Criminal Appeal No. 62 of 2006 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.21 of 2011 (In the matter of an applications under Sections 401 & 397 of the Criminal Procedure Code, 1973) ----------- Benudhar Naik & another ……. Petitioners -versus- State of Orissa ……. Opp. Party For the Petitioners : Mr. B.R. Behera, Advocate For the Opp. Party : Mr. B. K. Ragada, Addl. Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 17.05.2024 Date of Judgment : 20.06.2024 S.S. Mishra, J. The present Criminal Revision filed under Sections 401 & 397 of Cr.P.C. is directed against the judgment and order dated 13.12.2010 passed by the learned Sessions Judge, Dhenkanal in Criminal Appeal No.62 of 2006, whereby the conviction recorded by the learned Assistant Sessions Judge,
Legal Reasoning
Dhenkanal in C.T. (Sessions) Case No.45 of 2004 has been confirmed and the order of sentence has been modified. 2. The petitioners were subjected to prosecution in Dhenkanal Sadar P.S. Case No.117 of 2000 registered under Sections 307/34 of the IPC. 3. The prosecution case in brief is that on 23.05.2000 at about 2.00 P.M., one Dinabandhu Sahu came to the house of the informant (P.W.2) and informed him that while his younger brother Lambodhar Dhal was returning from the Dhenkanal Block Office by his scooter, on the way near Manipur, on the public road of Harijan Sahi, the accused persons, namely, Benudhar Naik (petitioner no.1), one Bidu Naik and Gouranga Naik (petitioner no.2) restrained his younger brother on the way and assaulted him by deadly weapons for which he was lying on the road with bleeding injuries. On receipt of such information, the informant and others reached at the spot and found the injured lying on the road with bleeding injuries on his head and leg. Immediately, the injured was shifted to the hospital for treatment. Thereafter, they reported the matter to the Outpost over telephone. On the basis of such allegation, F.I.R. was lodged at Dhenkanal Sadar Police Station on 23.05.2000, which was registered as Dhenkanal Sadar P.S. Case No.117 of 2000 under Sections 307/34 of IPC. After completion of investigation, charge- sheet was submitted against the accused persons under Sections 307/34 of IPC Page 2 of 11 and charges were framed against them under those Sections. The petitioners were put to trial. 4. To bring home the charges, the prosecution had examined as many as twelve witnesses and exhibited eleven documents. The plea of defence was that of complete denial. In proof of their plea, defence had examined one witness, namely, Nityananda Naik as D.W.1. 5. The learned trial Court analyzed the entire evidence on record, found the petitioners guilty of the offences under Sections 307/34 of I.P.C. and convicted them thereunder and sentenced each of the petitioners to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- each, in default, to further undergo simple imprisonment for six months for the offences under Sections 307/34 of I.P.C. The judgment of conviction and sentence dated 14.11.2006 passed by the learned Assistant Sessions Judge, Dhenkanal was called in question by filing Criminal Appeal No.62 of 2006 before the Court of learned Sessions Judge, Dhenkanal by the petitioners. 6. The learned appellate Court vide its judgment and order dated 13.12.2010 has confirmed the conviction and modified the sentence inter alia stating as under: “16. In the result, the appeal being devoid of merit stands dismissed. The impugned order of conviction and sentence is Page 3 of 11 confirmed. However, I find that the learned Trial Court has directed the appellants to undergo six months S.I. in default of payment of fine, which is not proper in view of provision of Section 66 of the Indian Penal Code. Accordingly, I modify the default sentence to six months R.I. instead of S.I.” 7. The learned appellate Court has taken into consideration the evidence of the Medical Officer (P.W.10), the injuries sustained by the injured and the intention of the petitioners to cause death of the injured, upheld the conviction recorded by the Court below. However, it modified the default sentence to six months R.I. instead of S.I. 8. The petitioners have challenged the judgment/order of conviction and sentence in the present Revision Petition. 9. The Revision petition is against the concurrent findings of two Courts below on facts. It is an admitted fact that the injured had received multiple injuries and the injuries sustained by the victim on his head were grievous in nature, whereas other injuries were stated to be simple in nature. Insofar as the present petitioners are concerned, the injuries caused by them alleged to be simple in nature. That could be found from the evidence of P.Ws.5, 6 & 8, who were the eye witnesses to the occurrence and also the doctor (P.W.10), who treated the injured. The trial Court has dealt with the evidence of P.Ws.5, 6, 8 & 10 and arrived at the following conclusion: Page 4 of 11 P.W.5 Lingaraj Dhal had identified the accused persons of the case, so also the injured. He has stated that the occurrence took place on 28.05.2000 at about 2 P.M. at Harijan Sahi of his village road. He has stated that on the relevant day, Rajanikanta Dhal, Dhirendra Kumar Rout and he, himself had came from village Sadeibereni to their village Manipur. He has stated that they saw that the scooter of Lambodar was lying on the ground and Lambodar was lying by the side of the road in a pool of blood. There, he saw that the accused persons armed with weapons. He saw the accused Bidu Naik was armed with farsa, accused Benu Naik (petitioner no.1) was armed with an axe and other accused Gouranga Naik (petitioner no.2) was holding a lathi. He has stated that accused Benu assaulted on the leg of the injured by an axe and accused Bidu assaulted on the head of the injured by means of a farsa. He has stated that there was profuse bleeding from the head of the injured and the brain matters were visible to the naked eyes. He stated to have raised hulla and witnesses, namely, P.W.1 and Bimbadhar Dhal reached at the spot. He stated to have taken the injured to the hospital by a trekker. Further, he has stated that initially the injured was taken into the District Headquarters Hospital, Dhenkanal and from there, he was shifted to S.C.B. Medical College & Hospital, Cuttack. Further, he has stated that by that time the injured was lying Page 5 of 11 in a coma stage and he was unable to speak and identify the persons. He has stated that the injured was his brother. This witness was cross-examined at length and was taken as a relative of the injured and a witness to the occurrence. So, the evidence of this witness was most important to be examined. In his cross-examination, he was unable to tell the registration number of the scooter as well as the date of birth of his injured brother. He was even unable to tell the date of his marriage and date of birth of his son. He has stated that Dinabandhu Sahu had seen the entire occurrence. He has stated that he has seen only the assault on his head and the three accused persons were present at the spot. Though he has been suggested by the defence that accused Bidu was the driver in the trekker of his brother, he has denied the same. Further, he has stated that his lungi and shirt were stained with blood. He has shifted his injured brother in the trekker of one Purna Ch. Sahu of his village. He went home and the injured was taken to the hospital. Further, he has stated that the trekker owner Purna Ch. Sahu was the son of one Kanduri Sahu. Further, he has stated that if somebody had to come from his village to Headquarters Hospital, Dhenkanal, he has to cross the local Outpost. He has stated that he had not seen Bishnu Ch. Dhal after returning to his village. Further, he had stated that at the time of occurrence, there was no phone Page 6 of 11 facility in their village, which turned down the fact of reporting to the police about the occurrence through phone. He has stated that the left leg of the injured was injured. Though he has been suggested that the accused persons are inimical to his family, he denied the same. So, I found no reason to disbelieve this witness. P.W.6, another eye-witness who had identified the injured and the accused persons, he has stated that at the relevant date and time of occurrence, he was coming from Sankarpur to his village and on the way, Dhirendra Rout and Lingaraj Dhal joined him and then the three came to home. They saw the injured had been assaulted by means of a farsa on his head by accused Bidu Naik and accused Benu assaulted the injured on his left leg by means of a tangia and the other accused Gouranga assaulted by means of a lathi. There was bleeding injury on the hand and leg of the injured. He has stated that out of fear, he returned back to some distance and raised hulla. When other persons assembled at the spot, the accused persons fled away. The injured was shifted to Headquarters Hospital, Dhenkanal by a trekker and till today he is lying being paralyzed. Though this witness has been cross-examined at length, no material has been elicited from his cross-examination so as to disbelieve his Page 7 of 11 evidence. So, the evidence of this witness is supporting in material particulars to the prosecution case. Dhirendra Rout (P.W.8), who is a co-villager of the accused persons and the injured, he has given the date, time and place of occurrence. He has stated that he along with Lingaraj Dhal and Rajanikanta Dhal were returning from Sadeibereni to his village. At that time, Lambodar came by a scooter and overtook them. He saw that the accused persons chased the injured and assaulted. He has stated that the accused Bidu assaulted on the head of injured by means of a farsa for which he fell down. Accused Gouranga assaulted the injured by means of a lathi and accused Benu assaulted on the left leg of the injured by an axe for which the injured sustained bleeding injury. He has stated to have raised hulla and many persons reached at the spot. He has stated that Bishnu Ch. Dhal and Bimbadhar Dhal took the injured to the District Headquarters Hospital, Dhenkanal from where he was referred to S.C.B. Medical College & Hospital, Cuttack. He has stated that from half a kilometer, the injured overtook them and at the spot, there was a bamboo bush, which was standing in between them. The counsel for the defence raised a doubt as to how this witness would see the assault by the accused persons while he was behind the bamboo bush. It is not a fact that this witness was in a static Page 8 of 11 condition and only the scooterist was advancing. Along with the scooterist, this witness might have advanced and seen the occurrence. So, the evidence of this witness is supporting to the prosecution case. P.W.10, Dr. Basanta Kumar Mishra working as Assistant Surgeon, Neuro Surgery Department of S.C.B. Medical College & Hospital, Cuttack who admitted the patient, i.e., the injured on 23.05.2000 in his Department, he has stated that the condition of the patient was serious for which C.T. scan and X- ray were done. Further, he has stated as there was injury on the skull, there were fractures on the skull and the brain matters were leaking. Further, he has stated that on 03.05.2000 he, himself and Dr. N.R. Nanda, Professor of Neuro Surgery Department operated the case and found compound fractures on the skull. So, the patient was discharged in a vegetative state, i.e., the man will live without any response. He has stated that the injured was discharged prior to giving of the medical report as police sent medical requisition letter. The medical report was prepared with consultation to the bed head ticket of the injured. The nature of the injury was grievous and can be caused by farsa blow and he had given his report vide Ext.4/2. He has also exhibited the photo copy of the X-ray report of the brain and the discharge certificate of the injured. So, the evidence of the Doctor supports the case of the prosecution. Page 9 of 11 10. It is apparent from the record that the farsa blow dealt by the main accused, i.e., Bidu had caused serious injury to the injured as a result of which he has completely crippled to the extent that he was not able to depose either before the police or before the Court. The main accused Bidu has been absconding. From the record, it is seen that petitioner no.1 was armed with a tangia and petitioner no.2 was armed with a lathi. However, they have dealt blows on the leg and other part of the body of the injured, those injuries sustained by the victim were simple in nature. After analyzing the evidence of P.Ws.5, 6, 8 & 10, the Court below convicted the petitioners for commission of offences under Sections 307/34 of the IPC. In view of the seriousness of the injuries sustained by the injured/victim, the Court below sentenced the petitioners to undergo R.I. for a period of seven years each and to pay a fine of Rs.1,000/- each, in default, to further undergo S.I. for a period of six months each for the offences under Sections 304/34 of the IPC. 11. The evidence adduced by the prosecution is unimpeccable against the petitioners. Taking into consideration the evidence on record and the testimonies of P.Ws.5, 6, 8 & 10, no fault could be found in the conviction recorded by the Courts below. However, the sentence awarded by the Courts below is required to be altered in view of fact that the injuries caused by the Page 10 of 11 petitioners to the victim were simple in nature and 24 years have lapsed in between. Accordingly, this Court reduces the sentence awarded by the Court below from R.I. for seven years to R.I. for one year and the fine of Rs.1,000/- increased to Rs.25,000/- (Rupees Twenty Five Thousand) each and in default, the petitioners are liable to undergo S.I. for three months each. The fine amount to be deposited by the petitioners shall be disbursed to the injured as per provision of Section 357 of the Cr.P.C. 12. With the aforementioned modification of sentence, the Criminal Revision is partly allowed. ……………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 20th of June, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Jun-2024 15:14:51 Page 11 of 11