The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.277 of 2011 (In the matter of an application under Section 397 read with Section 401 of the Criminal Procedure Code, 1973) Kangalu Sahu ……. Petitioner -Versus- State of Odisha ……. Opposite Party For the Petitioner : Ms. S. Sunandini, Advocate For the Opp. Party : Mr. Debasish Biswal, Additional Standing Counsel CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 24.07.2024 :: Date of Judgment: 30.07.2024 S.S. Mishra, J. 1. The present Criminal Revision filed under Sections 397 and 401 of Cr.P.C. is directed against the judgment and order dated 16.12.2008 passed by the learned Additional Sessions Judge, (F.T.C.), Patnagarh in Criminal Appeal No.24/36 of 2006-2007, whereby the judgment of conviction and order of sentence dated 05.05.2006 passed by the learned S.D.J.M., Patnagarh in G.R. Case No.197 of 2003 has been confirmed. 2. The prosecution case in brief is that, on 12.08.2003 at about 2.00 P.M., the present petitioner, in a drunken state, created gandagola in his house and tried to assault the informant, who is his brother, by a lathi. The other brothers of the accused, namely, Ranka Sahu and Samaru Sahu, asked him not to create any gandagola. Due to such assault, the informant sustained pain on his neck. To relieve this pain, he, along with his brother, Ranka Sahu, went to the village Dangarbahal for purchase of medicine and while they were returning, at about 6.30 P.M., near the village pond, the accused-petitioner assaulted the informant by means of lathi. When he protested and tried to save him, the accused produced a knife from his pocket and inflicted injury on his person. The petitioner had also threatened the informant to do away with his life. Due to assault, he sustained bleeding injury on his head, eye and left hand and fell down on the ground. On the basis of such allegation, the informant/victim lodged a written report before the Larambha O.P. on 12.08.2003 at 8.00 Page 2 of 9 P.M. which was then sent to the Patnagarh Police Station and registered as Patnagarh P.S. Case No.101 of 2003 against the petitioner. 3. During investigation, the I.O. examined the injured and other witnesses and sent the injured for medical examination and also seized the Bhujali. After completion of investigation, charge-sheet was filed against the petitioner for commission of alleged offences punishable under Sections 341/323/326/506 of I.P.C., and was then put to trial. 4. Heard Ms. S. Sunandini, learned counsel for the petitioner and Mr. Debasish Biswal, learned Additional Standing Counsel for the State. 5. In order to bring home the charges, the prosecution examined 8 witnesses to establish the charges against the petitioner. Out of whom, P.W.2 was the victim and informant in this case, whereas P.W.3 is his brother and eye witness to the incident. P.Ws.4, 5 and 6 were the post- occurrence witnesses, whereas P.W.7 was the scriber from the F.I.R. P.W.1 was the doctor, who examined the victim (P.W.2) and P.W.8 was the I.O. in this case. The accused-petitioner is the brother of P.W.2, the informant/victim and P.W.3, the eye witness. The petitioner, being the brother of the victim, had attacked him physically and caused serious Page 3 of 9 injury to him. P.W.1 in his testimony has inter alia stated that the victim has received four injuries. Out of which, injury No.3 was grievous in nature. The injuries are in the vital parts of the body. The petitioner has assaulted P.W.2, who is his brother, by lathi and bhujali. The weapon of offence has also been recovered. 6. The learned trial Court, by relying upon the testimony of the injured witness, namely, the informant, found corroboration with the evidence of eye witness (P.W.3), recorded that the accused-petitioner is guilty of the offence punishable under Sections 341/323/326 of I.P.C. and sentenced the petitioner variously on every count. However, the petitioner was acquitted of offence punishable under Section 506 of I.P.C. for lack of evidence. Accordingly, the trial Court sentenced the petitioner to undergo S.I. for one month with a fine of Rs.100/-, in default, to undergo S.I. for a period of 5 days for the offence under Section 341 of I.P.C. The trial Court further sentenced the petitioner to undergo S.I. for three months with a fine of Rs.200/-, in default, to undergo S.I. for ten days for the offence under Section 323 of I.P.C., further undergo R.I. for one year Page 4 of 9 with a fine of Rs.500/- for the offence under Section 326 of I.P.C., in default, to undergo R.I. for a period of one month. 7. Assailing the judgment of conviction and order of sentence passed by the learned S.D.J.M., Patnagarh in G.R. Case No.197 of 2003, the petitioner filed an appeal being Criminal Appeal No.24/36 of 2006-2007 before the Court of the learned Additional Sessions Judge (F.T.C.), Patnagarh. The Appellate Court confirmed the conviction and sentence passed by the trial Court. 8. I have perused the judgment and analyzed the evidence of all the materials witnesses as well as documentary evidence placed on record. The trial Court, by rightly appreciating the evidence of the injured witness i.e. P.W.2 which corroborated with the evidence of the eye witness (P.W.3), analyzed the evidence of the P.W.1, the doctor, and found the petitioner guilty of the alleged offences. In the present case, the seizure of the offence of weapon is also proved on record. Therefore, there is no ambiguity or perversity in the findings recorded by the Courts below. The concurrent findings of both the Courts below are based on strong, trustworthy and unimpeachable evidence of P.Ws.1, 2, 3 and all Page 5 of 9 the seizure witnesses. Therefore, no fault could be found in the judgments of both the Courts below. The Appellate Court in paragraph-8 of its judgment has inter alia recorded as under:- their going <8. P.W.3 the brother of the accused and informant was fully corroborated the evidence of the informant P.W.2. In his evidence he has narrated the incident which had happened at 2 P.M. At that time, there was threat to the informant by the accused. He also corroborated the testimony of P.W.2 as to village to Dangarbahal to purchase medicine. He stated that while returning they found the accused sitting near verandah being armed with one merah. Suddenly the accused dealt one merah below on the hand of the informant. Thereafter, the accused brought one knife from his pocket and assaulted the informant by that knife on his head, face (above and below right eye) and the back side of the left palm. The informant fell down at the spot sustaining the blows. The accused chased him to assault for which he ran away out of fear. After some time, he and his brother P.W.4 again came to the spot and shifted the injured to the Barandah of Gauntia Bhimsen Sahu. In his cross- examination he stated that when the accused assaulted the informant at Bandh Ari he was at a distance of 10 feet and it was dark. Further, he stated that he identified his brother from his voice. He also found the accused with a merha and a knife kept in his shirt pocket. When he protested the accused chased him to kill. On a close scrutiny of the evidence of P.Ws.2 and 3 I do not find any infirmity or inconsistency their to disbelieve fully testimony. P.W1 Dr. Bhimsen Meher has corroborated the injuries sustained by the informant P.W.2. He examined the injured Makhnu Sahu P.W.2 on police requisition on 13.8.2003 and found following injuries. their evidence in (i) Cut injury of size 1.1/2=x1/2=x½= situated over the right eye. Page 6 of 9 (ii) One cut injury of size ½= x½= below right eye. (iii) One cut injury of size ½= x1/2= on dorsum of left palm. (iv) One swelling of size 2=x1= on dorsum of left forearm. According to him injury Nos.1, 2 were simple in nature and injury No.3 was grievous in nature caused by sharp weapon resulted in fracture of left fifth metacarpal bone vide xray place No.406 dt.13.8.2003 seized vide Ext.2. Ext.1 is the injury report. Injury No.4 was simple in nature and caused by blunt weapon. All the injuries were within 24 hours of his examination. On 14.9.2003 on receipt of query of the I.O. on examination of the weapon of offence he reported that the injuries noticed in the injury report were caused by the said weapon. He proved his query report marked Ext.3. He denied the suggestion of the defence as to possibility of such injuries by fall from a cycle on a hilly area. Even if the evidence of injured P.W.2, the eye witness P.W.3 coupled with the medical evidence P.W.1. to sustain a conviction for the offence U/s. 323/326 I.P.C. but the prosecution further proved the allegation through the post occurrence witnesses. The argument of the learned counsel for the appellant as to nomenclature of the weapon is of no consequence. The witnesses have categorically stated about user of a knife. They have given the measurement of the weapon but in seizure list Ext.4 it is mentioned that Bhujali was seized. The witnesses are rustic villagers. The medical evidence is clear about the dimension of the injuries. For rustic villagers Bhujali and Knife, there is no difference. The measurement of Bhujali was in seizure list Ext.4 which is not different as that of a knife.= is sufficient 9. The aforementioned reasoning given by the Appellate Court in order to confirm the conviction and sentence passed by the trial Court is adequate on facts as well as law. Therefore, I am not inclined to interfere Page 7 of 9 insofar as recording of conviction for offence punishable under Sections 341/323/326 of I.P.C. 10. A cumulative analysis of the matter in its entirety lead to an irresistible conclusion that the conviction recorded by the Courts below are absolutely correct and just. Hence, no interference is called for at this stage. However, the sentence awarded by the Courts below needs to be modified on the background of the fact that the petitioner and the victim are real brothers. At the time of incident, the petitioner was 48 years old. The incident had taken place in the year 2003. More than two decades have now passed by. It is found from the record that the petitioner was arrested on 21.01.2011 and was released on bail by this Court vide its order dated 04.05.2011. Therefore, the petitioner has undergone the custody of four months and seven days. In that view of the matter, I am of the considered view that the sentence awarded to the petitioner deserves to be modified to that of the sentence he has already undergone in custody. However, the fine imposed by the Courts below is liable to be increased to Rs.10,000/- (Rupees ten thousand). Accordingly, the order of sentence passed by the Courts below are modified. The substantive Page 8 of 9 sentence of one year passed by the Court below is reduced to that of the sentence the petitioner has already undergone. The fine imposed by the Court below is modified to that of Rs.10,000/- (Rupees ten thousand), in default of payment, the petitioner is liable to further undergo S.I. for two months. The fine amount to be deposited by the petitioner shall be disbursed to the victim/injured in accordance with the provision of Section 357 Cr.P.C. as compensation.
Decision
11. The CRLREV is accordingly disposed of. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 30th July, 2024/ Swarna Prava Dash, Senior Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 29-Aug-2024 12:23:09 Page 9 of 9