The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.101 of 2013 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Pramod Naik ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Ms. Agnisikha Ray, Advocate For the Opp. Party : Mr. Sangram Keshari Mishra, Addl. Standing Counsel CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 09.07.2024 : Date of Judgment: 30.07.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 read with Section 397 of Cr.P.C. is directed against the judgment and order dated 03.12.2012 passed by the learned Additional Sessions Judge, Kuchinda, District-Sambalpur in Criminal Appeal No.7 of 2012, whereby the judgment of conviction and order of sentence dated 15.09.2012 passed by the learned S.D.J.M., Kuchinda, District-Sambalpur in G.R. Case No.209 of 1994/Trial No.611 of 1994 has been confirmed. 2. The prosecution case in brief is that on 10.08.1994 at about 9 P.M. in village Mahulchhapal, the accused being armed with one sword and one Bhujali went to the house of one Bunde @ Bipin Naik, rebuked him uttering obscene words, and threatened to cause his death. Consequently, Bunde Naik being scared closed the door of his house and remained inside. His daughter went and called the informant Jay Narayan Patel. The informant came and found the accused causing damage to the clay- tiles of the roof of the house of Bunde Naik. When the informant requested the accused not to do so, the accused became enraged, rebuked him uttering obscene words, threatened to kill him and dealt a blow by means of the sword causing bleeding injury on the fore-head of the informant. Therefore, the informant left the spot and reported the matter before the police of Garposh Out-Post. The A.S.I. of Police of Garposh Out-Post entered the facts in the Station Diary, took up the investigation of the case and sent the F.I.R. to the O.I.C. of Govindpur Police Station, Page 2 of 8 who registered Govindpur P.S. Case No.47/94, dated 10.08.1994 and directed the A.S.I. of Police Sri S.K. Das Mohapatra to continue the investigation of the case. 3. During investigation, the I.O. examined the informant, sent him to Garposh P.H.C. for his medical examination, visited the spot, examined other witnesses, seized the weapons of offence, arrested the accused and forwarded him to the Court. The I.O. of the case received the Medical examination report and after completion of the investigation, submitted the charge-sheet. The petitioner stood charged of offences under section 294/324/426/448/506 IPC and was put to trial. 4. To bring home the charges, the prosecution had examined as many as 9 witnesses and 5 documents were exhibited. The plea of defence was that of complete denial. 5. The learned Trial Court analyzed the entire evidence on record and while convicting the petitioner on various counts sentenced him to undergo R.I. for a period of six months, one month and one month for the offence under Sections 324, 426 & 447 of IPC respectively. The sentences were directed to run concurrently. Page 3 of 8 6. The judgment of conviction and the order of sentence dated 15.09.2012 passed by the learned S.D.J.M., Kuchinda, District- Sambalpur in G.R. Case No.209 of 1994/Trial No.611 of 1994 was called in question by filing Criminal Appeal No.7 of 2012 before the Court of the learned Addl. Sessions Judge, Kuchinda, District- Sambalpur, by the petitioner. 7. Having failed in the appeal, the petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. 8. Heard Ms. Agnisikha Ray, learned counsel for the petitioner and Mr. Sangram Keshari Mishra, learned Additional Standing Counsel for the State. 9. Perused the impugned judgment of conviction and order of sentence passed against the petitioner and meticulously evaluated the evidence on record. 10. After the investigation, charge sheet was filed in the present case. The petitioner stood charged for the alleged offences under Sections 294/ 324/426/448/506 IPC and was put to trial. Page 4 of 8 11. The prosecution examined as many as 9 witnesses including the victim, who was also the informant in this case. P.Ws.5 & 6 were the seizure witnesses, who did not support the prosecution. 12. In the present case, admittedly neither the Doctor, who examined the injured nor the I.O. of the case have been examined by the prosecution. Even P.Ws.5 & 6, those who were the seizure witnesses, did not support the prosecution case. Even then the Trial Court proceeded to convict the petitioner for the offences under Sections 324/426/447 IPC and sentenced him to undergo six months R.I. for the offence under Section 426 IPC and various other sentences for other offences. 13. Being aggrieved by the judgment of conviction and the order of sentence recorded against the petitioner passed by the learned S.D.J.M., Kuchinda vide judgment dated 15.09.2012 in G.R. Case No.209 of 1994/Trial No.611 of 1994, the petitioner filed Criminal Appeal No.7 of 2012 before the learned Addl. Sessions Judge, Kuchinda, District- Sambalpur. The Appellate Court vide its judgment dated 03.12.2012, although acquitted the petitioner for the offence punishable under Section 426 IPC, but found the petitioner guilty for the offences under Page 5 of 8 Sections-324/447 IPC. Accordingly, the sentence order in lieu of the conviction for the offences under Section-324 & 447 IPC was confirmed. The Appellate Court, while dealing with the contention of the defence have, inter alia, recorded as under: “7. It is a fact that the I.O. as well as the medical officer are not examined in the case in hand to prove the alleged search and seizure of the weapon of offence. P.Ws.5 and 6 who are seizure witnesses also did not support regarding seizure of the alleged weapon of offence from the appellant. Further more P.W.3 in his cross-examination has indirectly admitted that he had stated the facts which he has deposed in his examination in chief as stated before the I.O., but there is no specific question put by the defence counsel what are the statement has not stated before the I.O. which he had deposed in his examination in chief. So such type of general suggestion will noway helpful to the case of the defence, rather from the evidence given by P.Ws.1 and 3 clearly established that convict-appellant had given sword blow to the forehead of P.W.1 voluntarily. From the case of the prosecution as well as from the evidence of P.Ws.7 to 9, it clearly reflects that P.W.1 came to the spot being called by P.W.8 and thereafter the incident was taken place which P.Ws.7 to 9 could not visualize as they are inside the room out of fear due to the act of the convict. No doubt the independent witnesses did not support the case of the prosecution and P.W.3 is a relation of P.W.1, but the genesis of the offence u/s 324 IPC is clearly made out against the appellant as he voluntarily caused hurt to the informant by sword without any provocation from his side, rather as per the prosecution story he was only trying to settle the matter by way of inference between both the parties. So I do not find any reason to disagree with the finding laid by the lower court as regards the offence u/s 324 I.P.C.” 14. The Courts below have convicted the petitioner only on the basis of the testimony of P.W.1, the injured. The evidence of P.Ws.7 to 9 landed corroboration to the ocular testimony of P.W.1. That persuaded Page 6 of 8 the Court below to record a conviction against the petitioner. However, the fact that the Doctor, who has examined the injured has not been examined even the I.O. has not been examined is fatal to the prosecution. The seizure witnesses namely, P.Ws.5 & 6 have also not supported the prosecution. In absence of the medical evidence on record, the nature of injury sustained by the injured could not be proved by the prosecution. The I.O. on whose requisition the victim was examined by the Doctor was also not proved on record, as the I.O. himself remained absent in the witness box. 15. The Courts below have missed these vital issues and glossed over the plea of the defence regarding the non-examination of the I.O. and the Doctor. The reasoning supplied by the Courts below for finding the petitioner guilty for the offences under Sections-324/447 IPC is not sustainable in law as there is absolutely no credible evidence led by the prosecution. 16. In view of the fact that, the prosecution could not prove the case beyond all reasonable doubts to sustain the charges, the petitioner is entitled to acquittal of all the charges brought against him. Page 7 of 8 17. Regard being had to the aforementioned, the judgment and order dated 15.09.2012 passed by the learned S.D.J.M., Kuchinda, District- Sambalpur in G.R. Case No.209 of 1994/Trial No.611 of 1994 and the judgment and order dated 03.12.2012 passed by the learned Additional Sessions Judge, Kuchinda, District-Sambalpur in Criminal Appeal No.7 of 2012 are set aside and the petitioner is acquitted of the offences under Sections 324/447 of IPC. The bail bond, if any, furnished by the petitioner stands discharged. 18. The Criminal Revision is accordingly allowed. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 30th July, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 01-Aug-2024 19:31:36 Page 8 of 8