The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.195 of 2011 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) Mana @ Manoranjan Sahu & Others ……. Petitioners -Versus- State of Orissa ……. Opposite Party For the Petitioners : Mr. P.C. Chhinchani, Amicus Curiae For the Opposite Party : Mr. B.K. Ragada, Additional Government Advocate CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 28.06.2024 : Date of Judgment: 30.07.2024 S.S. Mishra, J. This Criminal Revision petition filed under Section 401 of Cr.P.C. is directed against the judgment and order dated 24.12.2010 passed by the learned Additional Sessions Judge, Balangir in Criminal Appeal No.2 of 2009, whereby the judgment of conviction and order of sentence dated 09.01.2009 passed by the learned C.J.M.-cum-Assistant Sessions Judge, Balangir in Sessions Case No.1/2 of 2008 has been confirmed. 2. Bereft of unnecessary details, the prosecution case in a nutshell is that on 11.03.2006 midnight while P.W.4 was returning home after answering the call of nature, three accused persons tied a gunny bag on his mouth and assaulted him with lathies. P.W.4 sustained bleeding and fracture injuries on both the hands. When he raised hullah, his son, P.W.3, rushed to the spot along with P.W.6 and others. They rescued P.W.4 from the spot and thereafter P.W.3 lodged the F.I.R. 3. After charges were framed against the petitioners for the offence under Section 307/34 IPC, they were subjected to trial. 4. The prosecution, in order to prove its case, examined 9 witnesses. P.W.4 (Sada Sahu) was the injured, whereas P.W.3 (Subash Sahu), the son of P.W.4 was the informant in the present case. P.Ws.2, 5 and 7 were the post occurrence witnesses those who had accompanied P.W.3 to the spot after the incident. P.W.1 was the Doctor, whereas P.W.9 was the Investigating Officer. None of the independent post occurrence witnesses, Page 2 of 10 namely, P.Ws.2, 5 and 7 supported the prosecution case and turned hostile. Therefore, the prosecution rested its case on the strength of the evidence of P.Ws.3, 4 and 1. P.W.1 stated in his testimony that the injured had received as many as five injuries, namely, 1. Contusion Red colorization 3”x 2& ½ ” on right forearm 2. Lacerated wound: 1”x1/4”x1/4” on the left forearm 3. Contusion : Red colorization 3&1/2”x3” on the left forearm 4. Contusion : Red colorization 4”x2” on left mid thigh 5. Laceration 1”x1/4”x1/4” over right forearm. The Doctor had opined that Injury Nos.2, 4 and 5 were simple in nature, however, Injury Nos.1 and 3 were grievous. 5. Relying upon the testimonies of P.Ws.3 and 4 which are consistent and corroborative with the evidence of P.W.1, the trial Court found the petitioners guilty of the offence punishable under Section 307 IPC and sentenced them to undergo R.I. for a period of five years and to pay a fine of Rs.3,000/- each and, in default of payment of fine, to undergo R.I. for further period of two months. Page 3 of 10 6. The petitioners assailed the judgment of conviction and order of sentence dated 09.01.2009 passed by the learned C.J.M.-cum-Asst. Sessions Judge, Balangir in Sessions Case No.1/2 of 2008 by filing Criminal Appeal No.2 of 2009 before the learned Additional Sessions Judge, Balangir. The learned Additional Sessions Judge, Balangir vide its judgment dated 24.12.2010 had confirmed the judgment and sentence inter alia returned the following findings: “11. In the present case, the accused-appellants assaulted P.W.4 while returning home after answering call of nature and he had no weapon with him, but the accused-appellants were armed with lathis to assault him. The accused-appellants were tied a gunny bag on the mouth of P.W.4 and assaulted with injuries and fractures on both of his hands. So, there was premeditation or planning before the assault. On these facts it is sufficient to come to a conclusion that the accused persons intended to cause death of P.W.4. Coming to other grounds of appellants and on careful 12. scrutinisation of the evidence as available in the record, it transpires from the evidence of P.W.4, Sada Sahu that the appellants assaulted the victim by means of lathi and threatened to kill him, as a result of which the victim sustained fracture on both of his hands and on his left leg and back. As per the evidence of P.W.1, the doctor that he medically examined P.W.4-Sada Sahu on police requisition and fracture of shapt of both radious and ulna bones and lacerated wound on his forearms and contusion on his thigh vide Exts.1 and 2. He has also categorically stated in his evidence that injuries might have been possible by the seized weapon i.e. lathis which have been used for commission of offence. As per the evidence of P.W.3-Subas Sahu and P.W.6-Kumar Mallik reveals that they found Sada Sahu-P.W.4 lying on the ground with bleeding injury and his face was tied with gunny bag and the P.W.4 disclosed that the accused-appellants Page 4 of 10 assaulted by means of lathis and sustained injuries. During course of investigation the I.O.-P.W.9 has seized the blood stained earth and a gunny bag and plastic chappal from the spot vide Ext.2 and he has stated before the court the above facts. It is also transpires from the evidence of P.W.9 the I.O. that he seized two lathis on production by the accused-appellant.” 7. Having failed in their appeal, the petitioners have assailed the judgment of conviction and order of sentence of both the courts below in the present revision petition. 8. Since none appeared for the petitioners when the matter was called out for hearing many times, this Court requested Mr. P.C. Chhinchani, Advocate to assist the Court and on his humble acceptance, he was appointed as Amicus Curiae by this Court vide order dated 24.06.2024. 9. Heard Mr. P.C. Chhinchani, learned Amicus Curiae and Mr. B.K. Ragada, learned Additional Government Advocate at length. 10. Mr. P.C. Chhinchani, learned Amicus Curiae at the outset submitted that this is a peculiar case where the prosecution has not brought on record an iota of evidence to show what was the motive behind commission of the crime. Admittedly, there is not a single whisper regarding the motive of the crime. The accused persons seem to be very young at the time of incident whereas the injured was an elderly person. Admittedly, there was Page 5 of 10 no past enmity and also there was no provocation to commit such incident. The incident had taken place at midnight. The investigating agency had miserably failed to bring on record the cause of the incident and the probable reasons for the accused to be present at the spot. Therefore, Mr. Chhinchani submits that the finding of the court below that the accused- petitioners have intentionally attacked P.W.4 and attempted to kill him is misplaced. In the background of the aforementioned submission, he has taken me to the finding recorded by the court below in paragraph-10 of the judgment which reads as under: “10. To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act irrespective of its result was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.” Page 6 of 10 11. The aforementioned finding of the trial court has been affirmed by the appellate court. Mr. Chhinchani submits that the finding recorded by the court below is de hors the record and suffers from perversity. The investigation conducted by the Police appears to be tainted and the petitioners were falsely implicated. 12. Per contra, Mr. Ragada submits that even if the argument of Mr. Chhinchani is accepted, the evidence of injured witness P.W.4 and informant P.W.3 cannot be discarded as the impeccable evidence of these two witnesses has drawn corroboration from the evidence of P.W.1. There is no denial of the fact that P.W.4 has sustained injuries by the accused persons. Mere absence of motive cannot be a cause to discard the consistent version of the witnesses. Therefore, he justified the conviction recorded by the court below against the petitioners for the charges under Section 307 IPC. 13. Heard both the learned counsel at length. Perused the evidence on record and analyzed the impugned order of conviction and sentence passed by the courts below. I agree with the argument advanced by the learned Amicus Curiae to the extent that there is not a single whisper Page 7 of 10 regarding the motive behind commission of the crime. Therefore, nothing is illuminating in record to show the intention of the accused to cause the injuries to P.W.4. At the same time, the testimonies of P.Ws.1, 3, 4, 8 and 9, being consistent in nature, cannot be discarded merely because the prosecution has failed to bring any evidence on record regarding the motive behind the crime. In that view of the matter, while relying upon the evidence of these witnesses, I am of the view that offence under Section 324 IPC against the petitioners is clearly made out instead of the offence under Section 307 IPC. In this case, the evidence of P.W.1 and P.W.3 assumes importance. 14. Taking into consideration the testimonies of P.Ws.3 and 1, I am modifying the conviction recorded by the courts below against the petitioners of offence under Section 307 IPC and I find the petitioners guilty of offence punishable under Section 324 IPC. Accordingly, the sentence awarded to the petitioners is also modified. In view of the fact that the petitioners are convicted for offence under Section 324/325 IPC, the sentence is modified. The petitioners are sentenced to undergo R.I. for one year and to pay fine of Rs.10,000/- (Rupees ten thousand) each, in Page 8 of 10 default of making payment, the accused-petitioners shall undergo further R.I. for one month. Since the incident had taken place way back in 2006 and 18 years have gone by now, no purpose would be served to send the accused persons to suffer further incarceration. Therefore, the petitioners are entitled to the benefit of Probation of Offenders Act in view of the judgment pronounced by this Court in the case of Pathani Parida and another vs. Abhaya Kumar Jagadev Mohapatra reported in 2012 (Supp.- II) OLR - 469. 15. In view of the aforementioned, the petitioners are convicted of offence punishable under Section 324 IPC and sentenced them on that count, but instead of sending them to suffer incarceration, I direct that the petitioners be released under Section 4 of the Probation of Offenders Act, 1958 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. During the probation period, the petitioners shall keep peace and maintain good behavior and they shall remain under the supervision of the Page 9 of 10 concerned Probation Officer during the aforesaid period of one year. However, the petitioners shall deposit the fine of Rs.10,000/- (Rupees ten thousand) each being fine imposed on them. The fine amount so deposited shall be disbursed to the injured or his son-informant as compensation as per Section 357 Cr.P.C. 16. This Court acknowledges the effective assistance rendered by Mr. P.C. Chhinchani, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,000/- (Rupees seven thousand) to be paid by the State as a token of appreciation.
Decision
17. The Criminal Revision is accordingly disposed of. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 30th July, 2024/Asish Kumar Kar, ADR-cum-Addl. Principal Secretary Signature Not Verified Digitally Signed Signed by: ASISH KUMAR KAR Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Aug-2024 11:52:30 Page 10 of 10