Criminal Appeal No. 45 of 2015 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.669 of 2017 Rajkishore Mallick …. Petitioner(s) -versus- State of Odisha & Ors. …. Opposite Party(s) Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : : Mr. S. K. Mohanty, Adv. Mr. D. Mund, A.G.A. CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-08.12.2023 DATE OF JUDGMENT: -22.12.2023 Dr. S.K. Panigrahi, J. 1. This Criminal Revision Petition is filed under Section 401 read with Section 397(1) of Code of Criminal Procedure against the order of conviction and sentence passed by the learned Assistant Sessions Judge (Special Track Court), Jajpur in C.T. (Sessions) No.235/2013(58 of 2013) against the petitioner, which has been confirmed by the learned Additional Sessions Judge, Jajpur in Criminal Appeal No.45 of 2015. The petitioner stands convicted under Section 294, I.P.C. and sentenced to R.I. for three months Signature Not Verified and under Section 325, I.P.C. and sentenced to R.I. for three years Page 1 of 14
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 and to pay a fine of Rs.5,000/- in default to further R.I. for three months. I. CASE OF THE PROSECUTION: 2. On 28.10.2012/ Kusa Patra (“the informant”) of village Rajendrapur, P.S - Kuakhia, Dist. Jajpur submitted a written report before the IIC, Kuakhia P.S. to the effect that on 27.10.2012, while he was cultivating his land, the accused/petitioner came there and asked him to stop cultivating a passage. In retort, Kusa told him to ask his father as to why he is cultivating. Enraged, the accused/petitioner left the spot only to return and verbally abuse Kusa by saying obscene words such as "Sala, Maghia" (slang words) towards him. The accused/apellant attempted to assault Kusa by hitting his head using a bamboo lathi, but as he wagged his head, the lathi caused slight injury on his forehead. 3. When Kusa raised hullah, his brother Nabaghan, the father and the uncle of the accused, all arrived at the spot. They decided to settle the matter through compromise, but when the talk of compromise was going on/ the accused/petitioner suddenly struck Kusa’s head by a debadaru lathi, for which he fell down. While the informant was on the ground, the accused/petitioner with an intention to kill attempted to assault his head, but he saved himself by shielding his head using his hands and resultantly, sustained fracture injury of two fingers of his right hand. 4. The accused/petitioner also assaulted Kusa’s right shoulder; fracturing his right collar bone. The accused/petitioner then Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 2 of 14 assaulted his elder brother, Nabaghana and the father and the uncle of the accused while threatening to kill them. 5. On this report, the IIC, Kuakhia P.S. registered P.S. Case No. 149 of 2012 dated 28.10.2012, under Section 341/323/294/325/506/307/34 of
Legal Reasoning
I.P.C. and directed Smt. B. Dalei, S.I. of Police Kuakhia P.S. to take up the investigation. 6. During course of investigation, the investigating officer (I.O.) visited the spot, examined the complainant/injured and other witnesses, issued injury requisitions in favour of the injured and on 19.11.2012 arrested the accused and as per the order of this Court in BLAPL No.29129 of 2012, released him on bail. 7. After completion of investigation, the investigating officer submitted charge sheet under Section 341, 323, 294, 325, 506, 134 307, I.P.C. against the accused/petitioner. As the alleged offences are triable by the court of sessions, upon commitment the case was sent to the court of sessions for trial and the same was tried by the learned Asst. Sessions Judge (special Track court), Jajpur in C.T. (sessions) No. 235 of 2013 (58 of 2013). 8. The plea of the accused/petitioner is of complete denial of the prosecution allegation and false implication. 9. In order to bring home the charges, the prosecution examined 11 witnesses as P.W. 1 to 11; P. W. 4 is the complainant; P.Ws. 7, 8, 9 and 11 are medical officers; and P.W.10 is the Investigating Officer. The prosecution also presented certain documents as exhibits, which includes the F.I.R. and the injury reports of the injured. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 3 of 14 10. On the other hand, the accused/petitioner did not examine any witness in his support or filed any documentary evidence. II. TRIAL COURT JUDGMENT: 11. The trial court began the analysis of the case with the examination of the medical report to ascertain the nature of the injury of the complainant. 12. Dr. Manas Ranjan Sahu (P.W.7), in his examination-in chief stated that on 27.10.2012, while he examined the complainant and after, preliminary treatment, he referred the patient to District Headquarter Hospital, Jajpur. He also stated as per the report of DHH, Jajpur vide No. 106312 dated 27.10.2012, the complainant sustained fracture of right clavicle and lacerated injury over right temperal region. This deposition of corroborated by Dr. Niranjan Swain (P.W.11), the Sr. Medicine specialist of DHH Jajpur, and Dr. Dillip Kumar Jena (P.W.9) , the orthopaedic specialist, DHH, Jajpur in their evidence. 13. The trial court noted that during cross-examination of these medical officers, the counsel for the defence elicited no material fact to discredit the deposition of the medical officers as well as the fact that the incident indeed happened on 27.10.2012. While the trial court opined that the prosecution successfully established the incident, it also noted that the injury reports do not reveal fracture of right hand fingers. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 4 of 14 14. The trial court also considered the deposition of P.W. 8, the Medical Officer of P.H.C Haripur who deposed that on 1.11.2012, on police requisition, he examined Nabaghan Patra (P.W.I) and found no visible injury mark neither on the left hand nor any part of the body. Based on this, the trial court held that the allegation against the accused of voluntarily causing hurt to P.W.1 is beyond belief. 15. Now, coming to the question if the accused on the relevant date, time and place had inflicted the proven injuries on the complainant and the said injuries were inflicted by him with such an intention or knowledge and under such circumstances that if that would have caused the death of the complainant, he would be guilty of murder; the trial court considered the depositions of other witnesses.. 16. Nabaghana Patra (P.W. 1), brother of the complainant, deposed that while there was exchange of hot words between complainant and accused, the accused, assaulted the complainant by means of a bamboo stick and thereby caused slight injury on his right side forehead and hearing the hulla, he rushed to the spot and found many persons gathered there. He also stated on seeing a bleeding injury on the right side forehead of the complainant, he asked the complainant about the matter, who disclosed the fact before him. It is also stated by this witness that the maternal uncle of the accused reached at the spot and requested him and the complainant to settle the matter, for which they proceeded near the house of the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 5 of 14 accused and while there was talk of compromise on the village road, near the house of the accused, the accused by a ’debadaru’ lathi suddenly attempted to dealt a blow on the head of the complainant, but he ward off his head by showing his hand, the blow hit his right palm, causing fracture injury of two fingers, so also the accused dealt a ’debadaru’ lathi blow on the right side collar bone of the complainant, causing fracture injury. It is also stated by him that the accused assaulted him on his right elbow by means of said debadaru lathi causing injury, for which he also got treatment at Haripur, CHC but as the complainant sustained severe injury, he was shifted to Madhuban P.H.C for treatment. This is duly corroborated by the depositions of P.Ws. 2, 3, and 5. The trial court also noted that the defence counsel during cross examination of P.W 1, 3 & 5, elicited no such material facts to discredit their version that on the relevant date, time and place of the incident as well as the fact that the accused/petitioner was the main culprit of the whole episode. 17. However, during the trial, the defence counsel was able to point out a certain discrepancy in the depositions of P.W.2, 3, and 5 in contrast to that of the complainant. Admittedly, P.W.1 and P.W.3 in their evidence had stated that they first went to Kuakhia P.S and thereafter proceeded to hospital, but P.W.4, the complainant himself in his cross examination stated on the next day of the occurrence, he lodged the FI.R at P.S. The investigating Officer in his evidence also stated the injured-complainant lodged FIR on Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 6 of 14 28.10.2012 and thereafter on the direction of IIC of Kuakhia P.S she started the investigation of the case. However, the trial court is of the opinion that such minor discrepancies which do not pose reasonable doubts to the substantial story of the prosecution cannot discredit the whole episode. 18. In light of the above, the trial court held for the minor contradictions, inconsistencies, embellishments or improvements in the prosecution case, no serious doubt can be cast over the prosecution case and the same cannot be disbelieved in whole, and as such the prosecution successfully established the fact that the accused voluntarily caused grievous hurt to the complainant and thus, the charge under Section 325 of I.P.C is proved. 19. Now, so far the allegation under Section 294 IPC is concerned, the complainant in his F.I.R has reported that the accused on the relevant date, time and place, verbally abused the complainant by uttering obscene word such as "Sala, Maghia" and in his evidence also stated that while he was cultivating his field, the accused came before him and abused him in filthy language saying "maghia, bhaunighia". The defence counsel during cross examination of the complainant also elicited no such material fact, to discredit it. However, the complainant had himself deposed, during the cross- examination that no person was present when the accused/petitioner was hurling abuses. The trial court chose to ignore it and held that the offence under Section 294 is certainly made out. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 7 of 14 III. PETITIONER’S SUBMISSIONS: 20. Learned counsel for the Petitioner submitted that the impugned judgments are bad, illegal, and against the weight of evidences on 21. 22. record, hence the same are liable to be set aside. It is submitted that the courts erred in ignoring the material contradictions in the evidences of the prosecution witnesses without assigning any valid reason to that effect. It is submitted that the courts below erred in law to oversight the fault of the prosecution evidence. On bare perusal of the prosecution evidence it is found that there is clear cut contradictions and discrepancy in the evidences of the doctor and ocular witnesses regarding number of blows and corresponding injuries on the person of the injured, which creates reasonable doubt on the fairness of the prosecution case. For which the impugned Judgments are liable to be set aside. 23. It is argued that the impugned judgments suffer from surmises and conjectures. The courts have failed to consider the vital aspect of the prosecution case i.e. while the injured (P.W. 4) and other P.Ws have stated in their evidences that the injured Kusa Patra has sustained four numbers of injuries including bleeding injury on his person and he has been medically examined within one hour of occurrence by P.W.7, but the P. W. 7 in his injury report and evidence has neither mentioned nor stated about the time of examination of the injured, the age of injury and nature of the injury. As such the injury report cannot be accepted under the law. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 8 of 14 IV. COURT’S ANALYSIS AND REASONING: 24. Keeping in view the submissions made, I have carefully read the judgment passed by the trial court. I have also bestowed our due attention to the evidence on record, both oral and documentary. 25. Dealing with the conviction under Section 294 of the I.P.C., it is not disputed that the accused/petitioner hurled filthy abuses towards the complainant. The same has not been attempted to discredit by the defence. However, it is pertinent to note that, admittedly, while the accused/petitioner hurled the abuses, there were no other participants of the public on the scene. 26. Now, it is trite in law that abusive words or humiliating words or defamatory words will not as such amount to obscenity as envisaged in Section 294(b) of the I.P.C. To make the words obscene, it must satisfy the definition of obscenity. The definition of obscenity under Section 292(1) IPC shall be employed as there is no separate definition for obscenity in Section 294. That to make it punishable the alleged words must be in a sense lascivious, or it must appeal to the prurient interest, or will deprave and corrupt persons. The alleged words uttered must be capable of arousing sexually impure thoughts in the minds of its hearers and thus to make the alleged words of obscene it must involve some lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons and defiling morals by sex appeal or lustful desires. That merely because the words are Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 9 of 14 abusive, defamatory or humiliating will not make by obscene so as to attract offence under Section 294(b) of the I.P.C. 27. In N.S. Madhanagopal v. K. Lalitha,1 the Supreme Court has clarified the requirements of Section 294 I.P.C. as under: “It has to be noted that in the case, the of words which will involve some sexual or feelings or words cannot attract the under 294(b). None of the disclose the words used by the accused. It may not be the of law to in all cases the entire obscene words if it is lengthy, but in the instant case, there is hardly anything on record. Mere abusive, humiliating or defamative words by itself cannot attract an offence under Section 294(b) IPC- To prove the offence under Section 294 of IPC mere utterance of obscence words are not sufficient but there must be a further proof to establish that it was to the annoyance of others, which is lacking in the case. No one has spoken about the obscene words, they felt annoyed and in the absence of legal evidence to show that the words uttered by the appellants accused annoyed others, it cannot be said that the ingredients of the offence under Section 294 (b) of IPC is made out.” 28. It is found that the words alleged to have been used by the revision petitioner in this case are really abusive and humiliating, but those words cannot be said to be obscene. It is due to the fact that there was no one present at the scene. In terms of the charges of offence punishable under Section 294 of IPC, it is well settled that these type of abuses are uttered in general parlance in altercations between rustic people. In this regard, the principle laid down by 1 Criminal Appeal No.1759 OF 2022 (Arising out of S.L.P.(Crl.) No.6039 of 2022) Page 10 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 the High Court of M.P. in Dhal Singh v. State of M.P.,2 is relevant to refer here: “That in the class of society to which the parties belonged the abuses had no more significance than mere platitudinous utterances signifying the enraged state of the persons mind. As the accused were villagers and filthy abuses were not uncommon among villagers and in the strata of society to which they belonged, the sting was taken out of the words and they could not be characterised as obscene within the meaning of Section 294 of the IPC. Annoyance is the gist of the offence under Section 294 and in the absence of positive proof of annoyance, there could be no offence under Section 294/ IPC.” 29. As already stated, every abusive word or every humiliating word cannot, by itself, be said to be obscene as defined under the Penal Code. Mere platitudinous utterances signifying the enraged state of the person’s mind would not be sufficient to attract the application of the provisions of section 294, of the Penal Code, 1860. Thus mere ‘vulgar abuses’ do not constitute offence under section 294 of the Penal Code, 1860. 30. In light of the aforesaid propositions, in the case at hand, since no prosecution witness deposed anything about causing annoyance before the Court, the prosecution, therefore, has failed to prove that accused committed obscene act by abusing complainant, which annoyed others. 31. Next, the counsel for the defense has raised objections on the reliability of the testimony of P.Ws.2, 3, and 5 calling them Signature Not Verified 2 1957 MP LJ 21 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 11 of 14 interested party of to the criminal occurrence. However, they have not produced any substantial evidence or witnesses to back their hypothesis. Per se, their accusation is farfetched; based on conjecture and surmises. 32. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straightway unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. 33. Interested witnesses are not necessarily false witnesses. Evidence of interested witness cannot be equated with that of a tainted witness. There is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. 34. In fact, "Related" is not equivalent to ’interested’. A witness may be called ’interested’ only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused punished. A witness who is a natural one and is a possible eye witness in the circumstances of a case cannot be said to be ’interested’. Ergo, this contention of the defense cannot be accepted. 35. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of the Apex Court in Jayabalan v. Union Territory of Pondicherry:3 Signature Not Verified 3 (2010) 1 SCC 199 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 12 of 14 “23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.” 36. In the instant matter, as already discussed above, this Court finds the testimony of the eyewitnesses to be consistent and reliable, and therefore, reject the contention of the petitioner that the testimony of the eyewitnesses must be disbelieved because they are close relatives of the deceased and hence interested witnesses. 37. On the contention of discrepancies in the medical report and depositions of the P.Ws., it is trite in law that only such omissions which amounts to contradiction in material particulars can be used to discredit the testimony of the witness. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. Similarly, when the medical report is cogent and well corroborated minor omission would not discredit the story of the prosecution. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 13 of 14 38. In light of the above discussion, the CRLREV is allowed in part. 39. The judgment of the trial court will only stand against the accused/petitioner for the offence under Section 325 of the Indian Penal Code. The order of the trial court and the punishment prescribed therein under Section 294 of the I.P.C. is quashed.
Decision
40. Accordingly, this CRLREV is disposed of. (Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 22nd Dec., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 14 of 14