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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.129 of 2024 (In the matter of an application under Section 401 read with Section 397 of the Code of Criminal Procedure). Kalia Kunda @ Thesa Kalia …. Petitioner(s) -versus- The State of Odisha …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: : For Petitioner(s) M/s. Soubhagya Kumar Dash, Adv . Mr. S.K. Tripathy, Adv. For Opposite Party (s) : Mr. Dhananjaya Mund, AGA CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-01.05.2024 DATE OF JUDGMENT: -25.06.2024 Dr. S.K. Panigrahi, J. 1. In filing this Criminal Revision, the Revisionist/Petitioner has not only challenged the judgment of conviction and order of sentence dated 22.02.2024 passed by the learned Sessions Judge, Berhampur, Ganjam in
Legal Reasoning
Criminal Appeal No.37 of 2023, but has also challenged the judgment dated 10.08.2023 passed by the learned Assistant Sessions Judge-cum- Chief Judicial Magistrate, Ganjam Berhampur in S.T. No.31 of 2009. I. FACTUAL MATRIX OF THE CASE: 2. The brief fact of the case in brevity remains:- Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 Page 1 of 10 (i) One Brundaban Sahu lodged an F.I.R/ report before the Nuapada Outpost alleging therein that on 30.05.2008 at about 4.30pm the accused Kalia Kunda @ Thesa Kalia fell down on the ground losing his balance on his motorcycle at Patrachudi. During that time, while his nephew Dusmanta Chandra Sahu tried to rescue him, the accused Thesa Kalia asked him as to whether he knows him. He also abused him and threatened to kill. (ii) After some time while Dusmanta was at village B. Laxminarayanpur, the accused Thesa Kalia along with another person reached there holding bamboo Thenga in order to kill him and also assaulted him on his head and other body parts. When Akura Gouda tried to rescue Dusmanta, they had also abused him and assaulted him. Due to such assault, Dusmanta became senseless. On being informed about such incident, the informant came and took him to the M.K.C.G. Medical College and Hospital, Berhampur for treatment. Due to such assault Dusmanta sustained injury on both his hands. It was further alleged therein that the accused had demanded a sum of Rs.50,000/- from him. (iii) On receipt of the report, the O.I.C of Nuagaon Police Station registered the F.I.R under Sections 341/294/323/307/506/385/34 of the I.P.C being numbered as Nuagaon P.S. Case No.32 of 2008 against the Revisionist/Petitioner. Upon registration of the F.I.R. copy of the same was also forwarded to the court of the learned J.M.F.C, Digapahandi. Accordingly, G.R. Case No.116/2008 was also registered. (iv) Thereafter, the Police personnel upon conclusion of the investigation as well as spot visit, on 20.09.2009 submitted the charge-sheet against the Page 2 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 Revisionist/Petitioner as well as one Kuresh Gouda vide Charge-sheet No.63. Upon submission of charge-sheet the learned Magistrate took cognizance of the offences and thereafter, forwarded the case to the court of the Sessions as the offences involved were triable by the court of Sessions. (v) It is pertinent to mention here that during course of trial the case of the accused Kuresh Gouda was abated vide order dated 27.05.2018. In order to prove its case, the Prosecution examined all the eight witnesses. P.W.1 is the seizure witness. P.Ws.2, 3 & 6 are the occurrence witnesses. P.W.4 is the complainant. P.W.5 is the injured victim. P.W.7 is the I.O. of the Case. P.W.8 is the Medical Officer, who examined the victim Dusmanta Chandra Sahu. On the other hand, none has been examined from the side of the accused. (vi) Being appreciated with the evidences, the learned trial court came to the conclusion that the prosecution could not prove the case for the offences under Sections 341/294/506 & 385 of the I.P.C. and accordingly, acquitted the Revisionist/Petitioner from those offences, but at the same time convicted the Revisionist/Petitioner for the offences punishable under Sections 307/323 & 325 of the I.P.C. and sentenced to undergo R.I. for two years with fine of Rs.5,000/- or else in default to undergo R.I for five months for the offence under Section 307 of the I.P.C. No separate sentence was awarded for the offences under Section 323 and 325 of the I.P.C. (vii) Thereafter, being aggrieved by the judgment dated 10.08.2023 passed by the learned Assistant Sessions Judge-cum-Chief Judicial Magistrate, Page 3 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 Ganjam-Berhampur in S.T. No.31/2009, the Revisionist/Petitioner preferred an appeal before the court of the learned Sessions Judge, Ganjam-Berhampur, which was registered as Criminal Appeal No.37 of 2023. (viii) Accordingly, upon hearing the above noted appeal the learned lower appellate court though found that the conviction of the Revisionist/Petitioner is not made out for the offence under Section 307 of the I.P.C, while setting aside the conviction under Section 307 of the I.P.C, held that the Revisionist/Petitioner is guilty of offence under Section 325 of the I.P.C. Accordingly, the learned lower appellate court modified the sentence to undergo R.I. for a period of one year and to pay a fine of Rs.5,000/- or else in default of making payment of such fine to undergo R.I. for five months for the offences under Section 325 of the I.P.C. (ix) Being aggrieved by such orders/judgments of the learned trial court as well as the learned lower appellate court, the Revisionist/Petitioner has preferred this CRLREV. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. Learned counsel for the Revisionist/Petitioner earnestly made the following submissions in support of his contentions. (i) Challenging the impugned judgments/orders, learned counsel for the Revisionist/Petitioner submits that the P.W.3/Akuro Goudo in his evidence before the court in seisin over the matter spoke that he was at a little bit of distance from the place of occurrence and on hearing shouts he ran to the injured and till his reaching the spot the accused persons Page 4 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 had already assaulted the injured on his head. At this juncture, he submits that based on this evidence it is clear that this witness had not seen any assault over the injured. In the cross examination he admitted at Para 3 that he, for the first time, deposed regarding the incident before the court. (ii) Learned counsel for the Revisionist/Petitioner further contends that in the chief examination P.W.5 i.e. the injured had stated regarding the assault over him by the accused person. But, in the cross examination at Para-5 he specifically stated that as the accused persons assaulted him from the back side, he cannot say the exact role played by the accused persons. He had not even stated such fact during the course of examination before the Police. At the time of assault, he raised his right hand and consequently sustained injuries on both the hands. At Para 9, he has also not stated that his uncle Rajendra Sahu and one Damodar Behera took him to the hospital. (iii) In this context learned counsel for the Revisionist/Petitioner submits that it is essential to examine the medical report, based on which the injured was examined by the P.W.8 i.e. the Doctor. The injury report marked as Ext.3 discloses that the injured Dushmant Sahu was brought and identified by the informant Brundaban Sahu/P.W.4 and on 01.06.2008 the Police issued the injury requisition, whereas the injured was examined on 30.06.2008 and the report of the Doctor was submitted on 16.07.2008. The Doctor P.W.8 has admitted that bed head tickets of the injured relating to the initial treatment were not seized by the Investigating Officer. Therefore, the initial treatment of the injured Page 5 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 could not be established by the Prosecution, as the history of the injury always remains on the bed head tickets. But, in the present case the Doctor admitted that he had not seen the bed head tickets. (iv) In the circumstance, learned counsel for the Revisionist/Petitioner submits that there is no nexus between the injuries and the manner of assault made by the accused persons, as there is no entry made anywhere regarding the assault made by the accused persons and subsequently the injured sustained the injuries. He further contends that P.W.4 i.e. the informant, who is a post occurrence witness had admittedly stated before the court in seisin over the matter that he had not stated before the Police on getting a phone call he went to the injured and subsequently reported the matter.
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(v) Learned counsel for the Revisionist/Petitioner also submits that through the incident took place on 31.05.2008, the FIR was submitted before the concerned court on 02.06.2008. He, accordingly, submits that delay in sending the FIR to the court creates a doubt on the false implication on the accused persons in the present case by the informant and the injured. He further contends that so far as the investigation part is concerned; the I.O/P.W.7 had only seized a bamboo stick, but the same was not supported by any witnesses. The spot map prepared by the I.O also does not speak about the exact location of the incident. (vi) In view of such discrepancies in the evidences of the Prosecution and due to lack of corroboration from other witnesses and also for the material particulars it cannot be safely concluded that the prosecution could be able to establish that it is a case beyond all reasonable doubts. Page 6 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 Accordingly, the Prosecution was miserably failed to establish that the case is beyond all reasonable doubts and therefore, the Revisionist/Petitioner deserves to be acquitted due to lack of substantial evidence. Learned counsel for the Revisionist/Petitioner, accordingly, prays for allowing this CRLREV. III. SUBMISSION OF THE PROSECUTION: 4. Learned counsel for the State submits that the learned trial Court has vividly discussed about the evidence on record while holding the Petitioner guilty of offence under Sections 307/323/325 of the IPC. He further contends that though there is no other direct evidence, the evidence of the injured-eye witness PW.5 and PW.3 is sufficient to hold the Petitioner to be the author of the injuries sustained by the injured PW.5. IV. COURT’S REASONING AND ANALYSIS: 5. Aside from PW.5 the injured himself, PW.3 is an eye witness to the incident, who stated about the incident. According to PW.5 on 30/05/2008 at about 04:30 PM while he along with PW.3 had to the place of construction to supervise the work, at that time both the accused persons arrived there by means of a motorcycle and said that "MATE CHINI PARILUKI" and when he denied to identity him, he threatened him and left the spot and after some time when he was supervising road work at B. Laxminarayanpur, they again arrived there and tried to assault him on his head from his backside and when he raised hand, the blow hit on his right hand and to protest another blow, he again raised Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 Page 7 of 10 his left hand and sustained fracture injury on his left hand. The accused persons also assaulted on his head causing head injury. 6. During the cross-examination, PW.5 deposed that while he was standing on the road which is connecting to Digapahandi to Turubudi, the accused persons came there with their motorcycle, which was about 40 to 45 K.M. speed per hour and dashed against the humps and fell down to the left side of the road at a little distance from him. He had parked his Pulsar Motorcycle in front of the shop to the road side i.e., on the footpath and went to the road to supervise the road work. The accused persons threatened him on the road near the humps at village Patrachudi at about 04:00 P.M. According to PW.5 in para-5 of his cross- examination, at about 04:30 PM the alleged occurrence took place, where he was assaulted by the accused persons. Aside from PW.5 and PW.3, all other witnesses are post occurrence and hear-say witnesses. 7. PW.8 is the doctor, who treated the injured PW.5 at MKCG Medical College & Hospital, Berhampur in the Department of Orthopedics and he found five injuries on the person of PW.5 out of which the injury No.(v) being fracture of right ulna was opined by him as grievous injury. He proved the injury report vide Ext.3. 8. On going through the impugned judgment, it is seen that the learned trial Court has vividly discussed about the evidence on record while holding the Petitioner guilty under Sections 307/323/325 of the IPC. Though there is no other direct evidence but the evidence of the injured-eye witness PW.5 and PW.3 is sufficient to hold the Petitioner to be the author of the injuries sustained by the injured PW.5. Page 8 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 9. Section 307, IPC provides punishment for ’Attempt to murder’. It provides that any act done with such intention or knowledge and under such circumstances that, if by that act death is caused then the offender would be guilty of murder. Section 299, IPC defines the offence ’Culpable homicide’. Section 300, IPC defines the offence ’Murder’ and provides that except the exceptions as provided in that section, culpable homicide is murder if the act by which death is caused is done with the intention of causing death or causing such bodily injury as offender knows to be likely to cause the death or bodily injury so caused is sufficient in the ordinary course of nature to cause death or the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death or such bodily injury as is likely to cause death. Therefore, an attempt to commit offence fulfilling any of the aforesaid ingredients (as provided in Section 300 of the IPC) amounts to an offence under Section 307 of the IPC. 10. In this case PW.5 (injured), PW.3 and PW.4 (informant) have not stated in their evidence that accused had the intention to kill PW.5. The grievous injury i.e., the injury No.(v) fracture of right ulna never be said to be an injury on vital part of the body, thereby attracting the presumption of causing death of the injury in ordinary course of nature. The Doctor, PW.8, though stated that injury No.(v) was grievous in nature, but he did not say if any of the injuries was sufficient in ordinary course of nature to cause death of PW.5 or was likely to cause death of the injured or that such injuries were imminently dangerous and, in all probabilities, could have caused death of PW.5. Page 9 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 11. No other evidence was adduced by the prosecution to substantiate the charge for the offence under Section 307 of the IPC, but the incident as is seen from the evidence of PW.5 during his cross-examination at para-4 and the FIR narrations was not with any prior planning and it happened all of a sudden. Thus, merely on the basis of the gravity of the injury on the person of the injured PW.5, the accused / petitioner could not have been convicted for the offence under Section 307 of the IPC. Accordingly, his conviction under Section 307 of the IPC is set aside. But regard being had to the nature of injuries, the accused / Petitioner is liable to the offence under Section 325 of the IPC. 12. Accordingly, this Court does not accede to the submissions of the Petitioner. With respect to the aforesaid discussion, this Court is not inclined to interfere with the impugned judgement of the trial court. 13. This criminal revision petition is hereby dismissed. 14. Interim order, if any, passed earlier stands vacated. Judge (Dr. S.K. Panigrahi) Orissa High Court, Cuttack, Dated the 25th June, 2024/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 Page 10 of 10