The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.323 of 2011 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Sunil Kumar Behera @ Sunil Behera……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. Priya Ranjan Singh, Advocate Mr. L.N. Rayatsingh, Advocate For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate CORAM:
Legal Reasoning
of the petitioner is covered by the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp-II) OLR 469. 16. Accordingly, instead of sentencing the petitioner to suffer imprisonment, this Court directs that the petitioner be released under Section 4 of the Probation of Offenders Act for a period of one year on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the petitioner shall keep Page 7 of 8 peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year.
Arguments
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 01.07.2024 : Date of Judgment: 16.07.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 read with Section-397 of Cr.P.C. is directed against the judgment and order dated 17.01.2011 passed by the learned Sessions Judge, Dhenkanal in Criminal Appeal No.2 of 2007, whereby the judgment and order dated 16.12.2006 passed by the learned Chief Judicial Magistrate-cum- Assistant Sessions Judge, Dhenkanal in C.T. (Sessions) 153 of 2005 convicting the petitioner for the offence under Section 324 IPC has been confirmed and sentence was reduced to one year R.I. instead of three years R.I. 2. The informant Bhabagrahi Das lodged a complaint in Dhenkanal Police Station, inter alia, alleging that on 09.09.2004 at about 1.30 P.M., one Mohan Das of his village was quarrelling with Sunil Behera, the petitioner. At that point of time, the informant tried to intervene to control them, as a result of which, the accused petitioner abused the informant saying “sala magiha tote jibanare khatam kari debi tama sahiku bumb pakai udai debi” and assaulted the informant with a Bhujali. When the informant tried to save, he sustained bleeding injury on his shoulder. The informant also stated that the said incident was witnessed by Mohan Kumar Das, P.W.2, Priyabrata Mohanty, P.W.6 and Akhila Kumar Malla, P.W.7. Page 2 of 8 3. On the basis of the said allegation, the F.I.R. was registered in Sadar P.S. bearing F.I.R. No.288 of 2004. 4. After the investigation, the charge sheet was filed by the police in the present case and the petitioner stood charged for the alleged offences punishable under Sections-341/324/294/506/307 IPC. Accordingly he was put to trial. 5. The prosecution examined 8 witnesses and exhibited 4 documents to bring home the charges against the petitioner. 6. The prosecution had strongly relied upon the testimony of P.W.1, the informant, P.Ws.2, 6 & 7, the eye witnesses to the occurrence and P.W.5, the doctor, who had examined the informant. 7. The Trial Court after analyzing the evidence on record, found the petitioner not guilty of the offences under Sections-341/294/506/307 IPC, however, convicted the petitioner for the offence under Section-324 IPC. Accordingly, the petitioner was awarded the sentence of R.I. for three years. 8. Aggrieved by the aforementioned judgment of conviction and order of sentence awarded by the Trial Court, the petitioner appealed to Page 3 of 8 the Court of the learned Sessions Judge, Dhenkanal by filing Criminal Appeal No.2 of 2007. The Appellate Court vide impugned order dated 17.01.2011 confirmed the conviction. However, reduced the sentence awarded to the petitioner to that of one year in place of three years. 9. The petitioner has preferred the present Criminal Revision Petition assailing the conviction recorded against him for the offence punishable under Section-324 IPC as well as the sentence of one year R.I. awarded to him for the said offence. 10. Heard Mr. Priya Ranjan Singh, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 11. The Trial Court had rightly relied upon the testimony of P.W.1, who had categorically deposed before the Court that he tried to intervene in the quarrel between the accused and one Mohan Das. Upon this, the accused got hyper and physically assaulted him by Bhujali as a result of which he sustained bleeding injury. This aspect of the matter which found narrated in the F.I.R. had also been proved on record has been corroborated with the ocular version of P.W.1. The testimony of the Page 4 of 8 injured/informant is directly corroborating with the testimony of the eye witnesses namely P.Ws.2, 6 & 7. They had supported the prosecution story and deposed that they had witnessed the occurrence and they had also seen the accused assaulting the informant. P.W.5, the doctor had deposed that the breadth of the injury sustained by the informant was ½ and depth was 1/4th. It was an incised wound caused by a sharp cutting weapon. P.W.5 however opined that the injury sustained by the informant was simple in nature. That was perhaps the reason the petitioner was rightly acquitted for the graver offence and convicted for the offence under Section 324 IPC. 12. The Appellate Court also concurred with the finding of the trial Court and while confirming the conviction, inter alia, returned the following finding: “10. On a scrutiny of the evidence of P.Ws. 2, 6 & 7, the eye witnesses, I find their evidence is convincing and trustworthy and there is no reason to discard their testimony. There is nothing on record to believe that they falsely implicated the appellant in commission of the alleged crime. Although the other eye witnesses like P.Ws. 3 & 4 corroborated the testimony of P.W.1, the injured to the effect that the appellant assaulted by means of bhujali on his right shoulder causing bleeding injury but from the evidence of P.W.8, the I.O., it reveals that both P.Ws. 3 and 4 did not state before him to have seen assault on P.W.1 by the appellant. It appears that at the earlier stage of investigation, they stated before the I.O. to have heard regarding the assault on the victim Page 5 of 8 by the appellant. Therefore, I find both P.Ws. 3 and 4 had tried to improve the prosecution case during their evidence in the Court by stating to have seen the assault on the victim by the appellant although they had not stated so before the I.O. at the earliest opportunity. Therefore, it cannot be said that both P.Ws. 3 and 4 are the witnesses to the occurrence and in fact, they had seen the assault on the victim. Furthermore, from the F.I.R., Ext.1, it reveals that P.Ws. 3 and 4 were not present in the scene of occurrence. 11. Thus, from the evidence adduced by the prosecution, I find that the testimony of P.W.1, the injured finds ample corroboration from the evidence of P.Ws. 2, 6 & 7 as well as medical evidence of P.W.5. I find no reason to disbelieve their testimony. Their evidence is convincing and trustworthy. Considering the nature of injury, sustained by the injured, the possibility of self infliction or otherwise is ruled out. No one can inflict injury on himself to falsely implicate an innocent person. As against this evidence from the side of prosecution DW 1 examined on behalf of defence, deposed that on the night of occurrence, the informant and others had threatened the accused being armed with lathies and he does not know if the accused had assaulted the informant on that day. He admits that he had come to the court to depose at the instance of the wife of appellant. In view of clear, cogent evidence of prosecution witnesses like P.Ws. 2, 6 & 7 and medical evidence of P.W.5, the evidence of DW 1 cannot be accepted.” 13. I find no reason to disagree with the concurrent finding recorded by both the Courts below while evaluating the evidence of the injured witnesses and the eye witnesses to the occurrence. Therefore, I confirm the conviction recorded against the petitioner for the offence under Section 324 IPC. Page 6 of 8 14. At this stage, Mr. Singh, learned counsel for the petitioner had prayed that leniency should be shown to the petitioner and the benefit of the Probation of Offenders Act may be granted to the petitioner. 15. In view of the fact that the incident had taken place in the year 2004 and at that point of time, the petitioner was a young man of 24 years and by now, more than two decades have already lapsed. The petitioner is stated to have already undergone about three months of imprisonment. Therefore, sending the petitioner for undergoing incarceration at this stage, may not serve the purpose. Therefore, the case
Decision
17. The Criminal Revision is accordingly allowed and disposed of. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 16th July, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 18-Jul-2024 10:06:48 Page 8 of 8