The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.810 of 2013 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Donga Hari @ D. Hari ……. Petitioner -versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. D.K. Mishra, Amicus Curiae For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 02.08.2024 : Date of Judgment: 29.10.2024 S.S. Mishra, J. The present Criminal Revision, filed by the petitioner under Section 401 read with Section 397 of Cr.P.C., is directed against the judgment and order dated 19.08.2013 passed by the learned 2nd Additional Sessions Judge, Berhampur, Ganjam in Criminal Appeal No.02 of 2012, whereby the judgment of conviction and order of sentence dated 01.05.2010 passed by the learned J.M.F.C., Patrapur (Ganjam) in G.R. Case No.97 of 2007 corresponding to T.R. No.213 of 2008 has been confirmed. 2. Since none appeared for the petitioner consistently on many hearings, this Court vide its order dated 25.07.2024, appointed Mr. Dillip Kumar Mishra, Advocate as Amicus Curiae in this case to assist this Court. Mr. Mishra has assisted this Court in the capacity of Amicus Curiae and presented the case of the petitioner very effectively. 3. The case of the prosecution, in brief, is that, on 01.08.2007 at about 7 P.M., while the informant, his father and sister were sitting on their veranda, the petitioner, his mother and sister threatened the father of the informant by saying that they would cut the ridge and divert water to their land. As the father of the informant sharply reacted, the petitioner abused him in filthy language and thereafter, assaulted him by a ‘lathi’, the other co-accused persons followed the main accused to assault. The informant and his sister rescued the injured and shifted him to the hospital for treatment and thereafter, lodged a report before the Jarada Police Station. Page 2 of 9 4. Basing upon such written report, the police registered the F.I.R. as Jarada P.S. Case No.75 of 2007 and took up an investigation. After the completion of investigation, charge sheet was filed. The petitioner, along with the other two co-accused persons, stood charged for the commission of offences punishable under Sections 341/294/ 325/506/34 of the IPC. 5. To bring home charges, the prosecution had examined altogether ten witnesses and exhibited couple of documents. P.W.1 is the informant, whereas P.W.2, is the father of the informant and the victim in the instant case. P.Ws.3 & 4 are the sisters of the informant. Therefore, P.Ws.1 to 4 are related to each other. P.Ws.5, 6 & 7 are the co-villagers, who were examined by the prosecution as post-occurrence witnesses. However, all the three witnesses have resiled from their earlier statements made before the police under Section 161 of Cr.P.C. and did not support the prosecution. P.W.9 was the most crucial witness and he was the Doctor, who medically examined P.W.2, the victim, on requisition of P.W.8, the I.O. of the case. Page 3 of 9 6. Since the independent witnesses to the occurrence and seizure witness have turned hostile to the prosecution, the prosecution has only relied upon the testimony of P.W.2, the informant and the children of P.W.2 being the son, P.W.1. and the daughters, P.Ws.3 & 4, respectively. The prosecution tried to draw corroboration from the evidence of P.W.9, the Doctor, who examined the victim. The learned trial Court, while dealing with the stance put forth by the accused persons, has returned the following finding: “In this case the defence version cannot be accepted at all because none of the witness has stated anything is respect of the alleged occurrence at all. All have stated that it is not possible to cut the canal hudda by any means and nothing happened between the parties on 2.8.07. It is nobody’s case that on 2.8.07 something happened near the canal road or canal hudda of village Nandarajpur. The F.I.R. reveals that the occurrence took place on the village road of Nandarajpur when the accused persons said that ‘Chala Canal Huddearu Pani Aniba’ (In oriya). To this P.W.2 protested resulting in the instant occurrence. So whom nothing happened near canal Hudda, the defence evidence looses its significance in establishing that it is not possible to the canal hudda. Rather it strengthens the case of prosecution that it was not possible even to cut the canal hudda which is made of concrete road, then why at all the accused persons would attempt it first by saying so. So on a careful scrutiny of evidence led by the defence I hold none of the defence witnesses are reliable at all. In this case the prosecution has well proved that Hari assaulted Sridhara by ‘Lathi’ causing split laceration of size 1 ½” x ½” x ½” over parietal scalp. It is well proved that Padma and Papa assaulted Sridhara by ‘Lathi’ causing fractured injury on his right forearm. As I have already Page 4 of 9 discussed her-in-above, the F.I.R. story has been corroborated by oral as well as documentary (medical) evidence. Hence, I hold that prosecution have proved beyond all reasonable doubt that all the accused persons are the author of the crime and have assaulted Sridhara causing grievous injury like fracture to his right forearm. Hence I hold the accused Padma and Papa are liable for the offences U/s.325 IPC and convict them thereunder. So now it reminds to be examined that the accused persons had common intention to commit crime. Law is well settled that direct evidence regarding common intention is hardly available on record because one cannot enter a person’s mind to scan whether he had intent to commit any crime or not. More often than not evidence regarding common intention can be gathered from the circumstances attending the occurrence. In this case all the accused persons armed with ‘Lathi’ have assaulted P.W.2. Before that there was argument regarding fetching of water from Canal to land and regarding cutting of canal between the sides. So there is sufficient preparation and meeting of mind on behalf of the accused persons in committing the instant crime. So I hold all the accused persons had requisite common intention and prior meeting of mind before committing the act.” 7. After analyzing the entire evidence on record, the learned trial Court, while acquitting the petitioner on all the counts, convicted him for the offence under Section 325 of the IPC. The co-accused persons were also convicted for the offence under Section 325 of the IPC under the aid of Section 34 of the IPC. Accordingly, they were sentenced to undergo S.I. for a period of two years and to pay a fine of Rs.500/-, in default of payment of fine, to undergo further S.I. for period of fifteen days. Page 5 of 9 8. Aggrieved by the judgment of conviction and order of sentence dated 01.05.2010 passed by the learned J.M.F.C., Patrapur (Ganjam) in G.R. Case No.97 of 2007, the accused persons, including the present petitioner, filed Criminal Appeal No.2 of 2012 before the learned 2nd Additional Sessions Judge, Berhampur, Ganjam. 9. The learned appellate Court vide its judgment dated 19.08.2013, allowed the appeal qua the co-accused persons, however, dismissed the appeal of the present petitioner. The reason behind convicting the present petitioner in the said judgment has been reflected in Paragraphs-6 & 7, which reads as under: xxx “6. Learned Additional Public Prosecutor argued that there is nothing illegality in the judgment of the learned lower Court and the evidence has been correctly appreciated. The injured was examined by the Doctor and found the following injuries: xxx xxx One split laceration of size 1 ½ x ¼ x ¼ inch i. parietal scalp. ii. One swelling of right forearm, and the opinion was reserved for X-ray examination. iii. Bruise of size 1 inch x inch on left forearm. 7. It is one lathi/thenga used to beat Agadhi Sridhara. It is not possible for other two lady accused persons to beat the said injured with the same thengal/lathi. The appellant attacked the injured informant at his house; the manner of attack shows that there is no common intension as they were going to cut the ridge of canal. The evidence of the witnesses relating to the thenga or lathi is not material for consideration, as both can be used to Page 6 of 9 cause injury. The place of assault has lost its importance as the injured and the eye witnesses are consistent relating to the place and nature of injuries. The time of incident and discrepancies in the evidence pointed out by learned Advocate for the defence area likely to arise as there is delay in the trial, but there is sufficient evidence for the conviction of an accused Donga Hari, conclusion arrived at by the learned J.M.F.C., Patrapur is correct. Hence, the provision of P.O. Act is not applicable to the present convict. There is nothing illegality, impropriety and irregularity in the order of conviction and sentence of convict Donga Hari and his conviction is confirmed. The nature of injury caused to the injured A. Sridhara is quite serious that is fracture of right hand and he was attacked in front of his house. Hence, the order.” 10. Having failed in his appeal, the present petitioner has approached this Court by filing the present revision petition. 11. Mr. D.K. Mishra, learned Amicus Curiae appearing for the petitioner, submitted that P.W.2, the victim, had received three injuries. Insofar as injury nos.1 and 3 are concerned, those were stated to be simple in nature, whereas injury no.2 was grievous in nature. This is emanate from the evidence of P.W.9. The appellate Court has emphasized the testimony of P.W.9, to convict the petitioner for commission of offence under Section 325 of the IPC. 12. I have perused the record and the evidence of P.Ws.1, 2, 3 & 4. It is apparent from the record that the grievous injury, i.e., injury no.2 Page 7 of 9 caused by the accused to the victim is definitely not caused by a ‘lathi’ blow. It is the case of the prosecution that the petitioner was armed with a ‘lathi’. Therefore, the grievous blow caused to the victim was definitely not the blow given by the present petitioner. Insofar as the two simple injuries are concerned, that could be attributed to the petitioner. Therefore, insofar as the conviction of the petitioner of the offence under Section 325 of the IPC is concerned, I am of the considered view that the same borne from the evidence on record. This Court finds the petitioner guilty of commission of offence punishable under Section 323 IPC instead of Section 325 of the IPC. Accordingly, the conviction recorded by the learned Courts below against the petitioner for commission of offence punishable under Section 325 of the IPC is altered to that of offence punishable under Section 323 of the IPC. 13. In view of the aforementioned conviction recorded against the petitioner, the sentence is also to be varied. 14. It appears from the record that the petitioner has already undergone for some period in custody. Therefore, the sentence of the petitioner is altered to that of the sentence he has already undergone. Page 8 of 9 However, the fine of Rs.500/- imposed against the petitioner by the learned trial Court for commission of offence punishable under Section 325 IPC is increased to fine of Rs.10,000/- (Rupees ten thousand), in default of payment of fine, the petitioner shall undergo S.I. for a period of fifteen days. The fine amount to be deposited by the petitioner shall be disbursed to the victim (P.W.2) as compensation under the provision of Section 357 of Cr.P.C. 15. This Court appreciates the effective assistance rendered by Mr. Dillip Kumar Mishra, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,000/- (Rupees Seven Thousand) to be paid by the State as a token of appreciation.
Decision
16. The CRLREV is accordingly disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 29th of October, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Designation: Secretary Reason: Authentication Location: HIGH COURTOFORISSA,CUTTACK Date: 18-Nov-2024 12:07:11 Page 9 of 9