Criminal Appeal No. 250 of 1992 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRIMINAL APPEAL No. 250 OF 1992 An application under Section 374(2) of the 0Code of Criminal Procedure. Upendra Sahu & Others …. Appellants -versus- State of Orissa …. Respondent For Appellants :M/s. H.S. Mishra, Adv. For Respondent :M/s. P.K. Panda, Addl. Standing Counsel PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ------ --------------------------------------------------------------- Date of Hearing : 19.11.2024 & Date of Judgment: 16.12.2024 --------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 2.
Legal Reasoning
Heard learned counsel for the parties. 1 3. The present appeal has been filed challenging the judgment passed by the learned Sessions Judge, Bolangir on 04.07.1992 in Sessions Case No.67 of 1989. Vide the said judgment, Appellant No.4 has been convicted for the offence under Sections 304(Part-I) and 324 of the I.P.C. and sentenced to undergo R.I. for five years and fine of Rs.3000/-, in default R.I. For six months for the offence under Section 304(Part-I) and R.I. for one year for the offence under Section 324 I.P.C. Similarly, Appellant Nos.1 to 3 were convicted for the offence under Section 323 I.P.C. and convicted to undergo R.I. for six months. 4. It is however contended that since during pendency of the appeal, Appellant No.2 died, the order of conviction and sentence passed against him stands abated. 5. Learned counsel appearing for the appellants contended that pursuant to the F.I.R. lodged by the informant on 01.06.1989, Balangir Sadar P.S. Case No.69 of 1989 was registered for the offences under Sections 147, 148, 302, 325,323, 324/149 of the Indian Penal Code Page 2 of 14 against 18 nos. of accused. After completion of the investigation, charge-sheet also was filed against 18 nos. of accused persons and after commitment all the 18 accused persons were charged under Section 147/148 and 302 and 149 of the I.P.C. for having committed rioting and for causing the death of one Dau Sandh. In addition to that, appellant No.4 was charged for the offences under Section 324 of the I.P.C. Appellant No.1- Upendra Sahoo in addition was charged under Section 323 of the I.P.C. and Appellant No.2 was also in addition charged for the offences under Section 323 of the I.P.C. 5.1.
Legal Reasoning
It is contended that the prosecution in order to prove its case examined as many as 17 nos. of witnesses and exhibited various documents vide Ext.1 to Ext.29. Similarly, the defence examined 1 no. of witness and exhibited various documents vide Ext.A to Ext.D/1. 5.2. It is contended that learned trial Court after conclusion of the trial held Appellant No.4 guilty under Section 304(Part-I) I.P.C. and under Section 324 of the I.P.C. Page 3 of 14 Similarly, Appellant Nos.1 to 3 were found guilty for the offence under Section 323 of the I.P.C. Charges against the other accused persons were not proved and they were acquitted of the charges. 5.3. In support of the order of conviction and sentence passed against Appellant No.4 for the offences under Section 304(Part-I) and 324 of the I.P.C., learned counsel appearing for the Appellant inter alia raised a preliminary objection to the effect that even though Appellant No.4 was held guilty for the offence under Section 304(Part-I), but he was sentenced for the offence under Section 304 I.P.C. 5.4. It is contended that since Appellant No.4 was found guilty for the offence under Section 304(Part-I), he could not have been sentenced for the offence under Section 304 I.P.C. It is accordingly contended that the very order of sentence passed against Appellant No.4 is not sustainable in the eye of law. 5.5. It is also contended that even though Appellant No.4 was found guilty of the offence under Section 304(Part-I )and Page 4 of 14 under Section 324 of the I.P.C. with the prosecution allegation that he caused the death of the deceased because of one stab wound, but P.W.12 who happens to be the Medical Officer and examined the deceased, in his cross- examination clearly stated that Injury No.1 on the deceased is not a stab wound 5.6. Relevant extract of the evidence of P.W.12 in his cross-examination reads as follows: The injuries Nos.3 and 4 on Durlava is not possible by lathi because the lathi sent to me had smooth surface. Simple pressing of iron rod or lathi o the parts of the body will not cause the injuries found on Dhadu Sandh. To cause the injuries No.1 and 2 on Khedu Sandh, two blows are necessary. A single blow cannot cause both the injuries. Both the injured came together to the hospital. The requisition was received after the patients appeared in the hospital as out-door patients and police were informed. He was treated before the requisition. The injuries Nos.2,3 & 4 of Durlava or the injuries on Khedu Sa are not exactly possible by fall since I expect other accompanying injuries. Injuries Nos.1 & 2 of Khedu is possible if one falls on hard and rough substance. Injury No.1 on Durlava Sandh is not a stab wound. 5.7. It is accordingly contended that since Appellant No.4 was held guilty for the offence under Section 304(Part-I) and Page 5 of 14 Section 324 of the I.P.C. with the allegation that the appellant No.4 by act of stabbing on the belly of the deceased caused his death and the same having not been corroborated by the Medical Officer- P.W.12 ,the order or conviction and sentence passed against Appellant No.4 under Section 304(Part-I) and 324 of the I.P.C. is not sustainable in the eye of law. 5.8. It is also contended that the alleged incident occurred on 06.07.1989 with the allegation that a group of people from both the sides involved themselves in an act of rioting causing the death of one Dau Sandh. It is alleged that Appellant No.4 stabbed the deceased by a knife on his belly as well as his chest causing his death. It is however contended that since cause of death of the deceased is not because of the stab would in view of the evidence of the Doctor, P.W.12, the conviction and sentence under Section 304(Part-I) is not sustainable and so also under Section 324 of the I.P.C. 5.9 It is also contended that there is no specific allegation made against Appellant Nos.1 and 3. While the Page 6 of 14 learned trial Court acquitted as many as 14 nos. of accused person from out of the 18 charge-sheeted accused persons, the order of conviction and sentence passed under Section 323 of the I.P.C. against Appellant Nos.1 and 3 is also not sustainable in the eye of law. It is also contended that taking into account the nature of conviction and the sentence, appellant Nos.1 & 3 should have been released as per the provisions of the Probation of Offenders’ Act. 6. Mr. Pravat Kumar Panda, learned Additional Standing Counsel on the other hand while supporting the impugned order of conviction and sentence contended that the alleged incident occurred due to the overt act committed by the accused persons causing death of one Dau Sandha. All the accused persons who are charge sheeted, being armed with lathi, tangia and knife etc. came to the house of one Ram Bhagat Agarwal whose mill had caught fire on 30.05.1989 when the mill resumed its work from 05.07.1989. The alleged occurrence took place on the very next day on 06.07.1989. Since allegation was made that the mill was put to fire by the accused persons and they were Page 7 of 14 abused by taking their caste, they being armed with various weapons came to the house of the mill owner. Even though the matter was compromised, but while coming back, the accused persons surrounded the other group of persons and in course of such rioting, Appellant No.4 stabbed the deceased Dau Sandh on his back by a knife. 6.1. It is contended that the trial Court after going through the evidence so produced by the prosecution vis-(cid:224)- vis the defence though acquitted 14 nos. of accused persons, but taking into account the materials placed against the present Appellants and more particularly against Appellant No.4 having caused the death of the deceased by means of a knife and stabbing on the belly of the deceased, Appellant No.4 though was not found guilty for the offence under Section 302 of the I.P.C., but learned trial Court by taking a lenient view that the incident has occurred without any intention on the part of the Appellant No.4 to kill the deceased, held him guilty for the offence under Section 304(Part-I )and under Section 324 of the I.P.C. Similarly, basing on the materials placed against other appellants, Page 8 of 14 they were convicted and sentenced under Section 323 of the I.P.C. 6.2. Learned Additional Standing Counsel placing reliance on the evidence led by P.W.7, who happens to be an eye witness of the occurrence contended that the said witness in his deposition clearly implicated Appellant No.4 to have caused the death of the deceased because of his overt act of stabbing the deceased by means of a knife. It is also contended that in his cross-examination, P.W.7 also contended that the knife was not double edged and only one side was sharpen. The said witness also gave the details of the length of the size of the knife. Extract of the evidence of P.W.7 reads as follows: I know these accused persons (he names them all and identifies). About two years and ten months back on the day following Ratha Jatra on a Thursday this occurrence took place. These accused persons in the dock being armed with ion rod, lathi, tangia and knife came to the house of Rambhagat Agrawala, & They shouted us to come out and explain as to why we accuse the Agrias and Tolis to have bumt the mill. We the witnesses came there and denied to have accused any body by naming the caste. They wanted us to take oath before the deity. Myself, Dau Sandh, Khero, Tikenanda, Kalakanhu, Muni, Rudra, Bhai aba, and Lalit Seth (Forms) 631--2,00,000-12-4-1990-3 we all accompanied the accused persons to the temple. We were not armed. Biswambar Sahu opened the door Page 9 of 14 and took us to the bull statue and wanted us to take oath by touching the same. On the direction of Biswambar I_swear and then Rudra Seth took the oath. Then we can came out of the temple. 2. Narendra Patel saying that we took false oath, gave a push to Tikenandi Sanch. UpendraSahu dealt blows by iron rod to Khedo Sandh hitting him on his head causing a bleeding in jury. The blow also hit him and his elbow and rebounded hitting his neck. Raghunath Patel stabbed Dau sandh with a knife on his belly. The kms intestine came out and there was bleeding. I made an attempt to snatch away the knife, Raghunath stabbed me on my chest causing a bleeding injury. Accused Biswambar dealt a blow by ion rod hitting Lalit Seth on his head causing a bleeding in jury. Dau Sandh was going away. The accused persons shouted not to leave him and surmunded him. Raghunath stabbed Dau Sandh on his back at 3 to 4 places, Narendra beat me by a lathi on my head twice while Arjuna beat me by la thi on my two knee joints causing abrasions, and bleeding. They chased us away. 3. Police got me medically examined. Dau Sandh succumbed to his injuries in front of the house of Danara Sahu 6.3. It is contended that on the face of such evidence laid by P.W.7, learned trial Court on the ground that Appellant No.4 had no intention to cause such an act held him guilty for the offence under Section 304(Part-I ) and the other Appellants under Section 323 of the I.P.C. It is accordingly contended that no illegality or irregularity has been committed by the learned trial Court in passing the order of conviction and sentence against the Appellants. But Page 10 of 14 since Appellant No.2 has died during pendency of the appeal, the order of conviction and sentence passed against him stands abated. 7. To the submission made by the learned Additional Standing Counsel, Mr. H.S. Mishra, learned counsel appearing for the Appellants contended that the very initiation of the proceeding is doubtful as no formal F.I.R. was lodged before the concerned Police Station. 7.1 It is contended that the F.I.R. story was noted down by the local police. The informant who happens to be P.W.4 in his cross-examination clearly held that he lodged the F.I.R. orally and it was written down by the local police. In his cross-examination, the informant also clearly stated that the deceased had no altercation with the Appellant No.4. Relevant extract of the evidence of P.W.4 reads as follows: “ I lodged F.I.R orally. I did not have any other occasion thereafter to tell anything to the police. Police also never asked me. Except the Police Officer to whom I made oral report, no other police officer also ever after asked me about this. I signed the report when reduced to writing.” Page 11 of 14 8. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that basing on the F.I.R. lodged on 06.07.1989 Bolangir Sadar P.S. Case No.69 of 1989 was registered. After commitment, 18 nos. of accused persons faced the trial for the offences under Sections 147, 302,334,148,320/149 and 323 of the I.P.C. 8.1. Though 18 nos. of accused persons faced the trial but as found 14 nos. of the accused persons were not found guilty and were accordingly acquitted. However, Appellant No.4 was found guilty for the offence under Section 304(Part-I) and Section 324 of the I.P.C. Similarly, Appellant Nos.1 to 3 were held guilty for the offence under Section 323 of the I.P.C. 8.2 As found, even though Appellant No.4 was held guilty for the offence under Section 304(Part-I ), but he was sentenced for the offence under Section 304 I.P.C. Since the appellant was found guilty for the offence under Section 304(Part-I) as per the considered view of this Court, he Page 12 of 14 should not have been sentenced for the offence under Section 304 of the I.P.C. 8.3. Though it is the case of the prosecution as well as the evidence of the eye witnesses that the deceased died due to the injury caused by Appellant No.4 because of his stabbing by a knife has not been proved by the prosecution beyond all reasonable doubt, considering the evidence of the Medical Officer, P.W.12, it is the view of this Court that order of conviction and sentence passed against Appellant No.4 under Section 304(Part-I) and/or 304 of the I.P.C. is not sustainable in the eye of law. 8.4. It is also found that in course of investigation, the alleged knife was never recovered nor shown as an M.O. during trial. It is also found that without any cogent material, Appellant Nos.1 to 3 were found guilty for the offence under Section 323 of the I.P.C. and sentenced accordingly. 8.5. In view of the aforesaid analysis, this Court is of the view that Appellant Nos.1, 3 and 4 have been convicted and Page 13 of 14 sentenced for the offences in question without any cogent material being placed by the prosecution and the allegation have not been proved by the prosecution beyond all reasonable doubt. 8.6. Therefore, this Court is inclined‘ to set aside the order of conviction and sentence so passed by the learned Sessions Judge, Bolangir in Sessions Case No.67 of 1989 against appellant Nos.1, 3 and 4. While setting aside the same this Court allows the appeal. ( Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 16th December, 2024/sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 18-Dec-2024 18:48:27 Page 14 of 14