The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 61 of 2011 (In the matter of an applications under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Mazhar Hussain ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. Sk. Zafarulla, Advocate For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 25.04.2024 : Date of Judgment: 20.06.2024 S.S. Mishra, J. The present Criminal Revision filed by the petitioner under Sections 401 and 397 of Cr.P.C. is directed against the judgment and order dated 04.09.2004 passed by the learned Additional District Judge, Nuapada in Criminal Appeal No.07 of 2002, whereby the judgment and order of conviction and sentence passed by the learned Chief Judicial Magistrate, Nuapada in G.R. Case No.296 of 1997 (T.R. No.39/2000) was confirmed. 2. The petitioner was subjected to prosecution in Komna P.S. Case No.64 of 1997 registered under Sections 341/294/323/506/34 of I.P.C. 3. The prosecution case in brief is that the petitioner, who was residing in village Semelpali, was trying to allure the female person of the village by offering money and for that act, the informant and other villagers had protested the petitioner on 13.12.1997. On 14.12.1997 at about 9 A.M. while the informant was going towards the basti, the petitioner brought out a lathi along with two other persons and assaulted the informant-Ajaya Sahoo (P.W.2). It is alleged that while the other two accused persons, namely, Saifur Khan and Abzal Khan were holding the informant, the petitioner assaulted on the head of the informant by means of a lathi as a result of which he sustained injury. The said occurrence happened in the village road, which was witnessed by Amar Singh Sabar and Dadhi Sabar. After the occurrence, the injured was shifted to hospital for treatment. Page 2 of 8 On the basis of such allegation, F.I.R. was lodged at Komna Police Station on 14.12.1997, which was registered as Komna P.S. Case No.64 of 1997. After completion of investigation, charge-sheet was submitted against the petitioner along with other accused persons under Sections 341/323/325/294/506/34 of I.P.C. The learned trial court framed charges against them and they were put to trial. 4. To bring home charges, the prosecution had examined as many as seven witnesses. Out of them, the informant/ injured, was examined as P.W.2. P.Ws.3 and 4 claimed to be the eye witnesses to the occurrence and P.Ws. 1 and 5 were the seizure witnesses of lathi under Ext.1 and P.W.7 was the Doctor, who examined the injured on police requisition and submitted the injury report (Ext.3) whereas P.W.6 was the Investigating Officer. The plea of defence is that of complete denial. In proof of their defence, no witness had been examined. 5. The learned trial Court after analyzing the entire evidence on record, found that the co-accused persons (Accused Nos.2 & 3) were not guilty and acquitted them from all the charges. The petitioner was also acquitted from the charge under Sections 341/294/506(II)/34 I.P.C., but Page 3 of 8 he was found guilty for the offence under Sections 323/325 of I.P.C and sentenced him to undergo R.I. for six months and to pay a fine of Rs. 2,000/- only, in default to undergo further S.I. for two months for the offence under Section 325 of I.P.C. and no separate sentence was passed against him for the offence under Section 323 I.P.C. 6. The judgment and order of conviction and sentence dated 23.03.2002 passed by the learned Chief Judicial Magistrate, Nuapada in G.R. Case No.296 of 1997 (T.R. No.39/2000) was called in question by filing Criminal Appeal No.7 of 2002 before the Court of the learned Additional District Judge, Nuapada by the petitioner. The appeal failed. 7. The petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Criminal Revision Petition. 8. Heard Mr. Sk. Zafarulla, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 9. Perused the impugned judgments and orders of conviction and sentence passed by both the Courts below against the petitioner and meticulously evaluated the evidence on record. Page 4 of 8 10. Three accused persons were put to trial including the present petitioner. The prosecution alleged separate overt act against each three of them in the incident of attacking the informant/victim. In the trial, barring the present petitioner, the other accused persons were acquitted only on the ground that those two accused persons had caught hold of the informant, whereas the present petitioner had given a blow to the victim resulting in simple injury. P.W.7 is the Doctor, who had examined the injured, namely, P.W.2, who deposed before the Court that he found lacerated wound of size 1½” X ½” X ¼”h on the middle of his forehead and one swelling of 2” X 2” on the back of 5th metacarpal bone on the right side. P.W.7 opined the lacerated wound to be simple in nature and might have been caused by hard and blunt object and opined swelling to be grievous in nature and the same might have been caused by hard and blunt object. The eye-witness version which eventually corroborates with the version of P.W.2, the informant indicates that the present petitioner had given lathi blow to P.W.2, the injured. P.W.1 is the witness to the seizure of the bamboo stick, which was used for commission of offence. P.Ws.3 & 4 are the eye witnesses to the occurrence, who suffered an Page 5 of 8 extensive cross-examination by the defence. The said witnesses have landed corroboration to the testimonies of P.W.2 and P.W.7. Therefore, there was no way for the petitioner to escape from the conviction on the strength of the consistence version of the witnesses. Two accused persons have been acquitted primarily on the ground that although they had participated in the occurrence, but they did not cause any injury to P.W.2. Therefore, all the accused persons were acquitted for the offence under Sections 341/294/506(II)/34 of the I.P.C. However, the present petitioner alone was rightly convicted for the offence under Sections 323/325 of the I.P.C. 11. The defence has made all attempts to create doubt in the prosecution story, but the appellate Court meticulously examined the evidence and arrived at the following conclusion: “In that view there is no conflict between the ocular testimony and that of medical evidence. Regarding discrepancies it is to be stated that there are some minor discrepancies in the evidence of P.Ws. 2, 3 & 4 which do not go the substraction of the prosecution case. Law is well settled that discrepancies which do not shake the basic version of the prosecution case may be discarded. From the injury report Ext.3 it is clearly reveals that the doctor found fracture of 5th metacarpal bone on right side and opinion the same to be grievous U/s. 320 of the IPC fracture or dislocation of bone are designated as grievous hurt. On the face of Page 6 of 8 the aforesaid discussion the contentions raised by the learned counsel on behalf of the appellant are not tenable. For the reasons recorded above, I must come to the conclusion that prosecution had clearly made out the charge u/s. 323/325 I.P.C. against the appellant beyond all reasonable doubt. As per the prosecution case, the appellant was alluring the female folk of village Semelipali by offering money to which the informant protested. So the appellant on the date occurrence had assaulted the informant by means of lathi on his forehead and right hand.” 12. I find no reason to doubt the conviction recorded against the petitioner for offences under Sections 323/325 of the I.P.C. as the prosecution could bring on record clinching evidence to sustain the conviction against the petitioner. Therefore, the present petition fails. However, I am of the considered view that sending the petitioner to custody at the belated stage would serve no purpose because the incident had taken place in the year 1997 and much has changed by now. Therefore, I am inclined to modify the sentence imposed against the petitioner. It is evident from the record that the petitioner was in custody during the trial for some time and after the conviction, he was taken into custody on 06.04.2011 and released on bail by this Court vide order dated 23.06.2011. Therefore, the petitioner had already undergone about two months of substantive sentence. The Court below has awarded the Page 7 of 8 sentence of six months of R.I. and fine of Rs.2,000/- in default payment of fine to undergo further S.I. for two months. Since the petitioner has already undergone more than two months, I am inclined to modify the sentence to that of the sentence already undergone. However, the fine of Rs.2,000/- is increased to Rs.10,000/- (Rupees Ten Thousand), in default of payment of fine, to undergo further S.I. for one month. The fine of Rs.10,000/- to be deposited by the petitioner shall be disbursed to P.W.2 (injured/victim) as per the provision of Section 357 of Cr.P.C as compensation.
Decision
13. The Criminal Revision is accordingly allowed and disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 20th 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 15:14:53 Page 8 of 8