The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.785 of 2011 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) Ratikanta Mallik ……. Petitioner -versus- State of Orissa ……. Opp. Party For the Petitioner : Mr. A.K. Das, Advocate For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 23.04.2024 : Date of Judgment: 20.06.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 of Cr.P.C. is directed against the judgment and order dated 04.08.2008 passed by the learned Sessions Judge, Dhenkanal in Criminal Appeal No.11 of 2006, whereby the judgment of conviction and order of sentence passed by the learned S.D.J.M., Dhenkanal in G.R. Case No.718/2005 (Trial Case No.1721/2005) was confirmed. 2. The petitioner was subjected to prosecution in Dhenkanal Town P.S. Case No.190/2005 registered under Sections 452/294/323/506 of the I.P.C. 3. The prosecution case in brief is that on 11.08.2005 at 11.45 AM while the informant Mr. S.K. Sana Ullah, Assistant Teacher was teaching Mathematics to Class-IV students at Mandapa Sahi Upper Primary School, the petitioner being armed with a motor cycle chain, entered inside the classroom and searched for someone among the students. In the process, he started threatening the students. Seeing this, the informant asked him to leave the class room. But, the accused/petitioner abused him in obscene language and threatened to kill him and went away after assaulting 2 to 3 students. When the other teachers of the School came to the spot, petitioner went away from the class room. On the basis of such allegation, F.I.R. was lodged at Dhenkanal Town Police Station and charge sheet was submitted under Sections 452/294/323/506 of the I.P.C. and charges were framed against the petitioner under those Sections. The petitioner was put to trial. 4. To bring home charges, the prosecution examined as many as 10 witnesses including the informant as P.W.1. P.Ws.2, 3, 4 & 5 were the lady teachers of the concerned School, P.Ws. 7 & 8 were the students of the said Page 2 of 8 School, P.W.9 was the I.O of the case and P.W.10 was an independent witness. The prosecution exhibited two documents. The plea of defence was that of complete denial. In proof of their plea, defence examined none. 5. The learned S.D.J.M., Dhenkanal analyzed the entire evidence on record, found the accused person/petitioner not guilty of offences under Sections 294/506 of the I.P.C. and acquitted him from the said charges. But the petitioner was found guilty for commission of offences punishable under Sections 452/323 of the I.P.C. and was sentenced to undergo rigorous imprisonment for three years and pay fine of Rs.3,000/- in default to undergo further R.I for two months for the offence under Section 452 of the I.P.C. and further sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for one month for the offence under Section 323 of the I.P.C. 6. The judgment of conviction and order of sentence dated 30.01.2006 passed by the learned S.D.J.M., Dhenkanal in G.R. Case No.718/2005 (T.R. Case No.1721/2005) was called in question by filing Criminal Appeal No.11of 2006 before the Court of learned Session Judge, Dhenkanal by the petitioner. The learned appellate Court vide its judgment and order dated 04.08.2008 had dismissed the appeal inter alia stating as under: Page 3 of 8 “9. From the above discussion, there is overwhelming evidence in support of the prosecution case and on an assessment and evaluation of evidence on record, I hold that the appellant is liable to be punished U/s 452/323 I.P.C. In view of the positive evidence against the accused appellant, I hold that the learned court below has rightly convicted the accused-appellant by holding him guilty of the offence, punishable U/Ss.452/323 I.P.C. There is nothing wrong, illegality or perversity in the finding of guilt, rendered by the learned trial court warranting interference by this appellate court. Thus, the impugned judgment and order of conviction and sentence passed by the learned trial court is confirmed. Hence, it is ordered.” 7. The petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Criminal Revision Petition. 8. Heard Mr. A.K. Das, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 9. Perused the impugned judgment and order of conviction and sentence passed against the petitioner and meticulously evaluated the evidence on record. 10. The prosecution strongly relied upon the testimony of P.W.1, who was a teacher and P.Ws.7 & 8 were the students of the School. The entire incident happened in front of these three witnesses. P.Ws.2, 3 & 5 were the teachers of the School and they had not witnessed the occurrence, but in the quick succession, they came to know regarding the incident. The testimonies of all the witnesses have been corroborated. Therefore, the prosecution story cannot Page 4 of 8 be doubted. In that light, the learned trial Court while analysing the evidence of the witnesses, has arrived at the following conclusion: “8. If the aforesaid evidence of the above named P.Ws. is examined carefully it is found that their evidence so far as the materials facts of the prosecution case are concerned are not demolished. Particularly the evidence of the child witnesses who are students of the said school and victims of the assault of the accused remains unchallenged. There is nothing to show that they were tutored by the informant or any other person to depose in this case to support the prosecution story. There is nothing on record to show any hostility between the informant or those child witnesses towards the accused and the present case is out of such hostility and in order to falsely implicate him. Therefore, I am to accept their evidence. So their evidence adequately established the fact that the accused had committed house trespass by entering into the class room of Mandapasahi Primary School, and had assaulted the informant and the students. Though in the F.I.R. the informant has narrated the filthy language used by the accused but he has not stated so during his examination in court. P.Ws.7 and 8 have also not stated about any such use of filthy language by the accused. Therefore, the offence punishable U/s.294 of the I.P.C. is not proved. Similarly, the allegations of Criminal intimidation are not proved because neither the informant nor the other two witnesses have specifically deposed as to the manner in which they were intimidated by the accused. Only P.Ws.1 and 7 have deposed that the accused threatened/ frightened them. Under such circumstances the offence punishable U/s.506 of the I.P.C. is also not proved beyond reasonable doubt. But prosecution has successfully established the charge against the accused so far as the offences punishable U/Ss.452/323 of the I.P.C. are concerned. Bodily injury is not necessarily an ingredient to establish the charge U/s.323 of the I.P.C. Therefore, in consideration of the materials on record while acquitting the accused person from the charge U/Ss.294/506 of the I.P.C. as per the provisions of Section 248(I) of the Cr.P.C., I find him guilty of the offences U/s.452/323 of the I.P.C. and I convict Page 5 of 8 him thereunder as per the provisions of Section 248(1) of the Cr.P.C.” The learned trial Court has rightly acquitted the petitioner of the offences under Sections 294/506 of the I.P.C., however, convicted him for the offences under Sections 452/323 of the I.P.C. 11. The appellate Court concurred with the findings of the learned trial Court and upheld the conviction of the petitioner for commission of offences punishable under Sections 452/323 of the I.P.C. Paragraph-7 of the judgment of the appellate Court is worth reliance which is quoted below: “7. So far as the entry of the accused inside the school premises being armed with a motor cycle chain, assaulting the teacher and students, in the facts and circumstances, in view of my above discussion, it could reasonably be inferred that the accused-appellant being armed with a motor cycle chain, had entered the class room having made preparation for causing hurt and assault on the informant and students and therefore, he is guilty of the offence punishable U/Ss. 452/323 I.P.C.” 12. Learned counsel for the petitioner submits that in order to substantiate the offence under Section 323 of the I.P.C. regarding the assault to the victim, the prosecution ought to have examined the Doctor. However, in the instant case, there is no medical evidence adduced by the prosecution. Therefore, the offence under Section 323 of the IPC could not be established. In the absence of unproven offence under Section 323 of the IPC, the conviction under Section 452 of the IPC is also not sustainable. Learned Page 6 of 8 counsel for the petitioner further submitted that in the entire case of the prosecution the motive behind the commission of such offence is also not coming forth. Learned counsel for the petitioner further submitted that the Court below have heavily relied upon the testimonies of P.Ws.7 & 8, who were the students of Class-IV of the School. Apart from their evidence, no other evidence adduced by the prosecution is worth reliance. 13. Mr. Ragada, learned counsel for the State submitted that not only the evidence of P.Ws.7 & 8, but also the evidence of P.W.1 stands corroborated with the evidence of P.Ws.3 & 5, who were the teachers of the School. Mr. Ragada further submitted that the accused/petitioner was a way-ward and arrogant person. He had been picking up quarrels with every one without any reason that had been his antecedent. The learned trial Court sought a report from the District Probationary Officer regarding the criminal antecedent of the petitioner. The report reveals that the petitioner had criminal antecedent. Therefore, the Court below had also declined to extend the benefit of Probation of Offenders Act. In view of the character of the petitioner, he could have done offence as alleged by the prosecution without any motive also. Page 7 of 8 14. I have carefully considered the materials on record and found that both the Courts below have rightly appreciated the evidence and convicted the petitioner for the offence under Sections 452/323 of the IPC. From the record it is found that the petitioner was taken into custody on 22.12.2010 and this Court vide its order dated 02.11.2011 granted bail to the petitioner. Thereafter, the petitioner was released on bail. Therefore, the petitioner had already undergone a substantive sentence of about ten months and twenty days. 15. In view of the fact that the incident pertains to the year 2005 and the petitioner has already undergone about more than ten months in custody, I am inclined to modify the sentence awarded by the Courts below to that of the sentence already undergone by the petitioner. The sentence is modified accordingly. 16.
Decision
The Criminal Revision is accordingly allowed and disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 20th June, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Jul-2024 17:47:20 Page 8 of 8