The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.931 of 2011 (In the matter of an application under Sections 401 & 397 of the Criminal Procedure Code, 1973) Kailash Behera @ Kaia ……. Petitioner -Versus- State of Odisha ……. Opp. Party For the Petitioner : Mr. S.C. Mohapatra, Senior Advocate &
Legal Reasoning
Mr. B.K. Dash, Advocate For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 16.04.2024 : Date of Judgment: 20.06.2024 S.S. Mishra, J. The present Criminal Revision filed under Sections 401 & 397 of Cr.P.C. is directed against the judgment and order dated 03.11.2011 passed by the learned Ad hoc Addl. Sessions Judge, FTC-I, Cuttack in Criminal Appeal No.54 of 2009, whereby the order of conviction was affirmed and sentence passed by the learned S.D.J.M (S), Cuttack in G.R. Case No.632 of 1997/T.R Case No.364 of 2007 was modified to one of fine only. 2. The petitioner was subjected to prosecution in G.R. Case No.632 of 97/T.R. Case No.364 of 2007 registered under Sections 353/294/506 of the IPC. 3. The prosecution case in brief is that on 10.04.1997 the informant (P.W. 4) along with other Excise Constables had been to the court of learned J.M.F.C.(R), Cuttack to produce an accused Radhu Behera, father of the petitioner. It was alleged that at about 1.10 P.M., the petitioner, who happens to be the son of the accused Radhu Behera came to the court premises and abused the informant in obscene language and threatened to kill him by means of a knife. Thereafter, the petitioner dealt a neck push to the informant, for which he fell down. On the basis of such allegation, F.I.R. was lodged at Lalbag Police Station, Cuttack. After completion of investigation, charge-sheet was submitted against the petitioner under Sections 353/294/506 of IPC and charges were framed against him under those Sections. The petitioner was put to trial. Page 2 of 8 4. To bring home charges, the prosecution examined as many as seven witnesses including the informant as P.W.4. P.Ws.1, 5 and 6 were three Excise Constables examined, two court staff examined as P.Ws.2 and 3, all were claimed to be the eye witnesses and I.O was examined as P.W.7. Besides examining the above-named witnesses, the prosecution also exhibited four documentary evidence, such as, F.I.R. (Ext.1), Command Certificate (Ext.2), seizure list (Ext.3) and formal F.I.R. (Ext.4). The plea of defence is that of completely denial. In proof of his plea, defence examined none. 5. The learned S.D.J.M (S), Cuttack analyzed the entire evidence on record, found the accused person/petitioner not guilty for the offences under Sections 294/506 of the IPC and acquitted him from the said charges but the petitioner was found guilty for commission of offence under Section 353 of the IPC and sentenced him to undergo simple imprisonment for one year. 6. The judgment of conviction and order of sentence dated 14.10.2009 passed by the learned S.D.J.M. (S), Cuttack in G.R Case No.632 of 1997/ T.R No.364 of 2007 was called in question by filing Criminal Appeal No.54 of 2009 before the Court of learned Ad hoc Addl. Sessions Judge, FTC-I, Cuttack, by the petitioner. Page 3 of 8 7. The petitioner has challenged the judgment/order of conviction and sentence passed by both the Courts below in the present Revision Petition. 8. Heard Mr. S.C. Mohapatra, learned Senior 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. Although the petitioner was subjected to trial for the alleged offences under Sections 294/506/353 of the IPC but the trial Court went on to acquit the petitioner for the offences under Sections 294 & 506 of the IPC by disbelieving the ocular testimony of all the witnesses. However, the trial Court has convicted the petitioner for the alleged offence committed by him under Section 353 of the IPC. Relevant would be to reproduce the judgment of the learned trial Court in so far as recording of conviction against the petitioner for the offence under Section 353 of the IPC is concerned. “11. It is consistence evidence of the witnesses that on 10.04.1997, Radhu Behera was forwarded to the Court of JMFC (R), Cuttack and the accused pushed P.W.4 and he fell down. The command certificate (Ext.2) leans support to the claim of P.W.1, 4, 5 and 6 that they were entrusted to forward Radhu Behera as per the direction of the I.E., District Mobile in P.R. No.1/97-98. So, they were in official duty and the aforesaid witnesses are also public servants within the meaning of Section 21 of the I.P.C. It is also not challenged by the defence that the aforesaid Page 4 of 8 witnesses are not public servants. It is also the evidence of the witnesses that the accused Kailash Behera is the son of Radhu Behera, who was forwarded to the Court vide P.R. No.1/97-98 and he dealt push blow to the informant, for which, the informant fell down. So, the act of the accused amounts to deter the public servant in due discharge of his official duty. PW7, the IO, also in his evidence, has deposed that he seized the command certificate on 10.04.1997 on production by the informant and prepared seizure list. P.Ws. 2 and 3 do not support the case of the prosecution and it is of no consequence since P.Ws. 1, 4, 5 & 6, in their evidence, categorically stated that the accused dealt a push blow on the informant. Though the witnesses have been exhaustively cross-examined by the defence, the substratum of the evidence cannot be shaken by the defence that the accused had not deterred the informant in his due discharge of official duty. So, the prosecution has successfully proved the offence u/s. 353 IPC against the accused.” The appellate Court concurred with the finding of the trial court in so far as the conviction U/S. 353 IPC is concerned. The appellate Court in para-11 records the following findings:- “However it can be seen from the material on record, the circumstance in which the appellant applied force is that he was intolerant to the arrest of his father and failing to check his emotion acted in an abnormal manner. But had the convict really any criminal intent to play mischief he could have come prepared for violence which obviously he has not done. Simply dealing a push and expressing anger by abusing the constables only shows his frustration which came due to his helplessness in dealing with the situation. So in such a circumstance sentencing the convict to S.I. for one year would be improper. An amount of fine only would teach him a proper lesson and would be proper in the interest of justice. Hence while maintaining the conviction reached by the learned lower court, the sentence is modified Page 5 of 8 to one of fine only. Accordingly the convict appellant is sentenced to pay fine of Rs.1,000/- i.d. to S.I. for two months.” 10. I have analyzed the evidence brought on record by the prosecution to bring home the charges under Sections 294, 506 & 353 of the IPC. No interference is called for in so far as recording of acquittal in favour of the petitioner for the offences under Sections 294 & 506 of the IPC are concerned. The conviction recorded by the Court below for the offence under Section 353 IPC stands on very weak legs for the following reasons:- First of all, the prosecution has miserably failed to prove the place of occurrence in the instant case. All the witnesses are official witnesses, particularly from the Excise Department. Even then, the testimonies of those witnesses are quite contradictory. P.W.4, who had taken the father of the petitioner to produce in the Court, deposed that he had taken the father of the petitioner to the Court of the J.M.F.C. (R), Cuttack whereas the other witnesses had deposed that the incident had taken place in the Court of the learned S.D.J.M. (S), Cuttack. This further creates a doubt as the Command Certificate Exhibit-2 marked by the prosecution narrates a different story. The time of occurrence is also doubtful. Page 6 of 8 11. Two independent witnesses namely P.Ws. 2 & 3, who were the Court staff and eye witnesses to the occurrence, did not support the prosecution case. Therefore, the prosecution is only relying upon the testimony of the official witnesses those who have been termed by the defence as interested witnesses. 12. No documents were produced by the prosecution to lend support to the fact that the father of the petitioner was taken to the Court for forwarding him in a case pertaining to offence under Excise Act except narration of the facts in the F.I.R., which could not be proved. The Courts below have also glossed over a vital issue that the Command Certificate Exihibit-2 did not bear the endorsement of the Court as per the testimony of P.W.4. The time of arrival at the Court found mentioned at 5.30 P.M. and departure appears to be at 6 P.M. whereas the occurrence time as per the prosecution story is at 1.10 P.M. Therefore, if the time gap is taken into consideration vis-à-vis the place of occurrence, the prosecution story directly falls flat and could not inspire confidence to maintain the conviction. 13. Taking into consideration the aforementioned, I am of the considered view that the prosecution has failed to bring home the charges levelled against the petitioner regarding the offence under Section 353 of the IPC as well. Therefore, the Courts below ought to have recorded an acquittal in favour of Page 7 of 8 the petitioner in so far as the offence under Section 353 of the IPC is concerned besides the offence under Sections 294 & 506 of the IPC. 14. In that view of the matter, I set aside the judgment dated 14.10.2009 passed by the learned S.D.J.M. (S), Cuttack in G.R Case No.632 of 1997/ T.R No.364 of 2007 and judgment and order dated 03.11.2011 passed by the learned Ad hoc Addl. Sessions Judge, FTC-I, Cuttack in Criminal Appeal No.54 of 2009 in so far as recording of the conviction against the petitioner for the offence under Section 353 of the IPC is concerned and thereby the petitioner is acquitted for the said offence as well. Bail bond furnished by the petitioner and the surety stands discharged. 15.
Decision
The CRLREV is accordingly disposed of. ………………… (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 20th June, 2024/Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 28-Jun-2024 16:55:55 Page 8 of 8