The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.57 of 2012 Appeals from the judgment and order dated 29.10.2011 passed by the Assistant Sessions Judge -cum- Chief Judicial Magistrate, Puri in Sessions Trial Case No.18/276 of 2010/09. ----------------------------------- Sandeep Kumar Sahoo ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant - Mrs. Padmaja Pattnaik Advocate For Respondent - Mr. Arupananda Das Addl. Govt. Advocate CRLA No. 9 of 2012 Deepak Mangaraj @ Bapi ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant - Mr. Bikram Keshari Mohanty Advocate For Respondent - Mr. Arupananda Das Addl. Govt. Advocate ---------------------------- [2] P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------- -------------------------------- Date of Hearing and Judgment: 28.03.2024 --------------------------------------------------------------------------------------- -------------------------------- By the Bench: The appellant Sandeep Kumar Sahoo in JCRLA No.57 of 2012 and the appellant Deepak Kumar Mangaraj in CRLA No.9 of 2012 faced trial in the Court of learned Assistant Sessions Judge -cum- Chief Judicial Magistrate, Puri in Sessions Trial Case No.18/276 of 2010-09 for commission of offences punishable under sections 394/307/34 of the Indian Penal Code (hereinafter ‘I.P.C.’)and sections 25/27 of the Arms Act on the accusation that on 27.06.2009 at about 12.30 p.m. at village Motori near GatiswarDev temple, they attempted to commit robbery of Rs.30,000/- (rupees thirty thousand) from Subash Chandra Senapati (P.W.5) and also attempted to commit murder of P.W.5
Legal Reasoning
by firing pistol in furtherance of common intention and that they were found in possession of a pistol without any valid licence and the pistol was used without any valid licence. The learned trial Court, vide impugned judgment and order dated 29.10.2011, found the appellants not guilty for the offence under section 25 of Arms Act and acquitted them of such charge. However, both the appellants were held guilty for the JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 2 of 19 [3] offences under sections 394/307/34 of I.P.C. and section 27 of Arms Act. The appellants were sentenced to undergo R.I. for ten years and to pay a fine of Rs.5,000/- (rupees five thousand) each, in default to undergo R.I. for one month for the offence under section 394 of I.P.C., R.I. for seven years and to pay a fine of Rs.5,000/- (rupees five thousand) each, in default to undergo R.I. for one month for the offence under section 307 of I.P.C. and R.I. for five years and to pay a fine of Rs.5,000/- (rupees five thousand) each, in default to undergo R.I. for one month each for the offence under section 27 of Arms Act and the sentences were directed to run concurrently. Prosecution Case: 2. The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) lodged by informant Hare Krushna Badajena (P.W.3), in short, is that P.W.3 was a businessman and he was having business dealing with Subash Chandra Senapati (P.W.5). On 27.06.2009, P.W.3 had been to village Motori near the temple of deity Gatiswar Dev in order to pay a sum of Rs.30,000/- to P.W.5 in connection with the business and at about 12.30 p.m. when P.W.3 handed over the cash and P.W.5 was counting the same, the appellants arrived at the spot in a Hero Honda motor cycle and the appellant Deepak Mangaraj JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 3 of 19 [4] fired gun shot at P.W.5 from a revolver, which caused severe bleeding injury on the left thigh of P.W.5. P.W.3 raised hullah, for which the outsiders arrived at the spot and overpowered both the appellants and they disclosed their identities. The police team from Mandarbasta Outpost arrived at the spot and made necessary arrangement for shifting P.W.5 to the hospital. The appellants were handed over to the police and on receipt of the F.I.R. from P.W.3, Kanas P.S. Case No.24 dated 27.06.2009 was registered under sections 394/307 of I.P.C. and sections 25/27 of Arms Act against the appellants. P.W.6 Krushna Chandra Das, who was the S.I. of Police attached to Mandarbasta Outpost under Kanas Police Station, upon receiving information about the occurrence, came to the spot where he received the F.I.R. from P.W.3 and took up investigation of the case. The appellants were detained by the villagers and were arrested and one 9 mm pistol along with live cartridges was seized. On being produced by one Pabitra Mohan Pattnaik (P.W.4) in presence of witness, the Hero Honda motor cycle, empty cartridges and one katari were also seized. The appellants, who had sustained injuries during tussle with the villagers were sent to the Kanas Hospital for their medical examination and the appellants were forwarded to Court on 28.06.2009. The injured (P.W.5) was shifted to the S.C.B. JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 4 of 19 [5] Medical College & Hospital, Cuttack and his statement was recorded in the Hospital by the I.O. (P.W.6). The I.O. also completed the other formalities of investigation and prayed before the Collector, Puri through the S.P., Puri to accord sanction to launch prosecution under the Arms Act and accordingly, the learned District Magistrate, Puri accorded sanction. On completion of investigation, the chargesheet was submitted against the appellants under sections 394/307 of I.P.C. and sections 25/27 of Arms Act on 21.09.2009. Prosecution Witnesses & Exhibits: 3. In order to prove its case, the prosecution examined as many as nine witnesses. P.W.1 Pramod Kumar Khandayatray denied having any knowledge about the incident and did not support the prosecution case. P.W.2 Pramod Patuarsingh stated that he has no knowledge about the occurrence and did not support the prosecution case for which he was declared hostile. P.W.3 Harekrushna Badajena is the informant in the case and he narrated the incident as it unfolded on the fateful day and supported the prosecution case. JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 5 of 19 [6] P.W.4 Pabitra Mohan Pattnaik is an occurrence witness who was present at the temple of Lord Gatiswar Dev where construction work was going on. Upon hearing the sound of firing, he immediately rushed to the spot and found the appellant Deepak Mangaraj was in possession of a pistol. He further stated that the said appellant abused him but he along with others overpowered both the appellants and recovered a pistol and a live cartridge. He subsequently telephoned the police who came to the spot and seized the pistol and live cartridges. He also stated that the injured (P.W.5) told him that the appellants wanted to snatch cash by firing on him. P.W.5 Subash Chandra Senapati is the victim who denied having any knowledge about the incident and turned hostile to the prosecution case. However, he stated that he was under treatment at S.C.B. Medical College and Hospital where he was admitted on 27.06.2009. P.W.6 Krushna Chandra Das was posted as the Sub- Inspector and was attached to Mandarbasta Outpost under Kanas police station who registered the case upon receiving the F.I.R. from P.W.3. He is the Investigating Officer of this case. P.W.7 Dr. Bharat Kumar Behera was working as the Assistant Professor (Surgery) at S.C.B. Medical College and JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 6 of 19 [7] Hospital, Cuttack who medically examined the injured victim (P.W.5) and proved his report vide Ext.8/2. P.W.8 Dr. Jagadananda Mishra was working as the Associate Professor, Surgery at S.C.B. Medical College and Hospital, Cuttack who stated that P.W.5 was admitted to his Unit being referred by the District Headquarters Hospital, Khurda. He examined the victim and proved his report vide Ext.12. P.W.9 Dr. Amarendra Naik was posted as the Assistant Professor in the Department of F.M. & T. at S.C.B. Medical College and Hospital, Cuttack. He examined the victim (P.W.5) on the instruction of the H.O.D. of the F.M. & T. Department and proved his report vide Ext.12/2. The prosecution exhibited fourteen documents. Ext.1 is the F.I.R., Exts.2 to 5 are the seizure lists, Exts.6 to 8 are the injury requisitions, Ext.8/2 is the injury report, Exts.9 & 10 are the zimanamas, Ext.11 is the requisition for chemical examination, Ext.12 is the bed head ticket and Ext.12/2 is the opinion of P.W.9. Defence Plea: 4. The defence plea of the appellants is one of denial. One Naran Behera was examined as D.W.1 who stated that the JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 7 of 19 [8] two appellants were travelling on their motor cycle and P.W.5 was riding his motor cycle on the date of occurrence and all of them sustained injuries. He also stated that P.W.5 sustained injuries on his head and left thigh. Findings of the Trial Court: 5. The learned trial Court after analysing the oral as well as documentary evidence on record placed utmost reliance on the evidence of the informant (P.W.3), who is the eye witness to the occurrence so also the medical evidence and it came to the conclusion that due to use of fire arm by the appellant Deepak Mangaraj, P.W.5 has sustained injury and he was hospitalised and the same was done in furtherance of common intention of the appellants and they attempted to commit robbery. Learned trial Court however held that the prosecution has not proved the sanction order from the learned District Magistrate, Puri, which was essential to launch prosecution under section 25 of the Arms Act in view of section 39 of the Arms Act and accordingly, concluded that the prosecution has failed to prove the charge under section 25 of Arms Act. However, the learned trial Court held that the appellant Deepak Mangaraj used a 9 mm. revolver without having a valid licence and caused JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 8 of 19 [9] injury to P.W.5, and therefore, held the appellants guilty under sections 394/307/34 of I.P.C. and section 27 of Arms Act. Contention of the Parties: 6.
Legal Reasoning
Mrs. Padmaja Pattnaik, learned counsel appearing for the appellant Sandeep Kumar Sahoo in JCRLA No.57 of 2012 argued that the injured has not supported the prosecution case being examined as P.W.5 and P.W.3, the informant, who is the eye witness to the occurrence, has not attributed any specific overt act against the appellant Sandeep Kumar Sahoo and P.W.4 arrived at the scene of occurrence after the firing was over and only stated about the overpowering of the appellant Sandeep Kumar Sahoo at the spot but he has also not attributed any overt act against the said appellant. Learned counsel further argued that there is absolutely no material to attract the ingredients of the offence under section 394 of I.P.C. in this case and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant Sandeep Kumar Sahoo. Mr. Bikram Keshari Mohanty, learned counsel appearing for the appellant Deepak Mangaraj @ Bapi in CRLA No.9 of 2012 also supported the argument advanced by Mrs. Pattnaik, learned counsel and submitted that since the money in question has not been recovered from the possession of any of JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 9 of 19 [10] the appellants, who were apprehended at the spot and there is no evidence that the appellants attempted to commit robbery, the conviction of the appellant under section 394 of I.P.C. is not sustainable in the eye of law. Learned counsel further submitted that since the injured (P.W.5) is the best witness to say who fired gun shot at him and the said witness has not supported the prosecution case, the evidence of the eye witness (P.W.3) so also the evidence of post-occurrence witness (P.W.4) is not sufficient to hold the appellant Deepak Mangaraj guilty under section 307 of I.P.C. so also under section 27 of Arms Act. Mr. Arupananda Das, learned Additional Government Advocate, on the other hand, submitted that the injured (P.W.5) no doubt has not supported the prosecution case for which he has been declared hostile and his previous statement recorded by the I.O. has been confronted to him but when the evidence of the eye witness (P.W.3) is very clear that it was the appellant Deepak Mangaraj who fired at the leg of P.W.5 from his pistol and the pistol was also seized at the spot from the possession of the appellant Deepak Mangaraj and the medical evidence adduced by the doctors (P.Ws.7 to 9) indicates that the injury nos.2 & 3 are the entry and exit wounds of the gun shot injury, the learned trial Court is quite justified in holding that the appellant Deepak Mangaraj fired gun shot at P.W.5 for which he JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 10 of 19 [11] sustained injury and was hospitalised, and therefore, the appeals should be dismissed. Whether the appellants are rightly found guilty U/s. 394 of I.P.C.?: 7. Adverting to the contentions raised by the learned counsel for the respective parties, coming to the charge under section 394 of I.P.C., it appears that the said charge was framed on the accusation that on 27.06.2009 at about 12.30 p.m. at village Motori near Gatiswar Dev temple, in furtherance of common intention, the appellants attempted to commit robbery of Rs.30,000/- from P.W.5. The provision under section 394 of I.P.C. deals with voluntarily causing hurt in committing robbery. ‘Robbery’ has been defined under section 390 of I.P.C. which is a special and aggravated form of either theft of extortion. Aggravation is in the use of violence or causing fear of death, hurt or restraint. It is not necessary that violence should actually be committed, even attempt to commit is enough. The hurt caused by the offender must be with the object of facilitating the committing of theft. In the case at hand, the injured (P.W.5) has not supported the prosecution case. P.W.3, the informant has stated that when he handed over Rs.30,000/- to P.W.5 and P.W.5 was JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 11 of 19 [12] counting the same, two persons came on a motor cycle and the appellant Deepak Mangaraj fired at P.W.5 on his leg by a pistol for which P.W.5 sustained severe bleeding injury on the leg and the outsiders arrived at the spot and caught hold of the appellants and thereafter the police also came to the spot and arrested the appellants. The evidence of P.W.3 is completely silent that the appellants either attempted to commit robbery or committed robbery. Nothing has been stated about the money i.e. Rs.30,000/-, which was handed over to P.W.5 by P.W.3. The I.O. (P.W.6) has not stated to have seized any cash from the possession of any of the appellants. In absence of any other material, I am of the view that the contention of the learned counsel for the appellants that the prosecution has failed to establish the charge under section 394 of I.P.C. has sufficient and indelible force. Though P.W.4 has stated that when he arrived at the spot, he found bleeding injury on the leg of P.W.5, who told him that the appellants by firing wanted to snatch away the cash from him but since P.W.5 has not supported this version, the evidence of P.W.4 in this respect is not admissible being reduced merely to a hearsay evidence. Accordingly, the appellants are acquitted of the charge under section 394 of I.P.C. JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 12 of 19 [13] Whether the appellants are guilty of attempting to commit murder of P.W.5?: 8. Now coming to charge under section 307 of I.P.C., the section deals with attempt to murder. Whether the accused had the intention to cause death or knew in the circumstances that his act was going to cause death, depends upon the facts and circumstances of each case. The determinative question is intention or knowledge, as the case may be, and not the nature of injury. The intention coupled with some overt act is sufficient to attract the provisions of section 307 of the I.P.C. It is not necessary that the injury actually caused to the victim of assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. Whatever overt act has been attributed by P.Ws.3 & 4, the same is against the appellant Deepak Mangaraj. The evidence of P.W.3 that the appellant Deepak Mangaraj fired at the leg of P.W.5 with a pistol for which he sustained severe bleeding injury on the leg, is getting corroboration from the medical evidence. P.W.7, who was the Assistant Professor, Surgery in S.C.B. Medical College & Hospital, Cuttack examined P.W.5 and noticed the following injuries: JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 13 of 19 [14] (i) Lacerated wound size 2 cm. x 1 cm. x 1.5 cm. on lateral aspect of left thigh 10 cm. above condyle of femour. (ii) Lacerated injury of size 2 cm. x 2 cm. x 1 cm. on lateral aspect of thigh 9 cm. above the lateral condyle. (iii) Lacerated injury of size 4 cm. x 1 cm. x 1 cm. on the left side of forehead. He opined the injuries to be simple in nature. However, referring to the opinion of the F.M. & T. specialist, he stated that the injury nos. (i) & (iii) are exit wounds of gunshot injury. He further stated that the Investigating Officer never produced any weapon of offence before him for his opinion and that wounds were possible by gunshot and he had not marked any punctured injury on P.W.5. Similar evidence has been adduced by P.W.8, who is the Associate Professor, Surgery at S.C.B. Medical College & Hospital, Cuttack and he has proved the bed head ticket of P.W.5 marked as Ext.12. P.W.9 Dr.Amarendra Naik, Assistant Professor in the Department of F.M. & T. at S.C.B. Medical College & Hospital, Cuttack stated that he examined P.W.5 on 09.07.2009 and noticed the following injuries: (i) Left forehead was bandaged and on opening there was a healed of linear recent injury with four stiches impressions over a length of 2.5 cm JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 14 of 19 [15] obliquely from the outer end of left eye brow upwards. The wound was completely healed with linear scar. (ii) Left mid thigh was surgically bandaged. On removal there was a partly healed wound of sixe 2 cm diameter with healed of margins with granulation tissue on the base with slough formation present on front of left thigh 8 cm. above the partela. (iii) Another similar would like that of injury nos. ii of size 2 cm z 1.5 cm on left thigh laterally, 8 cm above left knee and 4 cm. outer to injury no. ii. This wound also shows healed up margin with slough and granulation on the base.” He also stated that injury no.(i) could have been caused by a sharp cutting weapon, injury nos. (ii) & (iii) are the entry and exit wounds of gunshot injury and the patient was admitted on 27.06.2009 at the surgery ward and was examined by him on 09.07.2009. Hence, the appellant who fired at P.W.5 and caused injuries as noticed by the doctor is presumed to have sufficient knowledge that the injury caused by him could have fatal ramifications. Therefore, even though the injured P.W.5 has not supported the prosecution case but the version of P.W.3, who is the eye witness to the occurrence is getting sufficient corroboration from the medical evidence adduced by three JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 15 of 19 [16] doctors, i.e., P.Ws.7 to 9. In view of the available material on record, I am of the view that the learned trial Court is quite justified in holding the appellant Deepak Mangaraj guilty under section 307 of I.P.C. However, there is absolutely no material on record against the appellant Sandeep Kumar Sahoo to have shared common intention in committing the offence under section 307 of I.P.C. with the appellant Deepak Mangaraj and accordingly, he is acquitted of the charge under section 307 of I.P.C. Whether conviction of the appellants U/S 27 of the Arms Act is sustainable in the eyes of law?: 9. So far as the offence under section 27 of Arms Act is concerned, not only the eye witness (P.W.3) has stated that the appellant Deepak Mangaraj fired at the leg of P.W.5 by a pistol but P.W.4 has stated that the pistol was seized from the possession of Deepak Mangaraj, which was snatched away by him along with the live cartridge. The I.O. (P.W.6) has also stated that he seized one 9 mm. pistol and a live cartridge on being produced by P.W.4 in presence of the witnesses as per the seizure list Ext.2. The weapon seized was sent for ballistic opinion and the report indicates that the pistol marked as Ext.A was in working order and it was a fire arm, which comes under JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 16 of 19 [17] the purview of Arms Act and that all the cartridges, i.e., Exts.C-1 to C-4 could be fired through pistol (Ext.A) and the range of fire arm was 20’. The report further stated that the fired empty cartridge, which was marked as Ext.B was compared in firing impression and it was found that the cartridge (Ext.D) has been fired through the pistol (Ext.A). Therefore, the evidence of P.W.3 that the appellant Deepak Mangaraj used the pistol coupled with the seizure of the pistol from the possession of the appellant Deepak Mangaraj being stated by P.W.4, I am of the view that the learned trial Court has rightly found the appellant Deepak Mangaraj guilty under section 27 of Arms Act. However, there is absolutely no material for commission of offence under section 27 of Arms Act against the appellant Sandeep Kumar Sahoo. Conclusion: 10. In view of the foregoing discussions, I am of the view that the prosecution has not successfully established the charges under sections 394/307/34 of I.P.C. and section 25 of Arms Act against the appellant Sandeep Kumar Sahoo and accordingly, he is acquitted of such charges. The appellant Sandeep Kumar Sahoo is on bail and he is discharged from the liability of bail bond. The surety bonds stand cancelled. JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 17 of 19 [18] The prosecution has also failed to establish the charge under section 394 of I.P.C. against the appellant Deepak Mangaraj and accordingly, he is acquitted of such charge. The conviction of the appellant Deepak Mangaraj under section 307 of I.P.C. and section 27 of Arms Act is quite justified and the learned trial Court has justly imposed substantive sentence of seven years for the offence under section 307 of I.P.C. and R.I. for five years for the offence under section 27 of Arms Act against the appellant Deepak Mangaraj with a further direction that the sentences are to run concurrently. I deem it appropriate to uphold the substantive sentence and not to interfere in the sentence which is duly proportionate and justified. It appears from the case record that the appellant Deepak Mangaraj was taken into judicial custody on 28.06.2009 and he was never released on bail during the trial and only after he preferred Criminal Appeal before this Court, he was granted bail as per order dated 27.07.2016 and thus, he has undergone seven years of substantive sentence. In view of the passage of time, I am not inclined to impose any fine amount for the conviction of the appellant Deepak Mangaraj for the offences under sections 394/307 of I.P.C. JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 18 of 19 [19] Accordingly, the JCRLA is allowed and the CRLA is allowed in part. Orissa High Court, Cuttack Dated the 28th March, 2024/M.K.Rout, A.R.-cum-Sr.Secy. ……………………........... (S.K. Sahoo, J) Signature Not Verified Digitally Signed Signed by: MANOJ KUMAR ROUT Reason: Authentication Location: Orissa High Court Date: 12-Apr-2024 16:15:44 JCRLA No. 57 of 2012 & CRLA No. 09 of 2012 Page 19 of 19