The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.452 of 2011 (In the matter of an applications under Sections 401 & 397 of the Criminal Procedure Code, 1973) Giri @ Giridhari Saraf & another ……. Petitioners -versus- State of Orissa ……. Opposite Party For the Petitioners : Mr. J.K. Panda, Advocate For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 16.07.2024 : Date of Judgment: 30 .07.2024 S.S. Mishra, J. The present Criminal Revision filed by the petitioners under Sections 401 & 397 of Cr.P.C. is directed against the judgment and order dated 24.05.2011 passed by the learned Additional Sessions Judge, Bargarh in Criminal Appeal No.14 of 2009, whereby the judgment of conviction and order of sentence passed by the learned S.D.J.M., Bargarh in G.R. Case No.693 of 2004/C.T. Case No.3044 of 2004 has been confirmed. 2. The case of the prosecution in brief is that on 26.09.2004 at 7 A.M. in village – Debahal, while the informant Saraswati Bhoi was brushing her teeth in her house, the accused-Panchanan Saraf suddenly came and by holding her hand pulled her saree for which her modesty was outraged. When the informant called for help, her mother came and protested to which the accused pulled her hair and assaulted her and further pushed her on the ground. Immediately, the brothers of the accused Panchanan Saraf, namely, Giri Saraf and Prakash Saraf joined him and assaulted the mother of the informant. Her father came from the threshing floor and made protest. Accused Giri Saraf brought an axe from the house and gave two to three blows on the head of the father of the informant as a result of which he sustained bleeding injury. In the course of taking out the axe from the hands of the accused, her mother sustained injury on her hand. Further, the accused persons threatened them to kill and abused them in obscene languages. Her father and Page 2 of 9 mother were treated in the hospital. Thereafter, the informant lodged the F.I.R. before the Attabira Police Station on the same day at 10.00 A.M. On the basis of such allegation, the police registered the F.I.R and after completion of investigation, the police submitted the charge sheet against the petitioners under Sections 341/323/324/294/506/354/34 of the IPC. 3. To bring home the charges, the prosecution had examined altogether eight witnesses and exhibited three documents. The plea of defence is that of complete denial. In proof of their plea, no evidence is adduced from the side of the defence. 4. The learned trial Court analyzed the entire evidence on record and found the petitioners guilty of the offences under Sections 354/323/324/34 of the IPC and sentenced them to undergo R.I. for a period of six months each for the offence under Section 354 of the IPC, to undergo R.I. for period of one year each for the offence under Section 324 of the IPC and R.I. for period of three months each for the offence under Section 323 of the IPC and all the sentences were directed to run concurrently. Page 3 of 9 5. Heard Mr. J.K. Panda, learned counsel for the petitioners and Mr. B.K. Ragada, learned Additional Government Advocate. 6. Perused the impugned judgment of conviction and order of sentence passed against the petitioners and meticulously evaluated the evidence on record. 7. The petitioners were subjected to trial for the alleged offences charged under Sections 341/323/324/354/294/506/34 of the IPC. P.W.1 was the informant. P.Ws.2 & 3 are the parents of the informant, P.Ws.4 & 5 were the witnesses; P.W.6 was the Medical Officer, who examined the injured. P.Ws.7 & 8 were the I.Os. in this case. P.Ws.1,2,3 & 4 have deposed that accused Panchanan Saraf caught hold of the hand of the informant (P.W.1) and pulled her saree. P.W.1 specifically stated that accused Panchanan Saraf pulled the saree she was wearing for which she was ashamed and raised hulla. P.W.2 was the witness to the occurrence. She had witnessed the above overt act of the accused. P.W.3 had witnessed that the accused persons were assaulting P.W.1 and P.W.2 to which he protested. P.W.4 had given ample corroboration to the above evidence. Further in the cross-examination, he had explained that he did Page 4 of 9 not try to rescue the victims from the clutches of the accused persons because he felt incapable to do so as the accused persons were three in numbers. So the above evidence implies that the accused persons did the overt act in furtherance of their common intention. P.W.1 simply stated that the accused persons abused them in obscene language and threatened to kill them. The learned trial Court on the basis of the evidence of P.Ws.1,2 & 3, convicted the petitioners under Sections 354/323/324/34 of the IPC and sentenced them to undergo R.I. for a period of six months each for the offence under Section 354 of the IPC, to undergo R.I. for period of one year each for the offence under Section 324 of the IPC and R.I. for period of three months each for the offence under Section 323 of the IPC and all the sentences were directed to run concurrently. 8. Being aggrieved by the judgment of conviction and order of sentence passed by the learned trial court, the petitioners filed common appeal before the learned Additional Sessions Judge, Bargarh being Criminal Appeal No.14 of 2009. The learned Appellate Court vide its Page 5 of 9 judgment dated 24.05.2011 confirmed the conviction and sentence recorded by the learned S.D.J.M., Bargarh. 9. Having failed in their appeal, the petitioners have approached this Court by filing this Criminal Revision Petition. 10. The learned Appellate Court while dealing with all the objections raised by the defence has returned the following finding:- “7. Ext.3 is the Injury Report in respect of P.W.2 i.e. mother of the informant. There is incised wounds found located on the dorsum of her left hand and on the palmer aspect. The case of the prosecution is that she resisted assault by axe on her husband by trying to clutch the axe and consequently sustained injuries on her palm. Incised wounds have surfaced on the dorsum of her left hand and also palmer aspect of her left hand. Location of incised wounds on those area established that the accused persons ere definitely charging her husband P.W.3 by axe with common intention. There is no allegation nor evidence if any weapons of offence was used while assaulting P.W.2. 8. There might be animosity existing between the parties prior to the occurrence the finding in this regard of the learned Court below that animosity is a double edged sword which cuts both sides does not need any interference. It could be ground for false implication as well as it could be a ground for assault.” 11. The unimpeccable and consistent testimony of P.Ws,1, 2, 3 & 4 are stood corroborated with the evidence of the Doctor and other witnesses. There is no doubt that the petitioners are guilty for the Page 6 of 9 offences. I have carefully scrutinised the evidence and found no legal infirmity and perversity in the findings of the Courts below. Therefore, I am in complete agreement with the concurrent findings of the Courts below. Accordingly, I am not inclined to give indulgence to the petitioners insofar as the conviction recorded against them is concerned. 12. Coming to the quantum of sentence, I am of the considered view that the prayer of the petitioners for grant of the benefit of P.O. Act should have been considered in the facts of the present case. However, the learned trial Court had outrightly rejected the prayer of the petitioners for their release under the P.O. Act by inter alia recording as under: “21. The D.P.O, Sambalpur in-charge of Bargarh has submitted the report in respect to the convicts. It has been mentioned there to release the convicts under the provisions of Section 4(3) of the P.O. Act. As already seen, two of the victims are women. The convicts have committed the offence U/s.354 of I.P.C. which is an offence against the women and the same comes under the purview of moral turpitude. Hence, the same appears to be serious in nature. In spite of the protest the convicts did not refrain themselves and again assaulted P.Ws.2 & 3 for which the gravity of the offence appears to be more intensive. Therefore, considering the nature and gravity of the offence it is not deemed appropriate to release the convicts under any of the provisions of the P.O. Act.” Page 7 of 9 13. I find no reason to doubt the conviction recorded against the petitioners for the offences under Sections 354/323/324/34 of the I.P.C. as the prosecution could bring on record clinching evidence to sustain the conviction against the petitioners. Therefore, the present petition fails. However, I am of the considered view that sending the petitioners to custody at this belated stage would serve no purpose because the incident had taken place in the year 2004 and by that time the petitioners were aged about 35 & 30 years respectively and much has changed by now. Therefore, the petitioners are entitled to the benefit of the P.O. Act. The petitioners have already undergone the substantive sentence. The Court below has awarded the sentence of one year of R.I. each. Therefore, I am inclined to modify the sentence imposed against the petitioners to that of the sentence already undergone. However, this Court is imposed to pay fine of Rs.3,000/- (Rupees Three Thousand) on each of the petitioners, in default of payment of fine by the petitioners, they will undergo further R.I. for one month each. The fine of Rs.3,000/- each to be deposited by the petitioners shall be disbursed to the victims as per the provision of Section 357 of Cr.P.C as compensation. Page 8 of 9 14. The Criminal Revision is accordingly partly allowed and disposed of in the aforesaid terms. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 30th July, 2024/Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA,CUTTACK Date: 30-Aug-2024 12:06:36 Page 9 of 9