courts below have accepted the evidence of P.W.1 as regards the offence under Section 323 of IPC. He further submits that her evidence is corroborated by P.W.10 the doctor who found a lacerated injury on the front of her head and multiple bruises on her back, arm and right elbow. So there is no reason why the conviction of the petitioners under Section 323 of IPC should be interfered with. He however does not oppose the CRLREV No. 21 of 2007 Page 6 of 12 submission of the learned counsel for the petitioners regarding modification of the sentence. 10. After perusing the evidence of P.W.1, 2, 9 and 10, I find that the evidence of P.W.1 regarding the assault on her by the petitioners has not been shaken in cross-examination. This aspect of her evidence is corroborated by the evidence of her brother P.W.2 who has stated that he has seen the injuries on P.W.1. P.W.10 Dr. Prafulla Chandra Panda, the Medical Officer in-charge of Manatri Hospital has stated that he found one lacerated injury on her forehead and three multiple bruises on the back of her chest, one bruise on the back of the left forearm and abrasion on her back of the right elbow and he has also stated that these injuries are simple in nature and caused by hard and blunt weapons. Although in his cross-examination he has stated that the injuries may be possible by fall and hard and blunt surface, but as there is no evidence that the petitioner had fallen on any hard and blunt surface, the said admission does not help the defence in any manner. From the evidence of P.W.9, it has been established that P.W.1 has not stated before him (the I.O.) that her husband had driven out of her house and she had to spend the night with her child on the verandah outside the house. But as regards the rest of CRLREV No. 21 of 2007 Page 7 of 12 her evidence regarding assault of P.W.1 by the petitioners on resulting in injuries, the same has not been shaken in the cross- examination. ORAL EVIDENCE 11. In order to decide whether the impugned judgments call for any interference it is necessary to carefully examine the oral testimony of the witnesses. 12. P.W.1 Draupadi Naik is the wife of the petitioner no.1 and she has stated that she married the petitioner Harish Chandra Naik eleven years back and petitioner Girish is his brother and her brother-in-law. After the marriage she stayed in the matrimonial house for four to five months. She was provided with 500 grams of rice per day for her consumption which was insufficient for her during her pregnancy. A child was born to her but her husband would assault her and lastly drove her out from the house. So she took shelter on the house verandah with her child for one night and on the next day, came to her parent’s house. She stayed there for six years and a panchayat was held in her father’s village which her husband attended. Kalia Rana (P.W.8), Sirish Mandal (P.W.6), Katia Behera were present in the said meeting. Both the petitioners assured in the said Panchayat not to ill-treat her further. CRLREV No. 21 of 2007 Page 8 of 12 Accordingly a compromise deed was prepared and her husband Harish signed it. As per that decision, she came with the accused to their house but after six to seven days she was not provided with food and clothes. Her husband Harish assaulted her by means of lathi and her brother-in-law assaulted her with Silupua. She sustained bleeding injury on her forehead due to blow by Silapua and on her back and shoulder due to blow by lathi. She sustained bleeding injury on frontal side of the head. She narrated this assault to Krushna Pal of Tentuligan as well as to her brother P.W.2 who scribed the report and she lodged the same at Bhimda out-post. She was treated at Govt. Hospital, Manatri being sent there by the police. She has stated that she approached the police while going from accused house and then subsequently submitted the FIR with her brother at the beat house. P.W.2 Santosh Kumar Patra is the brother of P.W.1. He has stated that P.W.1 married the petitioner Harish. The other accused is the brother-in-law of P.W.1. Seven to eight months after the marriage, his sister was subjected to ill treatment. When she came to their house, she informed him that she was not provided with food and was assaulted by her husband. Three years after the marriage, P.W.1 came to their house and stayed. P.W.1 reported CRLREV No. 21 of 2007 Page 9 of 12 the matter before Bhimda out-post and the police advised to have it compromised. So a Panchayat was held in their house where the petitioners, P.W.6, P.W.7 and P.W.8 were present and as per the decision of the Panchayat, the petitioners took his sister P.W.1 to their house. The Panchayatnama was prepared and P.W.1 stayed in the petitioner’s house for about one year and then she was assaulted and driven out by the petitioners, so she came to her parent’s house with injuries on her person. He accompanied P.W.1 to Bhimda Out-post and submitted a written report. P.W.3 Basanti Manjari Jena, P.W.4 Narendra Tarei, P.W.5 Bansidhar Patra, P.W.6 Siris Chandra Giri, P.W.7 Ajit Kumar Behera and P.W.8 Kali Charan Rana who are co-villagers have not supported the prosecution case. P.W.9 Prafulla Kumar Sahu is the I.O. in the case and submitted charge sheet and stated that on 16.05.1995 he made S.D. Entry No. 215 on receipt of the written report from P.W.1 and took up the investigation sending the report to the O.I.C., Barsahi Police Station for registration and the OIC allowed him to continue the investigation. During his investigation, he examined the complainant, sent the complainant to Manatri Hospital for medical examination under requisition, visited the spot, prepared the spot CRLREV No. 21 of 2007 Page 10 of 12 map, seized pestle (Silapua) on the identification by the complainant, received the medical report and handed over the charge of investigation to G.C. Sethi, the OIC of Badashi Police Station. P.W.10 Dr. Prafulla Chandra Panda is the medical officer who examined the P.W.1 on medical requisition and stated that on 16.05.1995 at 11.00 a.m. on police requisition he examined P.W.1 and found lacerated injury on fore-head, multiple bruises five numbers on the back of chest, one bruise on back of her left fore- arm, abrasion on back of right elbow and opined that the injuries were simple in nature caused by hard and blunt weapon. In cross- examination further stated that the injuries are also possible by fall on hard and blunt surface. He has not mentioned the colour of the injury. 13. Although I am not satisfied with the acquittal of the petitioners the offence under Section 498-A of IPC but as the same has not been challenged by the complainant such acquitted cannot be interfered with. As regards the evidence of the witnesses. I find that the offence under Section 323 of IPC has been clearly proved. CRLREV No. 21 of 2007 Page 11 of 12 CONCLUSION 14.
Decision
In view of the above evidence and the scope of interference in a revision with orders of the learned Trial Court and the Appellate Court, I am not inclined to interfere with the conviction of the petitioners under Section 323/34 of IPC. Considering the fact that the petitioners have spent seven days in custody and thirty years have elapsed since the date of occurrence, I am inclined to modify the custodial sentence to the period already undergone and impose a fine of Rs. 1000/- each on them, in default to undergo R.I. for a period of three months each. The fine amount should be paid within four months from today. If the fine amount is realized, the same shall be paid to P.W.1 Draupadi Naik (informant). 15. With the above modification in the sentence, the CRLREV is disposed of. ……………………… (Savitri Ratho, J) Orissa High Court, Cuttack. The 20th March, 2024. S.K. Behera, Senior Stenographer. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 13-Jun-2024 19:38:36 CRLREV No. 21 of 2007 Page 12 of 12