Criminal Appeal No. 6 of 2007 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.575 of 2012 (In the matter of an application under Sections 401 r/w Section-397 of the Criminal Procedure Code, 1973) Laxmidhar Barad & others ……. Petitioners -Versus- State of Orissa ……. Opposite Party For the Petitioners: Mr. A.K. Dash, Advocate For the Opp. Party: Mr. B.K. Ragada, Addl. Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 20.06.2024 : Date of Judgment: 16.07.2024 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 31.07.2012 passed by the learned Sessions Judge, Nayagarh in Criminal Appeal No.6 of 2007, whereby the judgment of conviction and order of sentence dated 20.02.2007 passed by the learned J.M.F.C., Khandapara
Facts
in G.R. Case No.85/1998/Trial No.442 of 1998 has been confirmed. 2. The prosecution case as per the F.I.R. is that on 11.07.1998 at about 9 a.m., one Banamali Parida of village- Sukapokhari along with his father was working in their field at Nahakabati. At that time some persons namely, Amina Parida, Arjun Barad, Akula Parida and Laxmidhar Barad came there. Those persons were armed with weapons like Kati, Bhujali, Katua, Kodi etc. Accused Amina dealt blows Narayan by a Kati causing bleeding injury in his head. Laxmidhar dealt Bhujali blow to Narayan causing injury in his ear. Accused Akula dealt on the head of Banamali causing severe injury and Arjun Barad had dealt Narayan by the handle of the spade causing injury in his left thumb. With a view to kill them, the accused persons chased Narayan and Banamali upto the village basti. When Banamali and Narayan reached near the village, one Prasanna Parida, Benudhar Parida and others came to their rescue. The accused persons then left the spot. 3. Banamali verbally reported the matter at the Police Station. Police advised him to go to the hospital. Later, Banamali Parida gave a written Page 2 of 9 F.I.R. at Fategarh Police Station. After completion of investigation, the
Legal Reasoning
I.O. finding prima facie evidence against the accused persons, submitted the charge sheet. Accordingly, charge was framed against accused persons by the learned Trial Court and put them to trial. 4. To bring home charges, the prosecution had examined as many as 7 witnesses and 5 documents were exhibited. The defence had exhibited four documents. 5. The learned Trial Court analyzed the entire evidence on record and found that the Petitioners were not guilty of the offence under Sections 341/506 of I.P.C, but found them guilty for the offences under Sections 323/324/34 of I.P.C. and sentenced them to undergo R.I. of one year each count and R.I. of three months for the offence under Section 323 IPC. However, the substantive sentences were directed to run concurrently. 6. The judgment of conviction and order of sentence dated 20.02.2007 passed by the learned J.M.F.C., Khandapara in G.R. Case No.85/1998/Trial No.442 of 1998 was called in question by filing Page 3 of 9 Criminal Appeal Criminal Appeal No.6 of 2007 in the Court of the learned Sessions Judge, Nayagarh, by the petitioners. 7. Having failed in their appeal, the petitioners have challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. 8. Heard Mr. A.K. Dash, learned counsel for the petitioners and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 9. Perused the impugned judgment and order of conviction and sentence passed against the petitioners and meticulously evaluated the evidence on record. 10. The petitioners stood charged for the offences punishable under Sections 323/324/341/506/34 IPC. 11. The prosecution examined 7 witnesses out of whom P.Ws.1 & 3 were the injured witnesses whereas P.W.8 was the Medical Officer. P.Ws. 4 & 5 were the Police Officers, who had investigated and filed the charge sheet in the present case. 12. Learned Trial Court by relying upon the testimony of P.Ws.1 & 3 which draws corroboration from the testimony of P.W.8 has convicted Page 4 of 9 the petitioners for the offences under Sections323/324/34 IPC. However, in so far as the offences under Sections341/506 IPC are concerned learned Trial Court has disbelieved the evidence of the injured witnesses as well as the attending circumstances and acquitted the petitioner from those charges. While declining the prayer of the petitioners for grant of benefit of the Probation of Offenders Act, learned Trial Court went on to sentence the petitioners to undergo R.I. of one year each for the offence under Section 324 IPC and R.I. of three months for the offence under Section 323 IPC. 13. The judgment of conviction and order of sentence dated 20.02.2007 passed by the learned J.M.F.C., Khandapara in Trial No.442 of 1998 arising out of G.R. Case No.85 of 1998 was assailed by the petitioners before the appellate Court by filing Criminal Appeal No.6 of 2007. 14. Learned Sessions Judge, Nayagarh vide its judgment and order dated 31.07.2012 had dismissed the appeal confirming the conviction and sentence passed by the Court below. Page 5 of 9 15. I have perused the judgments of the Courts below and evaluated the evidence brought on record by the prosecution. To test the sustainability of the conviction recorded by the Courts below for the offences under Sections 323/324/34 IPC I have carefully gone through the evidences of the injured witness, I am in total agreement with the findings of the Court below so far as the recording of the acquittal in favour of the petitioners for the alleged offences under Sections 341/506 IPC is concerned. 16. The testimony of P.Ws.1 & 3, the injured witnesses are consistent and they sustained lengthy cross-examination of the defence, nothing could be elucidated to lean support to the case of defence as taken by the petitioners. It is admitted on record that P.W.1 sustained two injuries whereas P.W.3 sustained three injuries. The evidence of P.W.8 indicates that the injuries sustained by P.Ws.1 & 3 were simple in nature. 17. The defence has pointed out contradictions in the evidence of P.Ws.1 & 3 vis-à-vis the evidence of the Doctor, i.e., P.W.8. Learned Trial Court has dealt with those objections in para-9 of its judgment which reads as under: Page 6 of 9 “9. It is worthwhile to advert the objections raised by the defence. It was contended that medical evidence contradicts the testimony of P.W.3. Attention was drawn in this regard to the statements of P.W.3 in paragraph-9 and 10 of his deposition. In para-9, P.W.3 deposed that while he was lying in his left side, he had been dealt with ten blows. In para-10 he further stated that Laxmidhar had dealt him 14 to 15 blows; while he was lying in his left side. It is argued that if P.W.3 was lying to his left, he must have sustained severe injuries on right side of his body. But as per medical evidence no injury had been found on the right side of P.W.3. True it is that during cross-examination P.W.3 has exaggerated the incident. But for that the entire testimony of prosecution witnesses cannot be thrown at Bay of Bengal. When exaggerations are made by witnesses, it becomes the duty of the Court to separate grain from the chaffs. The fact that the doctor had not found any injury on the right side of P.W.3 only speaks that he had not sustained any injury on his right side. This leads to the deduction that the statement of P.W.3 that he had been dealt blows on his right side is false. But it in no way suggest that P.W.3 had not sustained other injuries as stated by him and doctor (P.W.5). It is the case of prosecution that P.W.1 and P.W.3 had been seriously injured. P.W.1 stated that the accused had chased him and his father upto the village. It is argued by the defence that it is improbable for a person seriously injured to run away. Legs of human are meant for movement. As per Ext.2 and Ext.3, neither P.W.1 nor P.W.3 had sustained any injury on his legs. It is natural for persons being assaulted to run away for their protection especially when their movement has not been impaired.” 18. The reasoning recorded by the Trial Court to deal with the objections raised by the defence to create a doubt in the prosecution story is just and proper on the face of the evidence on record. Therefore, I am in complete agreement with the same. The Appellate Court has also appreciated the evidence of P.Ws.1 & 3 vis-à-vis P.W.8 in the same spirit and arrived at a finding that the evidences are trustworthy. Page 7 of 9 19. I concur with the findings of the Courts below. Therefore, the conviction recorded by the Courts below against the petitioners for the offences under Sections 323/324/34 IPC is just, proper and suffers with no infirmity. Accordingly, the conviction is upheld. 20. At this stage, Mr. Das, learned counsel for the petitioners submits that in view of the fact that the incident had taken place way-back in the year 1998 and the fact that there was a cross-case against the informant party and there is a chequered history behind the dispute, sending the petitioners to suffer incarceration would serve no purpose, rather animosity amongst them being co-villagers shall increase. The petitioners have also not misused the concession of bail granted to them during the pendency of the case in trial and appeal. Therefore, they should be granted the benefit of Probation of Offenders Act. He submitted that, although the same prayer was made by the petitioners before the Court below, the same was turned down. 21. I am of the considered view that the case of the petitioners is covered by the Judgment of this Court in the case of Pathani Parida & Page 8 of 9 another vs. Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp- II) OLR 469. 22. Accordingly, the present Criminal Revision in so far as the conviction is concerned is turned down. But instead of sentence the petitioners to suffer imprisonment, this Court directs the petitioners to be released under Section 4 of the Probation of Offenders Act for a period of one year on their executing bond of Rs.5,000/- (Rupees Five Thousand) each with one surety each for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the petitioners shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year.
Decision
23. The Criminal Revision is accordingly disposed of. The High Court of Orissa, Cuttack The 16th July, 2024/Subhasis Mohanty, Personal Assistant …………………. (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 22-Jul-2024 13:57:55 Page 9 of 9