Criminal Appeal No. 21 of 2007 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.929 of 2013 (In the matter of an application under Sections 401 & 397 of the Criminal Procedure Code, 1973) Gokula Kumar Martha & another ……. Petitioners -Versus- State of Odisha ……. Opp. Party For the Petitioner : Ms. D. Mohapatra, Advocate For the Opp. Party: Mr. P. K. Maharaj, Addl. Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 08.04.2024 :: Date of Judgment: 15.04.2024 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 23.09.2013 passed by the learned Additional Sessions Judge, Bhanjanagar in Criminal Appeal No.21 of 2007, whereby the order of conviction and sentence passed by the learned Assistant Sessions Judge, Bhanjanagar
Legal Reasoning
in S.T. Case No.6 of 2004 was confirmed. 2. The petitioner was subjected to prosecution in Badagada P.S Case No. 50 of 2003 registered under Sections 294/307/34 of IPC. 3. The prosecution case in brief is that the accused persons are related as father and sons. They belong to village Badagada. The informant Sibarama Dauka is their co-villager. Allegedly the accused persons have a house constructed over a Government land, in front of which the informant had placed a wooden cabin for vending tea. On 13.05.2003 as per the order of the concerned Tahasildar, the cabin of the informant was demolished. On 14.05.2003 in the morning, the informant while collecting the wooden planks of the cabin which was demolished during the course of eviction by the Tahasildar, the accused persons were staked bricks over the land where the cabin of the informant had been placed. When the informant asked them to wait till he removed all the Page 2 of 12 planks of the broken cabin, they got annoyed. Accused Sanatana Martha while arguing with the informant, the petitioners brought deadly weapons and attacked the informant suddenly and abused him in obscene languages. Then petitioner no.2 raised sword to assault on his head. When the informant obstructed, the sword hit his right hand. He sustained bleeding injuries and fell down. Accused Sanatan Martha sat on his chest and throttled his neck. Petitioner no.1 assaulted him by means of a crow-bar on his waist and leg. When he raised hue and cry, witnesses Prakash Sahu, Muna Dakua (P.W.3), Jayaram Padhy (P.W.4) and Rabindra Dakua (P.W.2) arrived there and rescued him from further assault. They took the informant to Badagada hospital and after being treated there, he returned to the Badagada P.S. and reported the matter. On the basis of such allegation, F.I.R. was lodged at Badagada Police Station on 14.05.2003, which was registered as Badagada P.S Case No.50 of 2003 under Sections 294/307/34 of IPC. After Page 3 of 12 completion of investigation, charge-sheet was submitted against the accused persons under Sections 294/307/326/34 of IPC and charge were framed against them under those Sections. The petitioners were put to trial. 4. To bring home the charges, the prosecution had examined as many as nine witnesses and exhibited five documents. The injured-informant was examined as P.W.1 and three of the F.I.R. named witnesses was examined as P.Ws.2, 3 and 4. Besides the said witnesses, P.Ws.5 and 7 are two seizure witnesses and P.W. 6 was a resident of Badagada said to be present at the time of occurrence. P.W.8 was the doctor who hasd issued the injury report and had given opinion on the query of the Investigating Officer (P.W. 9). The plea of defence was that of completely denial. In proof of their plea, defence had examined one of the accused persons namely Sanatan Martha as D.W.1. 5. Now coming to the evidence led by the prosecution, P.Ws.2, 3 and 4 who are the F.I.R. named witnesses, all are Page 4 of 12 Home Guards and the victim-informant is also a Home Guard. So, they have all colluded to create a false case as they are interested witnesses. P.W.3 (Muna Dakua) was also a co-accused with informant in the counter case registered as G.R. Case No.84 of 2003 on the F.I.R. of accused Sanatan Martha in the court of the learned J.M.F.C., Sorada. Coming to the discrepancy on oral evidence and medical evidence in the present case, the doctor has not found any injury on the legs or waist of the informant allegedly inflicted by accused Gokula. 6. The learned trial Court analyzed the entire evidence on record, found the petitioners guilty of the offence under Section 324 read with Section 34 of the IPC and convicted them thereunder and sentenced them to undergo rigorous imprisonment for one year each and to pay a fine of Rs.500/- each, in default, to further undergo rigorous imprisonment for one month each for committing the offence under Section 324 of the IPC. Page 5 of 12 7. The judgment of conviction and sentence dated 06.11.2007 passed by the learned Assistant Sessions Judge, Bhanjangar in S.T. No.06 of 2004, for the aforementioned offences was called in question by filing Criminal Appeal No.21 of 2007 before the Court of learned Additional Sessions Judge, Bhanjanagar by the petitioners. 8. The learned appellate Court vide its judgment and order dated 23.09.2013 has rejected the appeal inter alia stating as under: “8. The prosecution examined nine witnesses whereas defence examined one witness. The prosecution relied on documents vide Ext.1 to 5 and defence produced documents vide Ext.A to D. The prosecution has also produced material objects such as sword and iron as M.O.I. & M.O.II. The informant examined as P.W.1 in this case. He narrated the incident in the F.I.R. According to him P.W.s 2 to 4 are eye- witnesses have categorically and consistently the stated about accused persons on P.W.1. Learned counsel for the appellants urged that, there being a counter case, the evidence of witnesses should not be taken to be true. As a matter of fact, the evidence of P.W.s. 2 to 4 having been consistent and inconfirmity with evidence of the assault made by Page 6 of 12 the the that, that, found found P.W.1, I do not find any reason to reject their evidence. Learned trial court has critically examined all the above witnesses. Some minor discrepancies were noticed by the trial court, but those discrepancies are not sufficient to disbelieve their evidence. It is further trial court has elaborately discussed their evidence. It is further trial court has elaborately discussed the scope and ambit of Section 307 I.P.C., so also the circumstances under which the offence U/S. 307 I.P.C. is to be proved. The prosecution could not able to prove the offence U/S. 307 I.P.C. Then the accused persons were convicted U/S. 324/34 I.P.C. On careful examination of the evidence 5. of the witnesses, so also the contents of the documents it is noticed that, the finding of the trial court needs no interference. The accused persons were rightly convicted U/S. 324/34 I.P.C. for One month. The trial court has directed the accused persons to undergo R.I. for One year and to pay a fine of Rs.500/- in default to undergo R.I. facts and circumstances of this case, I do not find any reason to differ from the sentence imposed on the accused persons. Thus, the criminal appeal failed.” the In 9. The petitioners have challenged the judgment/order of conviction and sentence in the present Revision Petition. Page 7 of 12
Legal Reasoning
10. Heard Ms. Deepali Mahapatra, learned counsel for the petitioners and Mr. P.K. Maharaj, learned Additional Sanding Counsel at length. 11. Perused the evidence on record. 12. Although the learned trial Court has dealt with the entire evidence on record in detail and passed the judgment convicting the petitioners, however, in appeal, the learned appellate Court has miserably failed to analyze the evidence on record and has passed a cryptic order upholding the judgment and order dated 06.11.2007 passed by the learned trial Court. Therefore, the learned trial Court’s judgment needs to be analyzed on the strength of the evidence adduced by the prosecution. 13. The conviction recorded against the petitioners are on the strength of the oral testimony of so called eye witnesses, namely, P.Ws, 2,3 &4. All these three eye witnesses were the Home Guards and P.W.1, who is the victim in this case was also a Home Guard. Therefore, the defence plea that they Page 8 of 12 were falsely implicated as the witnesses are interested witnesses cannot be lightly taken and ignored. 14. It is apparently illuminating from the record that a free fight had broken out at the place of incident as a result of which P.W.1 was injured. However, it is not clear that who was the aggressor in the instant case. But the fact remains that incident had taken place in the public glare. Therefore, non-examination of the independent witnesses by the prosecution creates clear doubt on the prosecution story and strengthens the defence plea that all the prosecution witnesses, who have examined as eye witnesses are interested witnesses. Prosecution has no plausible explanation to the said defence plea. 15. The testimony of P.W.8, the doctor assumes importance on the facts scenario of the present case. The evidence of P.W.8 is definitely creates further doubt on the prosecution story. The learned trial Court in Paragraph-11 of the Page 9 of 12 judgment had taken note of the said aspect of the mater. The Paragraph 11 reads as under: there that when “11. Coming to the discrepancy on oral evidence and medical evidence, it can be said that the law on the point is quite well settled. In Madan Gopal Kkkad…vs. Naval Dubury, 1992 (3) SCC 204, State of U.P. vs. Babul Nath, 1994 (6) SC 29 and Ranjit Hazarika vs. State of Asham, 1998 (8) SC 635, Hon’ble Apex Court held is discrepancy between medical evidence and ocular evidence, the expert opinion only being advisory in nature, cannot over ride ocular evidence. So even though in the present case, the doctor has not found any injury legs or waist of the informant allegedly inflicted by accused Goukla, yet his evidence cannot be taken above the ocular evidence to reject the testimony of the direct witnesses. So the contention of the learned counsel for the accused persons that in absence of any other injury in the medical report, the evidence of other witnesses is not to be believed, cannot be accepted. In the circumstance, the medical report on its own merit would be considered only to assess the injury found by the doctor on the person of the victim-informant.” 16. It is evident on record that the Doctor has not supported the prosecution case. But the trial court brushed aside the evidence of the Doctor and given primacy to the Page 10 of 12 evidence of the eye-witnesses. The ocular versions of the eye- witnesses are tainted for the reasons as stated above, this has escaped from the notice of the court below. 17. The aforementioned glaring facts on record has not been dealt with by the leaned appellate Court in its judgment dated 23.09.2013. Therefore, it is not safe to maintain the conviction recorded by the Court below against the petitioners even under Sections 324/34 of the IPC. 18. Taking into consideration the quality of evidence led by the prosecution and the fact that oral testimony of the so called eye witnesses creates a doubt regarding prosecution story in the absence of non-examination of independent witness and in the light of the fact that the doctor’s version is shaky, I am of the considered view that the petitioners are entitled to be acquitted. Accordingly, the judgment and order dated 23.09.2013 passed by the learned Additional Sessions Judge, Bhanjanagar in Criminal Appeal No.21 of 2007 as well as the judgment and order dated 06.11.2007 passed by the Page 11 of 12 Asst. Sessions Judge, Bhanjanagar in ST Case No 6 of 2004 are set aside. The petitioners are acquitted from all the cargoes. The bail bond furnished by them stands cancelled.
Decision
19. The Criminal Revision stands allowed and disposed of. ………………….. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 15th April, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 17:54:39 Page 12 of 12