Criminal Appeal No. 03 of 2010 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.488 of 2012 (In the matter of an application under Sections 401 & 396 of the Criminal Procedure Code, 1973) Nemichand Sahu and Another ……. Petitioners -Versus- State of Odisha ……. Opposite Party For the Petitioners : Mr. B.K. Behera, Advocate For the Opp. Party : Mr. S.R Roul, Addl. Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 08.04.2024 :: Date of Judgment: 15.04.2024 S.S. Mishra, J. The present Criminal Revision filed under Sections 401 & 396 of Cr.P.C. is directed against the judgment and order dated 16.07.2012 passed by the learned Sessions Judge, Nuapada in Criminal Appeal No.03 of 2010, whereby the order of conviction and sentence passed by the learned S.D.J.M, Nuapada in G.R Case
Legal Reasoning
No.105 of 2003/T.R. No.508 of 2003 was confirmed. 2. The petitioner was subjected to prosecution in Nuapada P.S Case No.36(5) of 2003 registered under Sections 379/294/332/34 of IPC corresponding to G.R. Case No.105 of 2003. 3. The prosecution case in brief is that on 22.04.2003 at 5.30 P.M. Forest Guard of Kendubahal beat, namely Muralidhar Kumbhar (P.W.9) while returning after performing patrolling duty from Kendubahal Reserve Forest, on the way at Patalghutukuri road, he detected the accused-petitioners carrying teak logs by felling teak trees from the nearby teak plantation unauthorizedly. P.W.9, the informant intercepted them and attempted to detain for such unlawful act, but the petitioners are alleged to have hurled obscene words and questioned his authority for Page 2 of 13 detaining them. Thereafter, the accused-petitioners assaulted him by means of Tangia and Farsha (axe), as a result which, the informant (P.W.9) fell down and lost his sense. After regaining sense, he went to village and informed the matter to the local gentries, who advised him to take legal action. Hence, he lodged a written report before Nuapada Police Station. 4. On the basis of such allegation, F.I.R. was lodged at Nuapada Police Station on 23.04.2003, which was registered as Nuapada P.S. Case No.36(5) of 2003 under Sections 379/294/332/34 of IPC. After completion of investigation, charge-sheet was submitted against the petitioners for allegedly committing offences under Sections 332/294/34 of IPC and charge were framed against them under those Sections. The petitioners were put to trial. 5. To bring home the charges, the prosecution had examined as many as nine witnesses and exhibited four Page 3 of 13 documents. The injured-informant has been examined as P.W.9. One of the Foresters is examined as P.W.1 and six independent witnesses have been examined as P.Ws.2, 3, 4, 5, 6 & 7. Besides the said witnesses, the Investigating Officer is examined as P.W.8. The plea of defence is that of completely denial. In proof of their plea, no evidence is adduced from the side of the defence. 6. The learned trial Court analyzed the entire evidence on record and found the petitioners guilty of the offence under Sections 332/34 of the IPC and convicted them thereunder and sentenced them to undergo rigorous imprisonment for three months each and to pay a fine of Rs.1000/- each, in default, to further undergo rigorous imprisonment for 15 days each for committing the offence under Section 332/34 of the IPC. 7. Against the judgment of conviction and sentence dated 20.03.2010 passed by the learned S.D.J.M, Nuapada Page 4 of 13 in G.R. Case No.105 of 2003, the petitioners had filed Criminal Appeal No.3 of 2010 before the Court of learned Sessions Judge, Nuapada. 8. The learned appellate Court vide its judgment and order dated 16.07.2012 has dismissed the appeal inter alia stating as under: “10. xxx xxx xxx On scrutiny of the impugned judgment it appears that the lower Court has learned properly appreciated the evidence on record. Further no infirmity or illegality is noticed in the impugned judgment. So far the merit of the case is concerned, similarly with regard to imposition of sentence on the convicts, it is found that the same is neither arbitrary nor excessive, rather the same appears to be a bit lenient, considering the nature and gravity of the offence. That the impugned judgment requires no interference by this Court.” 9. The petitioners have challenged the aforementioned judgment/ order of conviction and sentence in the present Revision Petition. Page 5 of 13
Legal Reasoning
10. Heard Mr. B.K. Behera, learned counsel for the petitioner and Mr. S.R. Roul, learned Additional Standing Counsel for the State at length. 11. Perused the impugned judgment and order of conviction and sentence passed against the petitioners and meticulously evaluated the evidence on record. 12. It appears that in the instant case, the prosecution in order to prove its case, examined nine witnesses. P.W.9 is the injured and informant in the case and he is the vital witness to the prosecution. P.Ws.2 & 6 claims to be the independent witnesses, whereas P.Ws.7 & 8 are the Investigating Officers. 13. In so far as the independent witnesses, namely, P.Ws.2 to 6 are concerned, they have not supported the prosecution case. Therefore, the prosecution strongly relies upon the evidence of P.Ws.7, 8 & 9. Unfortunately the Doctor, who had examined P.W.9/victim, had expired Page 6 of 13 during trial. Therefore, he could not be examined. On the strength of aforementioned ocular testimony of all the witnesses, the trial Court in Paragraph-9 of the judgment records as under: “9. In our present case, P.W.9 is only deposing. No independent witness like P.W.2 to 6 have supported to his vension. But it is not the case of the prosecution that said P.W.2 to 6 were the eyewitness to the alleged occurrence. Rather FIR of p.w.9 vide Ext.2 reveals that soon after the act of assault, he lost his ssense and when her regained, he reported the villagers of Patalthutukuri and on their advice he reported same before police. That means, soon after the occurrence p.w.9 had reported the matter to the villagers like p.w.2 to 6. But it appears from the address of said p.w.2 to 6 that they are the resident of same village where the accused hail from. Therefore, it is not unnatural on the part of p.w.2 to 6 to keep themselves away from the wrath of the accused by the disowning alleged the independent witness often turn hostile for multifarious reasons out of which fear psychosis is one of the root cause. Then often intermingle with the assailant and it is not unnatural on their part to keep mum their knowledge about occurrence. Now-1-days, Page 7 of 13 testimony turning up p.w.2 of an incident which they had direct or indirect knowledge unless they have got any personal interest. In the present case, p.w.9, the Forest Guard, who got injured due to assault by the accused persons. Therefore, is not unnatural as their interest is no way hampered. Further, on close scrutiny of the evidence of p.w.9, it is found that nothing substantial has been elicited during his cross examination to disbelieve him. He was cross examined at longth. But no dent to could be made on his entertain any doubt on him. No animosity or any malice imputed and proved against p.w.9 to falsely implicate the accused persons. Rather the PRF being adjacent to the village of the accused, probablise the occurrence and well neigh reinforces on the truth of the prosecution allegation and varacity of testimony of p.w.9. Moreover, the circumstances of seizure of the blood-stained uniform of p.w.9 by p.w.8 under seizure list Ext.1 well corroborates to the testimony of p.w.9 on the relevant day he was injured. The place of occurrence also clearly suggests that available of any eye witnesses account to same is far and few. P.W.9 belongs victim of hurt is a vital witness for his own case. It is, incrediable on his part to exonerate the reul assailant and falsely implicate the accused persons unless there is any mala fide intention. Therefore, the critical of the Page 8 of 13 defence that solitary evidence of p.w.9 need be discarded owing to lacking of any independent corroboration has got no substance and merit. Rather the testimony of p.w.9 being clear, cogent and inspiring confidence, judging some on the broad probability factors as well as on the circumstance of the case as deposed by p.w.9. Therefore causing hurt to p.w.9 by the accused persons is proved by the prosecution satisfactorily beyond doubt.” 14. The learned trial Court finds the petitioners guilty for committing offences under Section 332/34 of the IPC for which S.I. for three months and fine of Rs.1,000/- has been imposed on them. 15. The petitioners had assailed the aforementioned judgment and order dated 20.03.2010 passed by the learned S.D.J.M., Nuapada in G.R. Case No.105 of 2007/T.R. No.508 of 2003 by filing Criminal Appeal No.3 of 2010 before the Court of learned Sessions Judge, Nuapada. The learned appellate Court vide its judgment dated Page 9 of 13 16.07.2012 affirmed the conviction and sentence passed by the learned trial Court. 16. The appellate Court has observed that although all the independent witnesses, namely, P.Ws.2 to 6 have not supported the prosecution case, but the testimony of P.W.9 could not be ignored, because the evidence of P.W.9 draws corroboration from the evidence of P.Ws.7 & 8. The appellate Court further observed that non-examination of the Doctor, who has examined P.W.9, is not vital to the prosecution as the injury report exhibited as Ext.4 has been proved without objection. Therefore, the appellate Court arrived at the conclusion that after P.W.9 sustained injuries, he lost his sense. P.W.8 being the I.O. of the case, had sent P.W.9 for medical examination by issuing requisition to the concerned Medical Officer. At the time of medical examination of P.W.9, it appears that P.W.9 has informed the Doctor that the accused persons have Page 10 of 13 assaulted him. Therefore, the deposition of P.W.9 that he was assaulted by the accused persons by means of an axe resulting bleeding injury on his leg has been proved on record. The appellate Court therefore, refused to interfere with the judgment and order passed by the learned trial Court. 17. This Court considered both the judgments of the Courts below. The three grounds on which the judgments has been attacked by the petitioners , they are firstly, none of the independent witnesses have supported the prosecution case, secondly, the entire prosecution case based on the testimony of the victim P.W.9 alone and thirdly, in the absence of examination of the Doctor, the injuries sustained by PW 9 could not be proved. Both the Courts below have appreciated the evidence and dealt with the aforementioned three points. Non-examination of the Doctor has been well explained. The Doctor in fact had Page 11 of 13 expired by the time, the trial Court summoned him. However, the medical report was exhibited without there being any objection. The medical report has also stand corroborated by the testimony of P.Ws.7, 8 & 9. Therefore, in my considered view, the prosecution could prove the case beyond all reasonable doubt in so far as the commission of offences under Sections 332/34 of the IPC is concerned. 18. Accordingly, I am not inclined to interfere in this Criminal Revision in so far as the conviction recorded against the petitioners is concerned. However, taking into consideration the fact that the incident took place in the year 2003 and the petitioners have been suffering the prosecution since last more than two decades, I am of the considered view that the sentence needs to be modified. Accordingly, the sentence awarded by the Court below is modified and the petitioners are imposed a fine of Page 12 of 13 Rs.25,000/- ((Rupees Twenty Five Thousand) each in default to further undergo S.I. for a period of one month. Out of the fine amount to be deposited by the petitioners, Rs.40,000/- (Rupees Forty Thousand) to be paid to the victim (P.W.9) being compensation as per the provision of Section 357 of Cr.P.C. 19. The Criminal Revision stands partly allowed and
Decision
disposed of. ………………….. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 15th April, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 17:54:37 Page 13 of 13