The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.590 of 2014 (In the matter of an application under Section 401 read with Section 396 of the Criminal Procedure Code, 1973) Smt. Maya Behera ……. Petitioner -Versus- State of Odisha ……. Opposite Party For the Petitioner : Mr. Bijaya Ku. Behera-1, Advocate For the Opp. Party : Mr. B. K. Ragada, Additional Government Advocate CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 27.06.2024 :: Date of Judgment: 16.07.2024 S.S. Mishra, J. 1. The present Criminal Revision filed under Sections 401 and 396 of Cr.P.C. is directed against the judgment and order dated 02.08.2011 passed by the learned 1st Additional Sessions Judge, Berhampur in Criminal Appeal No.62/2010 (CRLA No.90/2007 GDC), whereby the judgment of conviction and order of sentence passed by the learned J.M.F.C., Patrapur in G.R. Case No.21 of 2003 has been confirmed. 2. The petitioner was subjected to prosecution in Jarada P.S. Case No.15 of 2003 for the offence punishable under Sections 294/326 of I.P.C. 3. The prosecution case in brief is that, on 16.02.2003 at about 7.00 A.M., the present petitioner being the accused constructed a temporary ridge on the danda, as a result of which, the water could not get drained out. When the wife of the informant came out from the house and opposed to construct the ridge, the accused uttered in obscene language and assaulted her by means of wooden plank, as a result of which her left eye was damaged. Thereafter, she was brought to Patrapur medical and subsequently referred to Somepetta medical. It was further alleged that due to the medical treatment of his wife, the informant lodged the F.I.R. belatedly. The informant lodged a written report before the O.I.C., Jarada P.S. against the petitioner which was registered as Jarada P.S. Case No.15 of 2003 for the offence punishable under Section 326 of I.P.C. During Page 2 of 9 investigation, the I.O. visited the spot, examined the informant, witnesses, issued injury requisitions in favour of the injured for medical treatment, seized the flat bamboo and bed head ticket of the injured. After completion of investigation, the I.O. submitted the charge-sheet against the petitioner for the offences under Sections 294/326 of I.P.C. 4. Heard Mr. Bijaya Kumar Behera, learned counsel for the petitioner and Mr. B. K. Ragada, learned Additional Government Advocate for the State. 5. To bring home charges, the prosecution had examined 12 witnesses. Out of them, P.W.7 was the informant in this case, who was the husband of P.W.1, the injured. PWs. 2, 5, 6, 8 and 9 were the witnesses to the occurrence, whereas P.Ws.3 and 4 were the witnesses to the seizure. P.W.10 was the Medical Officer, who examined P.W.1. P.W.12 was the independent witness and P.W.11 was the I.O. in this case. 6. P.Ws.1 & 7 were very consistent and were corroborated by the evidence of all other witnesses. The seizure of the weapon of offence had also been proved on record through the evidence of P.Ws.3 & 4. P.Ws.5 & 6 had also disclosed in their testimony that P.W.1 was assaulted by the Page 3 of 9 accused-petitioner, resulting in the injury causing damage to the left eye of the P.W.1. P.W.10, the doctor who examined P.W.1, the injured had stated in his testimony that he had found three injuries sustained by P.W.1. Out of which, injury No.1 was simple but other injuries on the left eye of the victim were grievous in nature. 7. Taking into consideration the evidence in its entirety, the learned trial Court convicted the petitioner for the offence under Section 326 of I.P.C., however, acquitted her for offence under Section 294 of I.P.C. While awarding the sentence to the petitioner, the learned Trial Court was very lenient because the accused-petitioner is a lady of 40 years and in a spur of moment, the incident had taken place. Therefore, the learned trial Court sentenced the petitioner to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/-, in default, to undergo further S.I. for thirty days. 8. The judgment of conviction and sentence dated 17.08.2007 passed by the learned J.M.F.C., Patrapur in G.R. Case No.21 of 2003 was called in question by filing Criminal Appeal No.62 of 2010 (CRLA No.90/2007 GDC) before the Court of learned 1st Additional Sessions Judge, Page 4 of 9 Berhampur by the petitioner. The learned Appellate Court meticulously dealt with the evidence recorded by the prosecution and appreciated the judgment of the trial Court. While confirming the conviction and sentence awarded by the Court below on 02.08.2011, the learned Appellate Court inter alia observed as under:- <6. No doubt in this case the voluntariness of making a permanent loss of the eye sight of the victim was not the intention of the appellant, but it was an act not intended to, by the appellant. But at the same time this court finds, that the manner of evidence adduced from the side of the prosecution witnesses do not spell out of any circumstance that a provocation was given to the appellant, for which she assaulted the victim and for the same caused permanent disablement of a limb. But it may be caused in course of committing the offence and assault to the victim. So the action which has been well proved by the prosecution witnesses against the appellant, it cannot be said that it was a reckless action or an action committed out of grave and sudden provocation. Because in this case the appellant was found to have been armed with one split wood and she used the same on the head of the victim which hit on the upper eye lid of the victim just above her left eye. So, it can be ascertained and gathered from the manner of assault, that the assault given by the appellant was intentional and voluntary to the head of the victim which hit on the eye of the Page 5 of 9 there course victim causing permanent disablement of the sight. Of are negligible discrepancies, which do not put at the root. 7. Now remains, if the evidence adduced from the side of the prosecution suffers from any infirmity or there has been any discrepancy occasioned for which the court can differ on the conclusion of the learned court below. In this regard the ocular evidence adduced by the eye witnesses to the occurrence and opined by the medical officer and his report and also who has examined the victim, since categorically manifests that the victim was received in the hospital with injuries and on examination it was found that she has lost sight of her left eye for the injury as found on her left side of forehead above the eye. Since in permanent disablement, which resulted in any hurt or injury, according to the I.P.C. is grievous and in the definition, the injury in question reflects the nature. In this case, the victim has lost her eye sight of the left eye, which was ultimately operated. That means it was severed from the main organ. So, there is no infirmity in the appreciation of the evidence by the learned court below.= 9. Having failed in her appeal, the petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. Page 6 of 9 10. Perused the impugned judgment of conviction and order of sentence passed against the petitioner and meticulously evaluated the evidence on record. 11. I have gone through the record and analyzed the impugned judgments in the light of the evidence brought on record by the prosecution. I am in complete agreement with the judgments of the Courts below as far as the recording of conviction against the petitioner for the offence under Section 326 of I.P.C. is concerned. The evidence of P.Ws.1 & 7 read with evidence of other witnesses led by the prosecution are unimpeachable in nature as such trustworthy. Hence, the petitioner cannot escape from the conviction since recorded by the Courts below. In that view of the matter, the Revision Petition insofar as recording of conviction against the petitioner for charges punishable under Section 326 of I.P.C. has failed. 12. At this stage, Mr. Behera, learned counsel for the petitioner submits that in view of the fact that the incident had taken place way back in the year 2003 and the petitioner being a lady, prays that the benefit of Probation of Offenders Act may be extended to her. Page 7 of 9 13. I have perused the record and found that the petitioner was initially arrested on 22.02.2003 and was released on bail on 15.03.2003. After conviction, the petitioner was again arrested on 15.07.2014 and released on bail on 06.08.2014. Therefore, out of the total sentence of six months S.I. awarded to the petitioner, she has already undergone about two months sentence. In that view of the matter, the prayer of the petitioner deserves merit. The petitioner in my considered view is covered by the ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp- II) OLR 469. 14. In such view of the matter, the present Criminal Revision in so far as the conviction is concerned is turned down. But instead of sentencing the petitioner to suffer imprisonment, this Court directs the petitioner to be released under Section 4 of the Probation of Offenders Act for a period of six months on her executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the petitioner shall keep peace and good behavior and she shall remain under Page 8 of 9 the supervision of the concerned Probation Officer during the aforementioned period of six months.
Decision
15. The Criminal Revision is accordingly disposed of. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 16th July, 2024/ Swarna, Sr. Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 22-Jul-2024 14:25:19 Page 9 of 9