Criminal Appeal No. 42 of 2005 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 827 of 2006 An application under Section 401 of the Code of Criminal Procedure. Ramakanta Behera ..… Petitioner -------------- -versus- State of Orissa Opp. Party --------------------------------------------------------------------------- For Petitioner : None ..… For Opp. Party ---------------------------------------------------------------------------- : Mr. M.R. Mishra, A.S.C. CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 25.04.2024 Savitri Ratho, J This Criminal Revision under Section 401 of the Code of Criminal Procedure (in short ‘Cr.P.C.’) has been filed challenging the judgment dated 20.07.2006 passed in Criminal Appeal No. 42 of 2005 by the learned Additional Sessions Judge, Jagatsinghpur convicting the petitioner for commission of the offence under Section 325 of Indian Penal Code (in short ‘IPC’) and sentencing him to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.1,000/- in default to under Rigorous Imprisonment for three months more by modifying his conviction and sentence under Section 307 of IPC by the learned C.J.M.-cum-Assistant Sessions Judge, Jagatsinghpur in Sessions Trial No. 723 of 2004/34 of 2004 on 13.12.2005, who had convicted the CRLREV No. 827 of 2006 Page 1 of 9 petitioner under Section 307 of IPC and sentenced him to undergo Rigorous Imprisonment for 4 years and to pay a fine of Rs.1,000/- only in default to Rigorous Imprisonment for 3 months. PROSECUTION CASE 2. The prosecution case in brief is that on 09.05.2001 at about 1.00 P.M., P.W.9- Dambaru Behera returned to his house and asked his brother the petitioner as to why he had caught fish alone from the pond. The petitioner became furious and assaulted P.W.9 by means of a farsa causing severe bleeding injures on his abdomen and his intestine to come out from his belly. He was taken to Jagatsinghpur District Head Quarters Hospital and from there shifted to SCB Medical College Hospital, Cuttack for treatment. Jagatsinghpur P.S. Case No. 164 of 2001 was registered on 10.05.2001 on the information of P.W.1-Minati Behera. Thereafter the IIC directed Sub-Inspector H.N. Pati to investigate into the case and after investigation, charge sheet was submitted against the petitioner. 3. The petitioner was charged for commission of offences punishable under Sections 326 and 307 of IPC. 4. The defence plea was one of denial of the prosecution case and false implication. 5. In order to prove its case, the prosecution examined 11 witnesses in the trial. But no witness has been examined on behalf of the petitioner. Six exhibits were exhibited by the prosecution. CRLREV No. 827 of 2006 Page 2 of 9
Legal Reasoning
TRIAL COURT 6. The learned trial court on analysis of the evidence of the eye witnesses found the petitioner guilty under Section 307 of IPC and convicted him thereunder but acquitted him from the charge under Section 326 of the IPC; and sentenced to undergo Rigorous Imprisonment for four years and to pay a fine of Rs.1,000/- as default, to undergo Rigorous Imprisonment for 3 more months. APPELLATE COURT 7. The learned appellate court on analysis of evidence of P.W.1 to 11 found that there was no material that the accused had the intention or the knowledge for attempting to murder the injured Dambaru (P.W.9) on the date of occurrence and acquitted him of the offence under Section 307 of IPC. In absence of the material object i.e. weapon of farsa the learned court held that he cannot be held guilty for the offence under Section 326 of IPC. But the learned Court found that the prosecution had been able to prove commission of offence of voluntarily causing grievous hurt punishable under Section 325 of IPC by the petitioner. Conviction of the petitioner under Section 307 of IPC was set aside and he was convicted for commission of offence under Section 325 of IPC and sentenced to undergo Rigorous Imprisonment for 3 years and to pay a fine of Rs.1,000/- in default to undergo Rigorous Imprisonment for 3 months more. CRLREV No. 827 of 2006 Page 3 of 9 8. No counsel appears on behalf of the petitioner. When the matter had been listed on 28.02.2024, 01.03.2024, 27.03.2024 and 12.04.2024, no counsel had appeared for the petitioner even though the
Legal Reasoning
names of the counsel- Mr. D.R. Swain, Mr. B.K. Mishra and Mr. B.K. Barik appeared in the cause list on all the dates. 9. As this is a Criminal Revision is of the year 2006 and the records are before me, I thought it fit to go through the LCR, hear the counsel for the State and dispose of the Criminal Revision. 10. I have carefully gone through the impugned judgments and the depositions of the P.Ws. WITNESSES P.W. 1-Minati Behera is the informant in the case. P.W.9- Dambarudhar Behera is her husband who is the injured. She has stated that as the petitioner caught fish alone from the tank, P.W.9 had protested. This annoyed the petitioner who brought a farsa from his house and dealt a blow with it on the left side abdomen of P.W.9 causing bleeding injury and his intestine to come out from his belly. She raised hulla for which the accused fled from the spot. P.W.9 was taken to Jagatsinghpur Hospital and from there he was taken to Cuttack where he was treated at the SCB Medical College and Hospital for about one and half months. P.W.2-Bansidhar Samal and P.W.7 Narayan Bhoi are post occurrence witnesses -They have stated that they proceeded to the spot CRLREV No. 827 of 2006 Page 4 of 9 of occurrence on hearing shouts of P.W.1 and found P.W.9 lying wounded and his intestine had come out from his belly. They have stated that they took the injured to Jagatsinghpur Hospital and police had seized the blood stained lungi and towel under seizure list Ext.2 in their presence. P.W.3 Upendra Behera is the father of the petitioner and the injured. He has stated that there was a quarrel between his two sons i.e. the petitioner and P.W.9 Dambarudhar and during such quarrel the petitioner caused hurt to P.W.9 with a farsa on his right side abdomen. P.W. 9 was taken to Jagatsinghpur Hospital and thereafter to Cuttack where he was treated for 15 days. In cross-examination, he has stated that since the last 10 years, injured was residing separately from him after constructing a house on the canal embankment with his family members and on the date of occurrence he was under the influence of liquor and came armed with a katari and fell down near a tree and he sustained injury from that katari and that the informant was in her house at the time of occurrence. P.W.4 Dhulamani Behera is the sister-in-law of the petitioner. She has stated that the petitioner caused hurt to Dambarudhar (P.W.9) by farsa on his left side abdomen for which he sustained bleeding injury. In cross-examination she stated that except herself, her daughter and father-in-law nobody else was there in the house. She has admitted that during last Panchat election, the petitioner was opposing the candidature CRLREV No. 827 of 2006 Page 5 of 9 of the informant for which there was dispute. She has also stated that at the time of occurrence, the injured was under influence of liquor and was armed with a katari and as the injured fell down near the drain, he sustained injury by his own katari. P.W.5- Kamini Prava Behera is the niece of the petitioner. She has stated that the accused caused hurt to P.W.9 by means of a farsa for which he sustained bleeding injury on his left side abdomen. In cross-examination, she has stated that the injured was drunk at the time of occurrence and was armed with katari and fell down near a drain and sustained injury by his own katari. P.W.6-Dr. Natabar Swain examined the injured on 09.05.2001 and found one incised wound with bleeding and the intestine had come out through the said wound. Mud was found on the margin on the wound and in the intestinal wall. The injury extended up to abdominal cavity. He stated that it was dangerous in nature and caused by sharp cutting weapon and the age was within six hours. The patient was referred to SCB Medical College and Hospital for further investigation. He has stated that the injury is possible by fall on a katuri. P.W.7-Narayan Bhoi has stated that he came to the spot and hearing hulla and found cut injury on the abdomen of P.W.9 and his intestine had come out. Thereafter they had taken him to hospital. P.W.8-Gurucharan Bhoi has stated that quarrel ensued between the petitioner and the injured. The petitioner was armed with CRLREV No. 827 of 2006 Page 6 of 9 farsa and holding a wooden plank. In course of quarrel they went inside the court yard and then the accused caused hurt to P.W.9 by farsa on the left side of his abdomen. But as soon as he reached the spot, the accused went away. The intestine of the injured had come out of the belly. Thereafter the injured was taken to the Hospital at Jagatsinghpur. He admitted that the informant and her husband belong to his party. After he reached the court yard of the informant on being called by aunt of P.W.9, he found the injured lying on the drain. He has denied that he was deposing falsehood at the instance of P.W.9 the injured. P.W.9-Dambarudhar Behera is the injured. He has stated that the P.W.1 informant is his wife and that the accused caused hurt on his abdomen by means of a farsa as a result of which the intestine came out of the belly. He stated that the petitioner was catching fish from their joint tank and when he protested, the petitioner threatened to kill him. At the time of occurrence the petitioner was hiding near the door being armed with a farsa. During occurrence he raised hulla, hearing which his wife P.W.1 came to the spot and saw the occurrence. He has proved the discharge certificate Exts.5 and 6. He stated that the petitioner dealt farsa blow from his backside. One wooden handle measuring 1 and half cubit was fixed with farsa. Length of the sharp size of the farsa will be 6”. He denied the fact that he fell down in his court yard and due to such fall he sustained injury on his left side belly by means of his own katari. CRLREV No. 827 of 2006 Page 7 of 9 P.W.10-Bikas Nisa Bibi and P.W.11-Hara Narayan are the two I.Os. who investigated into the case and submitted charge sheet. 11. P.W.3-Upendra Behera, P.W.4- Dhulamani Behera and P.W.5- Kamini Prava Behera who are related to the petitioner, during cross examination have tried to resile from their statements by stating that P.W.9 the injured who was drunk sustained injury by falling down on the kataru he was carrying. But it is not necessary to rely on their evidence when the evidence of P.W.1- Minati Behera wife of the injured, P.W.9- Dambarudhar Behera the injured and P.W.8- Gurucharan Bhoi are clear and cogent and corroborate each other. 12. From the evidence of P.W.1, P.W.8 and P.W.9, it is apparent that P.W.9 was assaulted by the petitioner for which he sustained grievous injuries in his belly and had to stay for at least 15 days in the Hospital for treatment. But as the weapon of offence the farsa has not been produced, the learned appellate court has rightly modified the conviction of the petitioner to Section 325 of the IPC instead of Section 326 of IPC. 13. As the evidence of the witnesses did not reveal either intention or knowledge of the petitioner to cause the death of the deceased, the conviction of the petitioner has rightly been converted to one under Section 325 of the IPC from Section 307 of IPC by the learned appellate court. CRLREV No. 827 of 2006 Page 8 of 9 14. In view of the evidence of P.W.1, P.W.8 and P.W.9 which have not been shaken in cross-examination, the conviction of the petitioner under Section 325 of IPC, does not warrant any interference, so it is confirmed. But I am of the view that the sentence requires modification as almost 23 years have elapsed since the date of occurrence. The sentence of Rigorous Imprisonment for 3 years is modified to Rigorous Imprisonment for 1 and half years and the fine is enhanced to Rs. 5,000/- in default to undergo Rigorous Imprisonment for 6 months more. The fine amount if realized shall be paid to the injured P.W.9- Dambarudhar Behera. 15. With the above modification in sentence, the Criminal Revision is dismissed. 16. Urgent certified copy of this order be granted on proper application. ……………………… (Savitri Ratho, J) Orissa High Court, Cuttack. The 25th April, 2024. Puspanjali Mohapatra, Personal Assistant. Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Reason: Authentication Location: Orissa High Court Date: 05-Jun-2024 16:35:30 CRLREV No. 827 of 2006 Page 9 of 9