Criminal Appeal No. 8 of 2010 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.178 of 2016 An application under Section 401 of Cr.P.C. Biranchi Nayak …. Petitioner Mr. D.P. Dhal, Sr. Adv. -versus- State of Orissa …. Opposite Party Mr. Samaresh Jena, ASC CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 27.11.2024 | Date of Judgment: 27.11.2024 ______________________________________________________ A.K. Mohapatra, J. : 1. The present criminal revision application has been filed at the instance of the Petitioner against the judgment dated 08.12.2015 in Criminal Appeal No.8 of 2010 by the learned
Legal Reasoning
Sessions Judge, Nayagarh, thereby confirming the judgment dated 22.02.2010 passed by the learned Judicial Magistrate First Class, Daspalla, wherein the Petitioner has been found to be guilty for commission of offence punishable under Sections 341, 323, 34 of IPC and the Petitioner has been sentenced to undergo simple imprisonment for six months for commission of offences under Page 1 of 7 Sections 323/34 of IPC. He has also been sentenced to undergo simple imprisonment for one month for commission of offence under Sections 341/34 of IPC. Both the sentences have been directed to run concurrently. 2. The prosecution case in brief is that on 09.10.1995, the OIC Gania P.S. received a written information from the Informant, namely, Narendra Kumar Parida, inter alia alleging that on 08.10.1995 at about 8 P.M. he was performing his duty as per the direction of the Forester and accordingly, proceeded to Manibhadra check gate to perform his duty. At that time, near Ganapateswar Mahadev Temple, which is situated on the road, the Petitioner along with other accused persons detained him and abused him in filthy language. It has also been alleged that the accused persons locked the Informant inside a room. The Informant was able to get out of the room when another person opened the door upon hearing the Informant’s scream. When the Informant came out of the room, the accused Biranchi and three other persons assaulted him by fist blows and lathi. As a result, the Informant has sustained bleeding injuries. On the basis of the aforesaid allegation, the FIR was registered at Gania P.S. as P.S. Case No.23 of 1995. After conclusion of the investigation, charge-sheet was filed against four accused persons including the present Petitioner. 3. During the trial, the prosecution relied upon the evidence of six witnesses out of which P.W. Nos.1 to 3 are independent witnesses. However, it appears that the independent witnesses Page 2 of 7 have not supported the prosecution case. Basing upon the evidence of the Informant as well as the medical evidence, the learned trial Court found the Petitioner guilty for commission of offence punishable under Sections 341, 323, 34 of IPC. Accordingly, he has been sentenced to undergo imprisonment as has been indicated hereinabove. 4. Being aggrieved by the judgment of the trial Court dated 22.02.2010, the Petitioner preferred a revision before the Appellate Court which was registered as Criminal Appeal No.8 of 2010. The learned Appellate Court vide judgment dated 08.12.2015, confirmed the judgment of the learned trial Court. Being aggrieved by the judgment of the learned Appellant Court confirming the judgment of the learned trial Court, the Petitioner has approached this Court by filing the present application. 5. Heard learned counsel for the Petitioner as well as the learned Additional Standing Counsel for the State. Perused the records. 6.
Legal Reasoning
Learned counsel for the Petitioner at the outset submitted that the judgments of both the Courts below are unsustainable in law, in as much as there is no material to implicate the present Petitioner in the alleged crime. He further elaborated that the independent witnesses, i.e. P.W. Nos.1 to 3 have not supported the case of the prosecution. However, the learned trial Court convicted the Petitioner on the basis of the evidence of the Informant as well as the medical evidence. He further contended Page 3 of 7 that the Informant, being an interested witness, his evidence could not have been relied upon without it being corroborated by any of the independent witnesses. It was also contended that there are discrepancies in the medical evidence which has been brought out during the cross-examination of the doctor, who was examined as P.W. No.6. In the aforesaid background, learned counsel for the Petitioner contended that the conviction of the Petitioner under the alleged offences is unsustainable in law. 7. Learned counsel for the Petitioner further argued that the judgments of the learned Courts below have been challenged by the Petitioner on merits as well as on the ground that the alleged occurrence took place in the year 1995. As such, upholding the said judgments and sending the Petitioner back to custody, after a period of almost three decades, would not only destabilize the Petitioner and his family but also cause serious prejudice to them as they must have otherwise been established in the society with the passage of time. He further submitted that taking into consideration the seriousness and gravity of the allegation, further keeping in view the fact that no independent witnesses have supported the case of the prosecution, the impugned judgments of the trial Court as well as the Appellant Court be set aside and the Petitioner be set at liberty. 8. Learned counsel for the State on the other hand supported the judgments of the learned Courts below. Page 4 of 7 9. In course of his argument, learned counsel for the State submitted that the evidence of the Informant as well as the medical evidence, backed by the examination of the doctor i.e. P.W.-6, support the judgments of the learned Appellate Court as well as the trial Court. It was also contended that even though the independent witnesses have not supported the prosecution’s case, there are other materials to convict the present Petitioner in the alleged crime. Further, in reply to the contention of the learned counsel for the Petitioner that the independent witnesses have not supported the case of the prosecution, learned counsel for the State submitted that the evidence of the Informant as well as the supporting medical evidence is good enough to convict the Petitioner as well as the other accused persons for the commission of crime as alleged in the FIR. Therefore, it was contended that the trial Court has not committed any illegality in convicting the Petitioner under Section 341, 323 & 34 of IPC. Further, referring to the medical evidence, learned counsel for the State submitted that the injured has sustained bleeding injury. Therefore, no fault can be found with the judgments of both the Courts below. On such grounds, learned counsel for the State submitted that the revision petition is devoid of merit and accordingly the same should be dismissed. 10. Having heard the learned counsels appearing for the respective parties and on a careful examination of the materials on record, further upon a close scrutiny of the judgments delivered by the learned Courts below, this Court observes that it is a fact Page 5 of 7 that the independent witnesses, i.e. P.W. Nos.1 to 3, have not supported the case of the prosecution. However, this Court is also of the considered view that a conviction can be sustained on the basis of the evidence of the Informant supported by the medical evidence. Particularly, when nothing has been elicited from the Informant during cross-examination. As such, the evidence of the Informant stands and on such basis the conviction can be sustained. Otherwise, also, even though the independent witnesses have not supported the prosecution case, there are other materials on record that clearly established the guilt of the present Petitioner. Accordingly, this Court is not inclined to interfere with the judgments of the learned Courts below. 11. However, taking into consideration the fact that the occurrence is of the year 1995, and that the Petitioner was on bail all throughout during trial as well as during the pendency of the appeal before the Appellate Court, this Court is of the view that remanding the Petitioner to jail custody after expiry of almost three decades would cause injustice to the family of the Petitioner and there is every likelihood that the Petitioner might be adversely affected. In view of the aforesaid consideration, this Court is inclined to take a lenient view, so far the sentences are concerned. Accordingly, the sentence of simple imprisonment is hereby modified to the extent that the Petitioner shall not undergo simple imprisonment. In lieu thereof he shall pay a fine of Rs.5,000/- (Rupees Five Thousand). Accordingly, while upholding the conviction of the Petitioner, the sentence is Page 6 of 7 modified to the extent that the simple imprisonment awarded by the learned Courts below is hereby set aside. In lieu thereof the Petitioner shall pay a fine of Rs.5,000/- (Rupees Five Thousand). Further, in exercise of power under Section 357 of Cr.P.C., it is directed that the aforesaid fine amount be paid to the Victim as compensation. 12. With the aforesaid observations/directions, the CRLREV
Decision
stands disposed of. (Aditya Kumar Mohapatra) Judge Orissa High Court, Cuttack The 27th November, 2024/ S.K. Rout, Jr. Stenographer Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Nov-2024 19:06:11 Page 7 of 7