The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.609 of 2011 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) Tanu Meher ……. Petitioner -versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. P.K. Routray, Advocate For the Opp. Party : Mr. B. K. Ragada, Addl. Government Advocate CORAM:
Legal Reasoning
the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp-II) OLR 469. 15. Accordingly, the present Criminal Revision in so far as the conviction is concerned is turn down. But instead of sentence the petitioner to suffer imprisonment, this Court directs the petitioner to be released on bail 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 Page 9 of 10 petitioner shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year. 16. The Criminal Revision is accordingly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 20th June, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Jul-2024 17:47:19 Page 10 of 10
Arguments
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 23.04.2024 : Date of Judgment: 20.06.2024 S.S. Mishra, J. The present Criminal Revision filed by the petitioner under Section 401 of Cr.P.C. is directed against the judgment and order dated 27.07.2011 passed by the learned Sessions Judge, Bargarh in Criminal Appeal No.01 of 2011, whereby the judgment of conviction and order of sentence passed by the learned J.M.S.C., Bargarh in G.R. Case No.488 of 1997 (T.R. No.106 of 2010) was confirmed. 2. The petitioner was subjected to prosecution in Bargarh P.S. Case 173/1997 registered under Sections 341/323/325/294/34 of I.P.C corresponding to G.R. Case No.488 of 1997 (T.R. No.106 of 2010). 3. The case of the prosecution in brief is that Informant-Kanta Meher lodged a report at Bargarh Police Station on 05.08.1997 alleging that while his uncle Bhagirathi Meher was returning home by his cycle, the petitioner along with his father stopped him near Manabandha bridge and both of them assaulted him by means of crow bar. Due to assault, his uncle sustained injuries on his body. When his uncle shouted due to the injury, the witnesses, namely, Sahadev Mallick and Akura Meher rushed to the spot and forbade both the petitioner and his father. On the basis of such allegation, F.I.R. was lodged at Bargarh Police Station, which was registered as Bargarh P.S. Case No.173 of 1997. After completion of investigation, charge-sheet was submitted against the petitioner and his father under Sections 341/323/325/294/34 of I.P.C. and charges were framed against them under those Sections. The petitioner and co-accused persons were put to trial. During pendency Page 2 of 10 of the trial, the accused Sukru Meher died for which the case against him was abated. 4. To bring home the charges, the prosecution had examined altogether eight witnesses and exhibited six documents. The informant was examined as P.W.2 whereas the Doctor was examined as P.W.7, the victim was examined as P.W.5 and the I.O. of the case was examined as P.W.8. The plea of defence is that of complete denial. In proof of their plea, no evidence is adduced from the side of the defence. 5. The learned trial Court analyzed the entire evidence on record and found the petitioner guilty of the offences under Sections 341/323/325/34 of the I.P.C. However, the learned J.M.S.C., Bargarh found the petitioner not guilty of the offence under Section 294 of IPC and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.3,000/-, in default of payment of fine, to undergo further simple imprisonment of three months for the offence under Section 325 of the I.P.C. and for the offence under Section 323 of the I.P.C., the petitioner was sentenced to undergo simple imprisonment for four months and one month simple imprisonment for the offence under Page 3 of 10 Section 341 of the I.P.C. All the sentences were directed to run concurrently. 6. The judgment of conviction and sentence dated 20.12.2010 passed by the learned J.M.S.C., Bargarh in G.R. Case No.488 of 1997 (T.R. No.106 of 2010) was called in question by filing Criminal Appeal No.01 of 2011 before the Court of learned Sessions Judge, Bargarh, by the petitioner. 7. Since the appeal has failed, the petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Criminal Revision Petition. 8. Heard Mr. P.K. Routray, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 9. Perused the impugned judgment and order of conviction and sentence passed against the petitioner and meticulously evaluated the evidence on record. 10. In the present case, the accused persons were put to trial. When the trial was going on, accused Sukru Meher, the father of the petitioner Page 4 of 10 died on 20.01.2009 as a result of which the trial against said Sukru Meher remained abated. Insofar as the present accused/petitioner is concerned, the prosecution had relied upon the testimonies of P.W.2, the informant, P.W.5, the injured, P.W.3, the eye-witness to the occurrence and P.W.4, who was a post-occurrence witness. The testimonies of all the witnesses were weighed vis-à-vis the testimony of P.W.7, the doctor. The prosecution could successfully bring on record the fact that the petitioner and his father have assaulted P.W.5 which was being witnessed by P.Ws.2 & 3. The testimonies of P.Ws.2, 3 & 5 are unshaken even after elaborating the cross-examination. P.W.4, who was the post occurrence witness, had also lent corroboration to the alleged incident. PW.7, the doctor, who had examined P.W.5 had found about six injuries in the person of P.W.5, out of which three injuries were stated to be simple in nature and three other injuries were grievous in nature. P.W.7 appears to have relied upon the X-ray report produced by the police before him to ascertain that the right knee and leg of P.W.5 was fractured. Those injuries were stated to be grievous in nature. The defence had vehemently argued before the Court below that the X-ray Page 5 of 10 report produced before the Doctor by the police has created serious doubt regarding the nature of injury sustained by P.W.5. On the strength of the said argument, the defence attempted to create a doubt in the prosecution story. The learned trial Court has carefully dealt with the said defence and inter alia stated as under: “The doctor also stated in his evidence that after his examination, the patient was shifted to V.S.S. Medical College & Hospital, Burla and Ex-rays were taken there, which later on produced before him by police on 27.091997, X-ray of right knee and leg showed fracture of tibia in the upper half which relates to injury no.4.The nature of injury was grievous, which might have been caused by hard and blunt object. X-ray of right forearm and elbow showed fracture of the upper half of ulna, which relates to injury no.6 and was grievous in nature and might have been caused by hard and blunt object. He also opined that such injuries can be possible by the impact of iron bar. He proved the police requisition which be received marked Ext.2 and this report marked Ext.2/1 and his signature marked Ext.2/2 thereon. He proved his opinion report in respect of injury nos.6 & 4 marked as Ext.3 and his signature marked Ext.3/1. He proved the requisition of police along with the x-ray plates sent to him for opinion marked Ext.3/2. He also proved his signatures found on the x- ray plates at the time of reading them marked asExt.4, Ext.5 and Ext.6 respectively. He also stated that x-ray plate containing his signature vide Ext.5 relates to injury no.6. The x- ray plate containing his signature vide Ext.6 relates to injury no.4. The ex-ray plate containing his signature vide Ext.4 relates to the x-ray of left forearm.” Page 6 of 10 11. Eventually, the trial Court on the strength of the evidence adduced by the prosecution had convicted the petitioner under Sections 341/323/325/34 of the I.P.C. and awarded various sentences. The petitioner brought up the matter to the appellate Court by filing Criminal Appeal No.1 of 2011 before Court of learned Sessions Judge, Bargarh. The appellate Court has agreed with the findings of the trial Court and maintained the conviction inter alia stating as under: “The learned J.M.S.C, Bargarh has correctly appreciated the evidence by coming to the conclusion that the oral evidence of P.W.5 the victim-injured regarding the assault and injuries sustained arc quite consistent with the medical evidence, It is also found that the injured sustained as many as six injuries out of which three are grievous in nature, From the Medical report of the doctor and opinion the magnitude and impact of the assault perpetrated by the appellant and his father on the said Bhagirathi Meher using stick as well as iron crow bar can be well imagined. The argument of the learned defence counsel before the Court below that P.W.7 is not a Radiologist for which his opinion on the x-ray plate is not acceptable has no force in as much as Radiology is part of the M.B.B.S course and a doctor having M.B.B.S degree is equipped with adequate technical know how to read an x-ray image. The injured has sustained simple as well as grievous head injury for which I do not find any wrong committed by the learned Ma0.strate in holding the appellant guilty for both the offences U/s.323 as well as Section 325 of I,P.,C, The fact that preceding the assault the injured was restrained wrongfully by both being struck from back while he was rushing hole in 'pis bi-cycle is well proved through cogent and consistent evidence. The fact remains that the injured Bhagirathi Meher has been severely assaulted by both the accused persons including the present Page 7 of 10 appellant by means of iron crow-bar as well as suck for which he had sustained three number of grievous injuries amongst other simple injuries on his person The doctor's finding on the injuries is quite pin-pointed and consistent with the oral account of the injured himself as well as the other eye- witnesses like P.W.3 and P.W.1, who on arrival at the spot noticed Bhagirathi Meher lying with bleeding injuries on his head, leg, hand, back and had lost his senses.” 12. I have carefully perused the evidence on record and scrutinized the judgment of both the Courts below and I am unable to find any infirmity in the findings of the Courts below. Therefore, I am not inclined to interfere in the present matter insofar as the recording of the conviction against the petitioner under Sections 341/323/325/34 of the I.P.C. is concerned. 13. However, coming to the quantum of sentence, the learned counsel for the petitioner has rightly contended that the incident had taken place way back in the year 1997 and the petitioner has already been sufficiently penalized, who had undergone rigors of trial. He further submitted that the process itself is a punishment, which the petitioner has already undergone. Therefore, he seeks leniency in the sentence. During the trial the petitioner had applied for the benefits of the Probation of Page 8 of 10 Offenders Act, the learned trial Court rejected the same inter alia stating as under: “11. In the present case P.W.5 had sustained simple injuries on his forehead and scalp. He also sustained grievous injuries on his right knee and leg, forearm and elbow, which are proved by P.W.7 from the x-ray reports. Thus, regard being heard to the nature of the offence, the manner of assault and the circumstances of the case, I do not feel expedient to release the convict under the beneficial provisions of Probation of Offenders Act, 1958.” 14. I am of the considered view that the petitioner is entitled for the benefit of Probation of Offenders Act as his case is directly covered by