The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.1009 of 2024 (An appeal U/S.374 of the Code of Criminal Procedure, 1973 against the judgment passed by Ms. Deepa Das, learned Civil Judge(SD)-cum-Asst. Sessions Judge (Woman’s Court), Boudh in S.T. Case No.10 of 2023 arising out of Boudh PS Case No.207 of 2022, of the Court of SDJM, Boudh). Mangulu Naik State of Orissa -versus- … … Appellant Respondent For Appellant : Mr. B.Karna, Advocate For Respondent : Mr. M.K.Mohanty, Addl. PP CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:05.04.2025(ORAL) G. Satapathy, J. 1. This criminal appeal is directed against the impugned judgment dated 30.09.2024 passed by learned Asst. Sessions Judge (Woman’s Court), Boudh, in ST Case No.10 of 2023 convicting the appellant for commission of offences punishable U/Ss.341/324/307 of IPC and sentencing him to undergo Rigorous Imprisonment (R.I) for a period of 10 years with CRLA No.1009 of 2024 Page 1 of 12 payment of fine of Rs.10,000/- in default whereof, to undergo RI for six months for offence U/S. 307 of IPC; and to undergo Simple Imprisonment (SI) for a period of fifteen days for offence U/S.341 of IPC with no separate sentence awarded for commission of offence U/S.324 of IPC. The aforesaid sentences are directed to be run concurrently and with benefit of set off of pre- trial detention against the substantive sentence. 2. The prosecution case in brief is, on 08.08.2022 at about 5.00 P.M while the injured PW.10 and his wife were entering to their house with their cow, the appellant came from back side and dealt blows to the injured PW.10 on his head by means of an axe, to which PW.2 (wife of PW10) raised commotion and other persons arrived at the spot with retreat of the appellant from the spot. Accordingly, PW.10 was shifted to DHH, Boudh for his treatment and also referred to VSS Medical College & Hospital, Burla for his better treatment and he was admitted therein for four days to undergo treatment. CRLA No.1009 of 2024 Page 2 of 12 On this incident, the younger brother of the
Legal Reasoning
injured PW.1 Sushil Kumar Behera lodged an FIR under Exhibit P-1 before the IIC Model PS Boudh, who registered Boudh PS Case No.207 of 2022 and directed ASI PW.9 Gitanjali Pradhan to investigate the matter. Accordingly, PW9 proceeded to conduct the investigation by visiting the spot, preparing spot map, examining witnesses, arresting the appellant by seizing weapon of offence i.e. one axe and forwarding the appellant to the Court. After completing all formalities of investigation and receiving injury report, PW.9 submitted charge-sheet against the appellant for commission of offences U/Ss.341,324,354,307 of IPC. 3. On finding prima facie materials, the learned SDJM, Boudh took cognizance of aforesaid offences and committed the case record to the Court of Session who transferred the record to the learned Asst. Sessions Judge (Woman’s Court). Upon going through the materials placed on record and hearing the parties, the learned trial Court presuming the appellant to have committed the offences has framed charge against him CRLA No.1009 of 2024 Page 3 of 12 for offences U/Ss.341/ 324/354/307 of IPC, to which the appellant pleaded not guilty resulting in trial in the present case. 4. In support of the charge, the prosecution examined altogether ten witnesses and proved eleven documents under exhibits P-1 to P-11 as against no evidence whatsoever by the defence. The plea of the appellant- convict in course of trial was denial simplicitor and false implication. On conclusion of trial, the learned trial Court after appreciating the evidence on record upon hearing the parties convicted the appellant for offences U/Ss.341/324/307 of IPC and sentenced him to the punishment indicated (supra). Being aggrieved with the conviction and sentence, the appellant has preferred this appeal. 5.
Legal Reasoning
In the course of hearing, Mr. Bikash Karna, learned counsel for the appellant while assailing the impugned judgment submits that although the injured has not been cross-examined, but the learned trial Court has appreciated the evidence on record CRLA No.1009 of 2024 Page 4 of 12 erroneously to convict the appellant for offence U/Ss.341/324/307 of IPC since the evidence of Doctor PW.7 discloses the injury to be possible by a fall on a hard and rough surface and the injured having given the suggestion in cross-examination to have sustained such injuries due to fall on the road. Mr. Karna further submits that due to above reasons, the conviction of the appellant is bad in the eye of law and liable to be set aside. Mr. Karna, however, alternatively prays to set aside the conviction and sentence of the appellant for offence U/S.307 by maintaining his conviction for offence U/S. 324 of IPC to award a lenient sentence by directing the punishment of imprisonment of the appellant for the period already undergone. 5.1. On the other hand Mr. M.K. Mohanty, learned Addl. Public Prosecutor however, strongly opposing the prayer of the appellant submits inter alia that the injuries to the injured being on vital part of the body, like on the head and the same having been not controverted in cross-examination, the conviction of the appellant cannot be considered to be bad for offence CRLA No.1009 of 2024 Page 5 of 12 U/S.307 of IPC and thereby the learned trial Court has not committed any illegality in convicting the appellant for offence U/S.307 of IPC and sentencing him thereon. Accordingly, Mr. Mohanty, prays to dismiss the appeal. 6. After having considered the rival submission upon perusal of record, since the appellant assails his conviction for offence U/Ss. 341/324/307 of IPC which are based on the injuries to the injured, it is considered apposite to refer to the evidence of injured at the inception. The injured in this case being examined as PW.10 has testified in the Court that the appellant dealt blows on his head by means of an axe and he sustained severe bleeding injuries on his head and fell down on the ground. The evidence of injured itself transpires that the appellant had assaulted him(injured) thrice on his head and he sustained injuries thereon and was also shifted to VSS Medical College & Hospital, Burla for his better treatment and he was admitted there at VSS Medical College & Hospital for four days, however, no bed head ticket of the injured has been proved by the prosecution to establish her admission in hospital for CRLA No.1009 of 2024 Page 6 of 12 four days, but the evidence of injured was never shattered or demolished by the defence in cross- examination as the defence has not at all cross- examined the injured on material points of injuries, except unsuccessfully giving some bald suggestions that he(injured) sustained injuries as he fell down when his cow dragged him on the road. 7. Besides, PW.2 being the wife of the injured is an eye witness to the occurrence and she has testified in the Court alike her husband by deposing that the appellant detained them and assaulted her husband by means of an axe on his head and caused serious bleeding injuries to his person. The cross-examination of PW.2 did not yield any result to the benefit of the defence. Moreover, the Doctor who had examined the injured being examined as PW.7 has not only proved the injury report of the injured, but also has stated in evidence that on examination of the injured, he found one laceration of size 7 cmx5cmx5cm running on the scalp posterior and lateral from middle of the scalp. It is his further evidence that he also found another CRLA No.1009 of 2024 Page 7 of 12 laceration on the scalp of the injured with length of 2cm and also found his skull bone depression which was irregular in shape and size. PW.7 has in fact clarified in his evidence that all the injuries sustained by PW.10 were simple in nature. In addition, the prosecution has also brought evidence for the motive of the crime to be some civil dispute with regard to giving of Ac.1.5 decimals of land by the injured to the appellant for cultivation on rent. 8. From a cumulative analysis of evidence on record together with discussion made hereinabove, it is in fact very clear that the appellant had assaulted the injured by means of an axe and the injured has sustained simple injuries on his head. However, the prosecution has not been able to establish through any clear and cogent evidence that the appellant had intention to kill the injured and in such process, had assaulted the injured by means of an Axe. Section 307 of IPC makes very clear that unless there is an intention to kill, no offence U/S.307 of IPC would stand attracted. The language as used in Section 307 of IPC CRLA No.1009 of 2024 Page 8 of 12 refers to “intention or knowledge” and makes it very clear that under such circumstance that, if he by that act caused death, he would be guilty of murder. In this case, neither any intention to kill is attributable to the appellant nor has any knowledge been ascribed to the appellant through any clear evidence. On the other hand, the appellant is found to have inflicted simple injuries by assaulting the injured with an axe which is in fact a dangerous weapon as contemplated in Section 324 of IPC which speaks that whoever, except in cases provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon offence, is likely to cause death or by means of fire or any heated substance, or by means of any poison or any coercive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal shall be punished with imprisonment of either description for a term which may extend to three years CRLA No.1009 of 2024 Page 9 of 12 or with fine or with both. Further, there is no evidence available on record to say that the appellant had in fact restrained the injured and his wife to proceed in a direction in which they have got right and thereby the offence U/S.341 is also not made out. 9. In view of the aforesaid discussion made hereinabove together with the evidence as available on record, this Court is of the considered opinion that the conviction of the appellant for offence U/S. 307 deserves to be altered/modified to one under Sec. 324 of IPC, but the appellant having charged and convicted for offence U/S. 324 of IPC, his conviction for offence U/Ss. 341/307 of IPC is hereby set aside. Accordingly, the conviction of the appellant is modified/altered to one U/S. 324 of IPC. It is however, brought to the notice of the Court that the appellant was all along on bail during trial and he remained in custody for seventeen days during trial, but after his conviction, the appellant is in custody for last six months and five days and in all total the appellant has already undergone incarceration for a period of six months and twenty two CRLA No.1009 of 2024 Page 10 of 12 days, however, in the facts and circumstance, especially when the dispute between the injured and the appellant was for a petty civil matter relating to cultivation of Ac.1.5 decimals of land on rent and there being no previous conviction proved against the appellant, this Court considers in the interest of justice to modify the substantive sentence of the appellant to the period already undergone by reducing his default sentence to some extent. Accordingly, the appellant is directed to undergo imprisonment for the period already undergone and to pay a fine of Rs.10,000/-, in default whereof, to undergo the Rigorous Imprisonment (RI) for a period of three months. In case of payment of fine, the same shall be disbursed to the injured on proper identification. 10. In the result, the criminal appeal succeeds in part on contest, but in the circumstance there is no order as to costs. Accordingly, the judgment of conviction and order of sentence dated 30.09.2024 passed by learned Asst. Sessions Judge (Woman’s CRLA No.1009 of 2024 Page 11 of 12 Court), Boudh, in ST Case No.10 of 2023 are modified to the extent indicated above. Since the appellant is in jail custody, warrant of modified sentence on appeal in Form No.(M)78 of GR & CO, (Criminal) Vol-II be immediately sent to the Officer-in-charge of the concerned jail through e-mail or any other faster communication mode in view of the Rule 155 of the GR & CO, (Criminal) Vol-I. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 5th day of April, 2025/Jayakrushna Signature Not Verified Digitally Signed Signed by: JAYAKRUSHNA DASH Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Apr-2025 16:31:25 CRLA No.1009 of 2024 Page 12 of 12