The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.714 of 2012 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Bikal Kumar Das ……. Petitioner -versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. Nalini Kanta Dash, Advocate For the Opp. Party : Mr. Jyoti Prakash Patra, Addl. Standing Counsel CORAM:
Legal Reasoning
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 by the petitioner under Section 401 read with Section 397 of Cr.P.C., is directed against the judgment and order dated 28.07.2011 passed by the learned Additional Sessions Judge (F.T.C.), Athagarh in Sessions Trial No.281 of 2010. 2. Initially, this case was filed as CRLA No.589 of 2011 and vide order dated 15.11.2012, this Court has converted the same to CRLREV No.714 of 2012 by passing the following order: “On the oral prayer made by the learned for the petitioner, the present appeal is converted to the revision. Office is directed to change the nomenclature as ‘CRLREV’ instead of ‘CRLA’ and register the same. List this matter next week before the assigned Bench.” 3. The case of the prosecution, in brief, is that, on 06.09.2009 at about 8 A.M., one Rabindra Kumar Mishra, the informant, was sitting in the P.W.D., I.B. of Tigiria located at Gohiramunda. While he was discussing with Bansanta Kumar Beig and Purna Chandra Jena, accused Bikala Kumar Das arrived there on his bicycle. When the accused wanted to talk with Rabindra Mishra in private, the other two persons left the spot and sat in a nearby place. The accused had brought a bag with him. During the course of discussion, all of a sudden, the accused picked up a ‘katari’ from his bag and attempted to assault Rabi Mishra on the head. However, the blow could not hit Rabi Mishra as he ducked. Then, the accused raised the ‘katari’ to give another blow, but Rabi Mishra, to protect himself, raised his right hand, but he got hit on his Page 2 of 8 chest. Seeing the assault, Basanta Beig and Purna Chandra Jena, who were at a little distance, rushed to the spot and suddenly, the accused fled from the spot leaving his bag. The accused Bikala, after arrival at Gohiramunda Chhaka, disclosed before his son and a few others to have assaulted Rabi Mishra. The accused threatened the informant to kill him and fled from the spot. On that day, at around 9 A.M., Rabi Mishra, the informant, lodged a written report before the Tigiria Police Station. On receipt of such report, the O.I.C., Tigiria Police Station registered the F.I.R. and took up an investigation. After the completion of investigation, charge sheet was submitted for the alleged commission of offences punishable under Sections 307/324/506/34 of the I.P.C. against the accused persons. 4. The present petitioner, along with his son, Jitu @ Jitendra Kumar Das, were charged for commission of the offences punishable under Sections 307/324/506/34 of the IPC for having assaulted Rabi Mishra. The petitioner and the co-accused, i.e., his son, were put to trial for the alleged commission of the aforesaid offences. Page 3 of 8 5. The prosecution, in order to establish its case, examined eight witnesses. P.W.1 and P.W.2 were the eye witnesses to the occurrence in this case. The injured witness, who was the informant, had already expired before submission of the charge-sheet. Therefore, the prosecution strongly relied upon the eye-witness count. The prosecution also examined P.W.3 as a post-occurrence witness, who did not support the prosecution case and turned hostile. P.W.4 was a crucial witness. The prosecution has relied upon P.W.5, the doctor who, upon requisition from the I.O. of the case, P.W.6, had examined the injured. P.W.7 and P.W.8 were the police officials, examined as seizure witnesses. The learned trial Court has strongly relied upon the testimony of the doctor. Having found from the record that the prosecution could not prove the case against the co-accused, the learned trial Court acquitted the co- accused of all the charges. However, by supplying emphasis to the testimony of P.W.5, the leaned trial Court came to the conclusion that no case under Sections 307/506 of the IPC was made out against the present petitioner. Therefore, the learned trial Court found the petitioner guilty Page 4 of 8 of the offence punishable under Section 323 of the IPC instead of offences under Sections 307/324/506/34 of the IPC. The learned trial Court, in its judgment dated 28.07.2011, has appreciated the evidence and recorded the following findings: “10. The prosecution does not establish the motive behind the assault. The injuries are simple in nature and not inflicted on any vital part of the body. The doctor P.W.5 in cross- examination has stated that both the injuries are superficial in nature and can be caused by self infliction. The evidence does not establish that the accused Bikala had any intention to commit the murder or by such assaults there was likelihood of death of Rabi Babu. In the cross-examination of the doctor even he has stated in examination-in-chief that the injuries might have been caused by sharp cutting weapon but his opinion elicited in cross-examination totally balies, use of any deadly weapon capable of causing death. In view of my aforesaid scanning of evidence, I am of the view that the prosecution failed to establish the ingredients envisaged U/s.324/307 IPC against the accused. In any view of the matter, the charges u/s.324/307 IPC are not established and the accused Bikala Kumar Das however cannot be escaped from the charge U/s.323 IPC as he voluntarily caused hurt to late Rabi Mishra. In view of the fact, I convict him accused Bikala Kumar Das for the offence U/s.323 IPC. The evidence on record is totally absent with regard to the commission of offence U/s.506/34 IPC.” 6. I have heard learned counsels for both the parties and analyzed the evidence on record to test the sustainability of the judgment of the learned trial Court. I find no reason to interfere in the impugned judgment, as the impugned judgment has been passed on the right Page 5 of 8 appreciation of the evidence. Although the petitioner subjected to trial for the alleged offences under Sections 307/324/506/34 of the IPC, but on perusal of the evidence of the Doctor (P.W.5), it is abundantly clear that the injuries sustained by the informant/victim are simple in nature. The Doctor, Bijaya Kumar Sahu examined the informant/victim and found the following injuries: Incised would of size 1” x 1/4”, superficial over right side “(i) chest wall. (ii) Incised would of size ½” x ¼” superficial over right forearm. The injuries are simple in nature and doctor while proving the injury report marked as Ext.3 opined that the injuries might have been caused by sharp cutting weapons, within 3 to 4 hours of his examination.” The injury report was marked as Ext.-3. The report suggests that both the injuries are simple in nature. Therefore, emphasizing on the nature of injury sustained by the informant, the learned trial Court has rightly acquitted the petitioner of the offences under Sections 324/307 of the IPC, rather held the petitioner guilty of the offences under Section 323 of the IPC, accordingly, sentenced him. No fault could be found from the appreciation of the learned trial Court to arrive at the conclusion. Hence, this revision petition deserves no merit and liable to be dismissed. Page 6 of 8 7. At this stage, relying upon the quantum of sentence, Mr. Das, learned counsel for the petitioner, submits that the incident had taken place in the year 2009. At that point of time, the petitioner was aged about 46 years. This revision petition is pending since 2012 and the petitioner is a first-time offender. There is nothing on record to suggest that the petitioner has acted in detriment to the interest of the society. The sentence awarded by the learned trial Court was of S.I. only for one month. Therefore, no fruitful purpose would be served by sending the petitioner to suffer incarceration at this belated stage. Therefore, I am of the considered view that the petitioner is entitled to the benefit of the Probation of Offenders Act. 8. Accordingly, this Court directs the petitioner to be released under Section 4 of the Probation of Offenders Act, 1958 for a period of six months on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence when called upon during such period, and in the meantime, the petitioner shall keep peace and good behavior and he shall remain under the Page 7 of 8 supervision of the concerned Probation Officer during the aforementioned period.
Decision
9. The Criminal Revision is partly allowed and accordingly disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 29thOctober, 2024/Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Nov-2024 12:58:02 Page 8 of 8