Criminal Appeal No. 9/47 of 2010 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.468 of 2011 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) Trilochan Sahu @ Tata @ Tilu Sahu ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. Laxman Pradhan, Advocate For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 03.07.2024 : Date of Judgment: 30.07.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 of Cr.P.C. is directed against the judgment and order dated 28.12.2010 passed by the learned Ad hoc Additional Sessions Judge, Fast Track Court No.1, Phulbani in Criminal Appeal No.9/47 of 2010, whereby the judgment of conviction and order of sentence dated 25.02.2010 passed by the learned Asst. Sessions Judge, Phulbani in S.T. No.22 of 2007/S.T. No.82 of 2007
Legal Reasoning
(D.C.) has been confirmed with partial modification of the conviction and sentence. 2. In summary, the prosecution's case is that on December 18, 2006, at 11.30 a.m., the accused, who drives an auto rickshaw with registration number OR-12-9005, purposefully dashed the informant's husband Ramesh Chandra Pradhan's motorcycle at Madikunda Chhak while he was returning from the market, causing him to fall on the ground. Thereafter the accused picked up a stone and dealt several blows on the head of the husband of the informant. However, with the intervention of the local people in time, the injured was saved. The local people immediately shifted the injured to the hospital and sent message to the informant about the incident. The informant, after witnessing the injured at the hospital, immediately lodged an F.I.R. at the Police Station on the basis of which the police registered the case and started investigation. 3. During the investigation, the I.O. visited the spot, seized the auto- rickshaw of the accused as well as the motor cycle of the injured, the Page 2 of 10 stone by which the accused had assaulted the injured, engaged the Scientific Officer, DFSL, Phulbani to collect the blood-stained earth from the spot and took the photographs of the site of the occurrence. Subsequently, the I.O. seized the blood-stained wearing apparels of the injured, seized the documents relating to both the vehicles and issued requisition for medical examination of the injured, who was undergoing treatment at the hospital. After the injured returned from Berhampur, the I.O. confiscated all medical records relating to his treatment there, since the injured was then sent to the MKCG Medical College & Hospital, Berhampur, for additional care. After receiving the doctor's report and the injury report, the I.O. completed the investigation and filed the charge sheet against the accused for the aforementioned offence in the Court of the learned S.D.J.M., Phulbani. Following a committal inquiry, the Court of Sessions was tasked with handling trial of the case. 4. The petitioner was charged for the alleged offence punishable under Section 307 IPC. Page 3 of 10 5.
Legal Reasoning
Heard Mr. Laxman Pradhan, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 6. Perused the impugned judgment of conviction and order of sentence passed against the petitioner and meticulously evaluated the evidence on record. 7. In order to prove the case against the petitioner, the prosecution had examined 19 witnesses and exhibited about 12 documents. The plea of defence was that of complete denial. 8. P.Ws.1, 2, 3, 4, 5 & 11 were examined by the prosecution being the witnesses to the occurrence whereas P.Ws.12 & 13 were the chance witnesses, who were at the spot by chance. P.Ws.6 & 7 were examined by the prosecution to prove the seizure. P.W.15 was the injured, who was the vital witness to the prosecution. P.W.18 was the doctor, who examined the victim whereas P.W.17 was the Investigating Officer. 9. The version of P.W.15 in his ocular testimony had been supported by all the occurrence witnesses namely, P.Ws.2, 5, 11, 12 & 13. The doctor who has examined the victim, i.e., P.W.18 deposed that he found Page 4 of 10 two lacerations, one of size 3” x 3” over the scalp and one of size 2” x 2” over the right hand of the injured. She opined that the injuries were grievous in nature. 10. The trial Court analyzed the evidence of P.W.15 vis-à-vis the occurrence witnesses and the doctor’s testimony and returned the following findings: “In this case also, the accused first dashed his vehicle against the vehicle of the injured and thereafter assaulted him by a stone. The doctor in reply to the query of the I.O. says in his report Ext.9 that injury No.1 on the injured could have been caused by the stone and would have resulted in death had the stone been struck with sufficient force. The injury No.1 of the injured in this case definitely is a serious injury but had the accused any intention to kill the injured, he could have used more force damaging the brain matter and causing instant death. Considering the advantage to assault as by then the injured was lying on the ground in helpless condition, the accused could have easily killed the injured had he the intention to kill him. Further, if the accused had so wished, could have knocked the vehicle with such force and after fall of the victim on the ground, could have run the vehicle over him to ensure his death. So, from all these discussion it is apparent that the accused had no intention to kill the injured. Rather, he with a view to settle some old score, knocked the injured by his auto and inflicted injuries. Now to conclude from the above discussion, the accused without any immediate provocation from the injured, with intention to cause him bodily pain, knocked him by his autorickshaw and inflicted grievous injury on him by a stone for which he is liable only for causing grievous hurt and not for the offence of attempted murder. The point as set out is therefore not proved. Instead, it is proved from the evidence on record that accused on the alleged date, time and place voluntarily caused grievous hurt to the injured with a stone on his vital part like head, which stone in the circumstance, can be said an instrument likely to cause death, and is therefore, liable for the offence under section 326 of the I.P.C. but not for the offence under section 307 IPC for which he has been charged with.” Page 5 of 10 11. On the basis of the aforementioned findings and the appreciation of evidence, learned trial Court convicted the petitioner for the offence under Section 326 of the IPC and sentenced him to undergo R.I. for a period of five years and to pay fine of Rs.5,000/- (Rupees five thousand) in default to further undergo R.I. for a period of one year. 12. The petitioner being aggrieved and dissatisfied with the judgment of conviction and order of sentence dated 25.02.2010 passed by the learned Asst. Sessions Judge, Phulbani in S.T. No.22 of 2007, assailed the same by filing Criminal Appeal No.9/47 of 2010 before the learned Ad hoc Addl. Sessions Judge, Fast Track Court No.1, Phulbani. 13. The appellate Court vide its judgment dated 28.12.2010 confirmed the conviction recorded against the petitioner for the offence under Section 326 IPC. However, modified the sentence of five years R.I. to three years R.I. and imposed fine of Rs.1,000/- (Rupees one thousand) in default to undergo further R.I. for three months. 14. The reasoning of the Appellate Court encompassed in paragraphs- 9 and 10 of the judgment reads as under: Page 6 of 10 “9. On perusal of the record, it transpires that the witnesses examined as P.Ws.2, 3, 4, 5, 11, 12 and 13 deposed about the occurrence taken place at the spot on the day of incident. Out of them PW5 deposed categorically that he had seen the assault made by the accused appellant to the injured Ramesh over his head with a stone after the accident taken place. During cross-examination he also repeated that the accused threw stone to the injured for three times. Nothing was brought out from his mouth to disbelieve his testimony given in the Court. So also PW.11, 12 and 13 also deposed in the Court about the assault made by the accused to the injured PW18 with a stone at the place of occurrence resulting injury on his person. Their evidence was not at all shaken by the learned defence counsel during lengthy cross-examination. In such premises, the leaned court below has not committed any error by coming to a conclusion that due to assault by the accused with the stone the injured sustained injuries over his head and hand. 10. The medical officer examined as PW16 deposed categorically in the Court that the injured sustained lacerated injuries over his scalp and right hand. The injured was given treatment at MKCG Medical College, Berhampur. The discharge record shows that the injured sustained fracture injuries on his right hand and at right temporal bone which are grievous in nature. The learned court below arrived at a conclusion that the guilt of the accused comes under the purview of Sec.326 IPC. In order to attract this provision, the prosecution has to prove the following ingredients: (i) (ii) (iii) The causing of grievous hurt by the accused; That it was caused voluntarily; That such grievous hurt was caused by means of an instrument for shooting, etc., or by means of any instrument, which, used as a weapon of offence, is likely to cause death; or by means of fire, etc., or by means of any poison, etc., or by means of any substance which it is deleterious to the human body to inhale, etc., or by means of any animal. The stone marked MO I is not an instrument of shooting, stabbing or cutting. In order to come within the scope of Sec.326 IPC the prosecution has to establish that such stone, which, used as a weapon of offence, is likely to cause death. Mere use of stone over the head does not ipso facto establish the ingredients of this provision. The medical officer, during recording of his evidence, deposed that he Page 7 of 10 rendered opinion as per query of the IO that the injury no.1, which was the result of assault by the stone, was sufficient to cause death if sufficient force is applied. But he has not furnished in his opinion marked Ext.9 details about the stone examined by him. He has also not identified the said stone in the court. His opinion does not specifically indicate that the stone, if used as a weapon of offence, is likely cause death. Merely because the injury found by him is sufficient to cause death in ordinary course of nature does not prove that the said stone is capable to cause death. It also appears from the defence evidence that prior to the occurrence there was some enmity between the accused and the injured. A criminal case was also initiated which is apparent from the Ext.A. In such circumstance it can not be believed that the accused had no intention to dash the injured with his auto rickshaw while he was passing by his motor cycle. Rather it can be said that the accused voluntarily caused grievous hurt to the injured. There is no material on record to give him benefit under section 335 IPC. In such circumstance after evaluation of the entire materials, it is concluded that though the offence under Sec. 326 is not made out against the accused appellant rather his act of causing grievous hurt to the injured comes under the purview of Sec. 325 IPC and he is held guilty for commission of the said offence.” 15. Having failed in the appeal, the petitioner has challenged the judgment of conviction /order of sentence of both the Courts below in the present Revision Petition. 16. I am completely in agreement with the findings recorded by the appellate Court as well as the trial Court. Undoubtedly, the prosecution has proved the case beyond all reasonable doubts in so far as the incident and the injuries sustained by P.W.15 are concerned. However, in absence of the intention to cause grievous bodily injury, the accused is only liable for the offence under Section 325/326 IPC, but not for the offence under Page 8 of 10 Section 307 IPC as has been charged to the accused person. Accordingly, the revision petition in regard to the conviction recorded against the petitioner for the offence under Section 326 IPC is dismissed. 17. Coming to the quantum of sentence, I found it from the record that the petitioner was arrested on 19.01.2007 and was released on bail on 05.07.2007. After conviction, the petitioner was again taken into custody on 26.07.2012 and released on bail on 30.08.2012. Therefore, the petitioner has already undergone custody for a period of 201 days in toto without remission. 18. The incident had taken place on 18.12.2006. At the time of incident, the petitioner was 27 years and about 18 years have already been lapsed in between. Therefore, sending the petitioner to further undergo incarceration would serve no purpose, rather would be harsh. The petitioner is not a repeated offender and he was not found wanting for misusing the liberty of bail granted to him by the courts below in this case. Hence, I modify the sentence of three years imposed by the appellate Court to that of the custody the petitioner has already undergone. However, the fine of Rs.1,000/- (Rupees one thousand) Page 9 of 10 imposed by the Court below is enhanced to the fine of Rs.10,000/- (Rupees ten thousand). In the event of failure to make good the fine amount, the petitioner shall further undergo R.I. for one month. The fine amount to be deposited by the petitioner shall be disbursed to the victim as compensation as per the provision of Section357 Cr.P.C. 19. The Criminal Revision is accordingly disposed of in the aforementioned terms. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 30th July, 2024/Subhasis Mohanty, P.A. Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 01-Aug-2024 19:31:36 Page 10 of 10