Criminal Appeal No. 49/12 of 2005 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 145 of 2006 An application under Section 397 read with Section 401 of the Code of Criminal Procedure challenging the judgment and order dated 29.01.2005 of learned Judicial Magistrate First Class, Udala in G.R. Case No.154 of 1994 (Trial Case No. 123 of 2000) and the judgment and order dated 03.01.2006 of learned Adhoc Addl. Sessions Judge (FTC), Baripada in Criminal Appeal No.49/12 of 2005. -------------- Ugrasen Mohanta ..…. Petitioner -versus- State of Orissa …… Opp. Party --------------------------------------------------------------------------- For Petitioner : Mr. Monomoy Basu, Advocate For Opp. Party ---------------------------------------------------------------------------- : Mr. M.R. Mishra, A.S.C. CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 03.04.2024 Savitri Ratho, J This application under Section 397 read with Section 401 of the Code of Criminal Procedure has been filed challenging the judgment and order dated 03.01.2006 passed in Criminal Appeal No.49/12 of 2005 by the learned Adhoc Additional Sessions Judge
Legal Reasoning
(F.T.C.), Baripada confirming the conviction of the petitioner under Section 324 of IPC and sentence to undergo R.I. for six CRLREV No. 145 of 2006 Page 1 of 9 months by judgment dated 29.01.2005 passed by the learned J.M.F.C., Udala in G.R. Case No.154 of 1994 (Trial Case No. 123 of 2000). 2. The prosecution allegation in brief is that on 02.08.1994 at about 9.30 a.m. the informant-Laxmidhar Mohanta (P.W.4) found the petitioner cutting his ridge on his land. When he protested, the petitioner shot arrows at him from his bow. One arrow hit the injured-informant on his right leg below the knee and another arrow hit the left side abdomen, as a result of which he fell down in the mud. The petitioner pressed the neck and abdomen of the informant with his leg to the ground. Rama Mohanta (P.W.5), the sister of the injured-informant who was working nearby separated them and took the informant to D.H.H, Baripada for treatment. On 03.08.1994, the informant sent his written FIR to the O.I.C., Khunta Police Station from D.H.H, Baripada and the O.I.C., Khunta Police Station registered the case on 03.08.1994 for the offence under Section 324 of IPC. After completion of investigation charge sheet dated 15.09.1994 was submitted against the petitioner for commission of offence punishable under Section 323 of IPC. CRLREV No. 145 of 2006 Page 2 of 9 3. The petitioner was charged for commission of offence punishable under Section 324 of IPC on the allegation of voluntarily causing hurt to Laxmidhar Mohanta by means of arrow which is an instrument for stabbing and cutting. 4. During course of trial, in order to prove its case, the prosecution examined seven witnesses and the defence examined one witness. P.W.1 Dama Sing and P.W.2 Charan Sing are stated to be independent eye witnesses, P.W.3 Fulamani Mohanta is the wife of the informant, P.W.4 Laxmidhar Mohanta is the injured informant, P.W.5 Rama Mohanta is the sister of the informant, P.W.6 Dr. Minati Kumari Majhi is the medical officer and P.W.7 Harekrushna Pradhan is the investigating officer. The petitioner Ugresana Mohanta examined himself as D.W.1. 5. The prosecution exhibited two documents. Ext.1 is the F.I.R. and Ext.2 is the injury report and Ext.A is the notice in G.R. Case No. 153 of 1994 to appear at Lok Adalat at Sainkula. 6. The defence plea was one of false implication and in his statement recorded under Section 313 of Cr.P.C., the petitioner CRLREV No. 145 of 2006 Page 3 of 9 stated that the informant assaulted him by means of Katari while he was working in his land. 7. After analyzing the evidence of the witnesses on record, the learned trial Court referred to Ext.A which was the notice issued to the petitioner from the Court of the learned S.D.J.M., Udala in G.R. Case No. 153 of 1994 under Sections 341, 323 of IPC and observed that the same is the prima facie proof of the existence of the present case and that previous ill-felling and enmity between the parties relating to the land dispute is a double edged weapon. The Court further observed that the medical report (Ext.2) clearly suggests that the informant has sustained one lacerated injury on his right fore-leg and one penetrated injury on the left side of his abdomen and these injuries are not possible by fall or self-implication and these injuries were inflicted on the informant by someone and it was the duty of the accused to explain as to how the informant sustained the aforesaid injuries. As he was failed to explain the injuries and has stated that with a hope to settle this case he attended the Lok Adalat at Sainkula on 27.11.1994 and compounded G.R. Case No. 153 of 1994, it indicates that he was the author of the injuries. As regards the contention of the accused that the I.O. had failed to seize the CRLREV No. 145 of 2006 Page 4 of 9 weapon of offence the Court observed that this indicates the negligence or incompetency of the I.O., but it is not sufficient to throw out the prosecution case by relying on the decision of this Court in the case of Gaura vs. State reported in 1993 (6) OCR 525. The learned trial Court has turned down the contention that P.Ws. 1, 2 and 3 have not stated before the I.O. that bow and arrow have been used to cause the injuries holding that no suggestion was put to P.Ws.1 and 3 and only suggestion has been put to P.W.2. Holding that bow and arrow are instruments commonly used for stabbing and cutting, it convicted the petitioner for commission of the offence under Section 324 of IPC. In view of the nature of assault, the learned trial Court declined to extend the benefit of Probation of Offenders Act to the petitioner. 8. The learned Appellate Court dismissed the appeal holding that the evidence of P.Ws. 2 and 5 regarding assault on the injured by means of bow and arrow corroborate the evidence of the injured P.W. 4 and this evidence has been corroborated by the independent witnesses P.Ws. 1 and 2. As regards the contention regarding the failure of the I.O. to seize the weapon of offence i.e. bow and arrow and non-examination of the specialist doctor to whom the P.W.4 had been referred for which no definite CRLREV No. 145 of 2006 Page 5 of 9 conclusion can be drawn regarding the injuries on P.W.4, it found the evidence of the I.O. to be silent regarding seizure of any weapon of offence but observed that the injury report indicated that the injury no. 2 is a penetrating injury which is not possible by fall or self-infliction and referring the evidence of P.Ws. 3, 4 and 5 held that their evidence is clear and consistent and non-seizure of weapon of offence and non-examination of specialist doctor does not in any way affect the credibility of the eye witnesses. The learned Appellate Court confirmed the conviction of the petitioner under Section 324 of IPC and refused to extend the benefit of the Probation of Offenders Act to the petitioner. 9.
Legal Reasoning
Mr. Monomoy Basu, learned counsel for the petitioner submits that in view of the admitted position that the prosecution has not seized the alleged weapon of offence i.e. bow and arrow, the conviction of the petitioner under Section 324 of IPC is unsustainable. He further submits that the ocular evidence is not corroborated by the medical evidence inasmuch as although the eye witnesses have stated that the petitioner has shot two arrows at injured P.W.4, one arrow hit his right leg and the other hit the left side of abdomen, but medical evidence reveals that he has sustained a lacerated injury on his foreleg which the doctor has CRLREV No. 145 of 2006 Page 6 of 9 opined to be possible by hard and blunt weapon and the depth of the penetrating injury on his left side abdomen has not been furnished. He also submits that though the accused has been referred for examination by a specialist, neither has the report of the specialist been exhibited nor has such specialist been examined in the trial for which the conviction of the petitioner under Section 324 of IPC is liable for interference. In support of his submission, he relied on the decision of the Apex Court in the case of Paramjeet Singh @ Pamma vs. State of Uttarakhand reported in AIR 2011 SC 200, where the guidelines regarding standard of proof to be maintained in a criminal trial has been laid down. 10. Mr. M.R. Mishra, learned Additional Standing Counsel for the State submits that the impugned judgments do not call for any interference as the evidence of the eye witnesses regarding assault on the injured by means of bow and arrow have gone unchallenged. He further submits that failure of the I.O. to seize the bow and arrow cannot be a ground to disbelieve the prosecution case as the evidence of the eye witnesses corroborate each other regarding the assault on the injured by means of bow and arrow and the injured has sustained injuries. CRLREV No. 145 of 2006 Page 7 of 9 11. I have perused the impugned judgments and gone through the evidence of the eye witnesses, P.W.6 the doctor and P.W.7 the investigating officer. The evidence of the witnesses that the injured has sustained two injuries on account of assault by the petitioner is not liable for interference. On a reading of the evidence, it is forthcoming that the alleged weapons of offence, the bow and arrow have not been seized nor has the specialist to whom the injured had been referred for opinion regarding nature of injury has not been examined nor has his report been exhibited. Perusal of the injury report (Ext.6) reveals that the depth of the penetrative injury has not been mentioned. P.W.6 the doctor has opined that the injury on the leg of the injured is possible by hard and blunt weapon and has not given any opinion as regards the weapon used for inflicting the injury in the abdomen. In view of that a doubt arises in the mind of the Court as regards nature of the weapon of offence which has been used for causing the injury of the injured 12. I am therefore of the opinion that the conviction of the petitioner under Section 324 of IPC is not sustainable. But as evidence of the prosecution is consistent so far as injuries sustained by the injured, I am of the opinion that the petitioner is liable for CRLREV No. 145 of 2006 Page 8 of 9 commission of offence under Section 323 of IPC for voluntarily causing hurt to the injured. 13. The conviction of the petitioner is modified from Section 324 of IPC to one under Section 323 of IPC. 14. It is stated by the learned counsel for the petitioner that after his conviction was confirmed by the learned Appellate Court and the revision was pending before this Court, the petitioner had been arrested on 31.03.2006 and remained in custody till 26.06.2006 which is almost three months. 15. As almost thirty years have elapsed since the date of occurrence, I am of the view that it would not be in the interest of justice to send back the petitioner to custody. I therefore sentence him to the period already undergone for commission of the offence under Section 323 of IPC. 16. The Criminal Revision is partly allowed. ……………………… (Savitri Ratho, J) Orissa High Court, Cuttack. The 03rd April, 2024. S.K. Behera, Senior Stenographer. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 08-Jun-2024 11:16:16 CRLREV No. 145 of 2006 Page 9 of 9