The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 396 of 1993 (An appeal under sub-Section (2) of Section 374 read with Section 382 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction passed by learned Sessions Judge, Dhenkanal- Angul in S.T. Case No.39 D of 1989) --------------- AFR Khetra Mohanty and another ...… Appellants -Versus- State of Odisha ...... Respondent Advocate(s) appeared in this case: _______________________________________________________ For Appellants : M/s. Samir Kumar Mishra, J. Pradhan, P.S. Mohanty & S. Sethi, Advocates. For Respondent : Mr. S.K. Mishra, Addl. Standing Counsel _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 6th April, 2023 The appellants challenge the judgment of conviction and sentence passed on 10.12.1993 by learned Sessions Judge, Dhenkanal-Angul in S.T. Case No. 39 D of 1989, whereby they were convicted under Sections 326/34 Page 1 of 9 of IPC and sentenced to undergo R.I. for 3 months. Be it noted that the appellant No.2 Tripura Mohanty has died in the meantime, for which his appeal stands abated. 2. The prosecution case is that a dispute arose between the appellant and the co-accused persons on one side and the family of the informant, Ashok Kumar Mohanty and his family members on the other relating to a passage leading to the well situate near their lands. Because of a construction of a fence over a portion of the said land there was altercation between both members of the family, which led to a tussle and ultimately a full- fledged battle ensued between them in course of which, both parties are said to have assaulted each other with weapons, like axe and crowbar etc. On a written report being lodged by Ashok Kumar Mohanty before the Samal Barrage Police Station, P.S. Case No. 28/1988 was registered under Sections 307/109/34 of IPC followed by investigation. Upon completion of investigation charge sheet was submitted under Sections 302/307/109/323 /324/325/34 of IPC against the appellant and Tripura Page 2 of 9 Mohanty as one of the injured-victims namely, Golekha Mohanty succumbed to the injuries. 3. The accused took the plea of denial and further that the informant and his family members were the aggressors, who had inflicted grievous injuries on their person. 4. To prove its case, the prosecution examined 17 witnesses, out of whom, the informant was examined as P.W.-2. The other injured, namely, Kishore Kumar Mohanty was examined as P.W.-15. The doctor, who examined the injured persons from the side of the informant, was examined as P.W.-1. The doctor, who examined some of the injured persons, was examined as P.W.-13. He also conducted post-mortem examination on the dead body of Golakha Mohanty, deceased. The doctor, who also examined some of the injured including the accused, Khetrabasi and Tripura, was examined as P.W.-16. P.W-17 is the I.O. The prosecution also proved 21 documents from its side. The defence, on the other hand examined 3 witnesses including the appellant as D.W.-3. Further, the defence also proved five documents. Prosecution also Page 3 of 9 proved one material object, namely, the crowbar allegedly used by the accused, Tripura to inflict injuries on the deceased. 5. The Court below after appreciating the evidence and on consideration of the rival submissions in detail found that there is no evidence to bring home the charge under Section 302 IPC or Section 307 of IPC. However, from the unrebutted evidence, it was clearly established that the accused- appellant and Tripura Mohanty had assaulted the injured persons causing grievous hurt to them. On such findings, the accused-appellants were convicted and sentenced as aforesaid. 6.
Legal Reasoning
Heard Mr. Samir Kumar Mishra, learned counsel for the appellant and Mr. Sangram Keshari Mishra, learned Addl. Standing Counsel for the State. 7. Mr. Samir Kumar Mishra has assailed the impugned judgment on the ground that the Court below has not taken into consideration the fact that the accused persons had themselves sustained grievous injuries on their bodies including on vital parts. Moreover, the reasonable supposition that the accused persons may have Page 4 of 9 acted in-exercise of their right of private defence was not considered in the proper perspective by the trial Court. That apart, there is clear evidence of a prior civil dispute between the partis, which led to the quarrel. The occurrence therefore, took place in the heat of the moment without any intention. Mr. Mishra alternatively submits that even if it is accepted for the sake of argument that the conviction does not warrant any interference, still the fact that the occurrence took place more than 35 years ago and there is clear evidence of the accused himself having sustained grievous injuries, no further punishment should be imposed. Mr. Mishra therefore, contends that the accused – appellant should be released under the provisions of PO. Act. 8. Per contra, Mr. S.K. Mishra, learned Addl. Standing Counsel for the State contends that the evidence of the prosecution witnesses regarding the assault, the weapons used and the injuries sustained by the injured persons is clear, consistent, cogent and fully credible. The trial Court has taken pain to appreciate the evidence on record in detail. The contentions raised on behalf of the Page 5 of 9 appellant are not such as would nullify the findings of the trial Court based on clear evidence. 9. This Court finds that the occurrence is not denied as such, inasmuch as the accused persons themselves claim to have sustained injuries being allegedly inflicted by the family members of the informant. Thus, their presence at the spot is not in dispute. The fact that the accused persons assaulted the members of the informant’s family and caused injury is further proved from the evidence of the injured witnesses themselves namely, P.W.-2 and P.W.-15. Their version is corroborated by the version of the two doctors namely, P.W.-1 and P.W.-16. The Court below has taken note of some contradictions present in the version of the witnesses but only to discard them and, according to this Court, for justified reasons. It is borne out from the evidence of P.W.-15 that when his father, deceased Golakha Mohanty tried to intervene and rescue P.W.-2 from further assault, accused Khetra Mohanty struck blows by means of axe on his head, arm and back resulting in bleeding injuries. There are similarly Page 6 of 9 other evidence relating to the specific overt acts committed by the accused. 10. Considering the evidence on record and the settled position of law that death must have been occasioned on account of the act committed by the accused and that such act must have been committed with intention to put the deceased to death or with intention to cause such injuries as would cause death, the Court below found that the evidence on record does not suggest so. It was further held that the injures on the deceased and P.W.-15 are located in inconsequential parts of their bodies. The court below also took into account the evidence of autopsy surgeon P.W.-13 that the death of the deceased had occurred on account of exhaustion resulting from septicemia, which was a complication arising out of the injuries. It also specifically took note of the evidence of the doctor that the injuries found on the deceased are not sufficient to cause death in ordinary course of nature rather, death was due to septicemia, i.e. blood poisoning. On such findings and relying upon a decision of this Court in the case of Samsuddin Khan and others vs. State Page 7 of 9 reported in (1991) 4 OCR 380, the trial Court held that the accused can nevertheless be held guilty of the offence under Section 326 of IPC. 11. After independently scanning the evidence on record, particularly that of the informant, Ashok Kumar Mohanty, the Autopsy Surgeon (PW.-13) and the other injured, Kishore Kumar Mohanty (P.W.-15), this Court is persuaded to fully concur with the findings of the trial Court. In fact, this Court has found no justified reason to differ with the reasoning adopted by the trial Court in holding the accused guilty of the offence under Sections 326/324 of IPC. 12. As to the alternative submission of Mr. Samir Kumar Mishra that the occurrence having taken place nearly 35 years ago it would be too harsh to send the accused to prison to serve the remaining part of his sentence given his present age, this Court finds that the occurrence took place way back on 24.10.1988. The accused was aged about 32 years at that time which makes him 67 years at present. He was on bail for some time during trial. No criminal activity post the occurrence has Page 8 of 9 been reported against him. There is also clear evidence to show that the petitioner himself sustained grievous injuries on vital parts of his body because of the assault by the members of the informant family. Thus, taking an overall consideration of the above facts, this Court is of the considered view that ends of justice would be served if the sentence is modified to the period already undergone instead of directing the appellant to serve the remaining part of his sentence at this distance of time. 13. In the result, the appeal is allowed in part. The impugned judgment of conviction is maintained. The sentence is however, modified to the period already undergone. ………..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 6th April, 2023/ A.K. Rana Page 9 of 9