Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.525 of 2021 (In the matterof an applicationunder Section 401 read with Section 397 of the Code of Criminal Procedure). Nilakantha Harijan …. Petitioner(s) -versus- State of Orissa …. Opposite Party (s) Advocates appeared in the case throughHybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr. Arijeet Mishra, Adv. Mr. D. Mund, Adv. CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-30.07.2024 DATE OF JUDGMENT: -06.09.2024 Dr. S.K. Panigrahi, J. 1. The petitioner has filed this Revision challenging the conviction and sentence imposed by the Learned Additional Sessions Judge, Jeypore, in Criminal Appeal No.38/2016. The Appellate Court modified the conviction from Section 307 IPC to Section 324 IPC and sentenced the petitioner to two years of rigorous imprisonment, along with a fine of Page 1 of 11
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 Rs. 10,000/-, with an additional three months of rigorous imprisonment in default of payment, as per the order dated 20.11.2021. I. CASE OF THE PROSECUTION: 2. Succinctly put, the case of the prosecution is as follows: (i) On 09.08.2013, the petitioner, NilakanthaHarijan, allegedly stabbed KumbhaPatra on his left side back with a knife, following a verbal altercation. The incident occurred after the petitioner made a death threat to him. (ii) The victim, KumbhaPatra, was initially taken to a local hospital in Kumuliput and later transferred to Koraput Hospital due to the severity of his injuries. (iii) Sanjay, the son of the victim, witnessed the stabbing incident. The accused is the brother of the victim’s wife. (iv) A case under Section 326 of the Indian Penal Code (IPC) was registered against the petitioner based on an FIR lodged by DebadashHarijan. The investigation led to the arrest of the petitioner, and the weapon used in the assault was seized. The charge sheet was filed under Section 307 of the IPC, and the case was committed to the Court of Sessions for trial. (v) The medical officer confirmed that the victim sustained a stab injury on the left side of his back and a cut injury on his left index finger, indicating the use of a sharp weapon. (vi) The prosecution presented 10 witnesses, including the victim, his son, his father (informant), the medical officer, and the investigating officer. Page 2 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 The evidence confirmed that the victim was stabbed by the accused and that the injuries were serious, with one being classified as grievous. (vii) Consequently, the Trial Court convicted the petitioner under Section 307 of the IPC for attempting to commit murder. (viii) Upon appeal, the Appellate Court re-evaluated the evidence and altered the conviction from Section 307 IPC to Section 324 IPC (voluntarily causing hurt by dangerous weapons or means). The Appellate Court found no intention to cause death by the petitioner and determined that the injuries were not sufficient in the ordinary course of nature to cause death. (ix) The petitioner was sentenced to rigorous imprisonment for two years and a fine of Rs.10/000/ with a default sentence of three months’ imprisonment. (x) The petitioner challenged the conviction under Section 324 on the grounds that the evidence provided by the prosecution was insufficient and relied heavily on the testimonies of the interested witnesses, while independent witnesses did not support the prosecution’s case. II. SUBMISSIONS ON BEHALF OF THE REVISIONIST: 3. Learned counsel appearing on behalf of the revisionist – NilakanthaHarijan – urged the following submissions: (i) The petitioner submitted that he has been falsely implicated due to a previous enmity with the victim. The incident arose out of a quarrel between the petitioner and the injured, but the petitioner denies the allegations of assault. Page 3 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 (ii) He further submitted that the conviction by the trial court was primarily based on the statements of the interested witnesses, who are close relatives of the victim. The independent witnesses did not support the prosecution’s case/ as they turned hostile and did not corroborate the allegations of assault. (iii) The petitioner contended that the Trial Court made an error in convicting him under Section 307 of the IPC. The appellate court also wrongly altered the conviction from Section 307 to Section 324 without proper appreciation of the evidence. There is no direct or substantial evidence to prove the act under Section 324. (iv) The petitioner highlighted inconsistencies and contradictions in the testimonies of the interested witnesses. He argues that their evidence should have been scrutinized more thoroughly, especially given the prior enmity between the parties. (v) The petitioner argues that the evidence presented by the prosecution does not establish the offence under Section 324 IPC beyond a reasonable doubt. The courts below failed to appreciate the lack of material evidence against the petitioner and wrongly convicted him. (vi) The petitioner notes that he has already undergone approximately sixteen months in custody out of the two-year sentence. Considering the time elapsed since the incident (eleven years), the petitioner requests that the sentence be set off against the period already undergone and that he be released. Page 4 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 III. APPELLATE COURT’S JUDGMENT 4. The Appellate Court conducted a review of the Trial Court’s judgment/ focusing on the evidence, the legal standards applied, and the appropriateness of the conviction under Section 307 of the IPC. 5. The Appellate Court scrutinized the testimonies of key witnesses, particularly the injured (P.W.9) and the eye-witness (P.W.8). The Court found their accounts to be credible, noting that the testimony of the injured was consistent with the medical evidence provided by the doctor (P.W.6). 6. The defence had argued that the Trial Court relied excessively on the testimony of interested witnesses (the injured and his relatives) and ignored the fact that several other witnesses turned hostile. However, the Appellate Court emphasized that the testimony of the injured carries significant weight, especially when corroborated by medical evidence. 7. The Appellate Court also considered the argument of the defence that the injuries could have resulted from a fall due to intoxication, but found no substantial evidence to support this claim. The medical evidence indicated that the injuries were consistent with being caused by a sharp weapon, not a fall. 8. The Appellate Court then assessed whether the ingredients of Section 307 of the I.P.C. were met. For a conviction under Section 307 of the I.P.C., it must be proven that the accused had the intent to cause death and that the injuries inflicted were sufficient in the ordinary course of nature to cause death. Page 5 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 9. The Court then concluded that while the injury inflicted by the appellant was serious (grievous in nature), it was not sufficient in the ordinary course of nature to cause death. The doctor (P.W.6) had not opined that the injury was life-threatening, which is a crucial requirement for a conviction under Section 307 of the I.P.C. 10. Given the evidence, the Appellate Court held that the conviction under Section 307 was not justified. Instead, it found that the facts of the case more appropriately fit the charge under Section 324 of the IPC, which deals with voluntarily causing hurt by dangerous weapons or means. 11. The Appellate Court, therefore, altered the conviction to Section 324 of the I.P.Cand reduced the sentence from seven years of rigorous imprisonment to two years, along with a fine of Rs.10,000/-. IV. COURT’S REASONING AND ANALYSIS: 12. After having heard the Parties and perused the record, let us now examine the legal principles in light of the merits of the case. The term "hurt" is commonly understood to refer to any act that results in physical pain, injury, or the onset of disease in an individual. Hurt can be inflicted either voluntarily or through the use of dangerous weapons or methods. When hurt is caused voluntarily using such perilous means, it falls under the purview of Section 324 of the Indian Penal Code (IPC), which is outlined as follows: “324. Voluntarily causing hurt by dangerous weapons or means.—Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of Page 6 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 fire or any heated substance, or by means of any poison or any corrosive 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, or with fine/ or with both.” 13. To establish an offence under Section 324 of the I.P.C., the presence of following ingredients is a must which are as follows:- 1. Voluntary hurt caused to another person by the accused, and 2. Such hurt was caused: a. By any instrument used for shooting, cutting or stabbing, or any other instrument likely to cause death, or b. By fire or other heated instruments, or c. By poison or other corrosive substance, or d. By any explosive substance, or e. By a substance that is dangerous for the human body to swallow, inhale, or receive through blood, or f. By an animal. 14. When an individual commits the offense of voluntarily causing hurt using dangerous weapons or means under Section 324 of the Indian Penal Code, they are liable to be punished with imprisonment for a term of up to threeyears, or with a fine. 15. In the present case, the evidence provided by the prosecution witnesses clearly demonstrates that the accused inflicted injuries on the victim using a knife, following an altercation between the accused and the victim. The testimony also corroborates the existence of prior enmity Page 7 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 between the parties involved. As a result, the charge under Section 324 of the Indian Penal Code is substantiated against the petitioner. 16. Upon reviewing the impugned order and the accompanying documents, it becomes evident that both the Trial Court, and later the Appellate Court upon re-evaluation, meticulously analysed the evidence gathered by the police to ascertain whether a prima facie offence under Section 324 was made out. 17. At this stage, the defence is not permitted to challenge the truthfulness, credibility, or veracity of the prosecution’s statements, circumstances, or documents. The question of whether the accused inflicted grievous harm upon the victim with a knife, or whether such harm was voluntarily caused, is a matter to be determined during the evidentiary phase before the Trial Court, and subsequently, the Appellate Court. 18. The medical report unequivocally confirms that the injury was inflicted by the accused using a knife. Consequently, at the stage of framing charges, there is no room for a detailed appreciation of the entire body of evidence. The Trial Court, and subsequently the Appellate Court, have duly examined the case and determined that a prima facie case against the accused exists and has rightly convicted the appellants for the offences punishable under Section 324 of the IPC. 19. The alteration of conviction from Section 307 of the I.P.C. to Section 324 of the I.P.C. by the learned lower Appellate Court is concerned, this Court is of the view that the lower Appellate Court has rightly taken the view that there was an error apparent in the findings of the trial court i.e. the learned C.J.M.-cum-Assistant Sessions Judge, Jeypore in view of Page 8 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 the fact that the Petitioner had stabbed once by a knife on the left side of P.W.9 and, therefore, though the Petitioner had intention to cause injury but had not intention to cause his death. For better appreciation, paragraphs 12, 13 and 14 of the impugned judgment dated 20.11.2021 passed by the learned Additional Sessions Judge, Jeypore in Criminal Appeal No.38 of 2016/ (E Court No. Crl.A.38 of 2016) are extracted herein below: “12. For the purpose of constituting an attempt under Sec. 307 of I.P.C. there are two ingredients required; firstly, an evil intent or knowledge, and, secondly, an act done. In order to attract offence under sec. 307 of I.P.C., it is necessary to establish that if the victim would have met his death, the offence would have been under sec. 302 of I.P.C. In the instant case, the Doctor has not opined that the injuries found on P.W. 9 are sufficient in the ordinary course of nature to cause death. To record a conviction under sec. 307 of I.P.C., the prosecution has to prove the actual intention of the accused and also as to what is the nature of the injuries, i.e. the extent of damage caused to the body or any organ thereof. 13. From the oral and documentary evidence including the injury report, I arrived at a conclusion that on 09.08.2013 at 5.00 P.M. at village Malidambaguda, the accused/appellant had stabbed P.W.9 once on the posterio lateral aspect of the back on the left side. The said injury as per the doctor (P.W.6) is grievous in nature. As the appellant had only stabbed once by a knife, it is felt that the accused had at best intention to cause injury but had no intention to cause his death. The injury No.2 is a defence wound and is simple in nature. From the above discussion, in my opinion the prosecution has failed to prove its case Page 9 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 under sec. 307 of I.P.C. The learned A.S.J., committed an error by convicting the appellant under sec. 307 of the I.P.C. There is an error apparent in the findings of the learned A.S.J. as the essential ingredients of sec. 307 of I.P.C. were not proved. The findings are to be altered. The nature and extent of the sentence are also to be altered. 14. Considering the injuries and the weapon of offence, it appears that the ingredients of the offence under sec. 324 I.P.C. is made out. A person charged with a heinous or grave offence can be punished for less grave offence of cognate nature whose ingredientsare satisfied with theevidence on record. In this case, the evidence ledbythe prosecution for a grave offence, covered an offence of a less grave nature. Hence, the prosecution is successful in establish a case under sec. 324 I.P.C against the accused/appellant. So, the successfully and beyond all prosecution has reasonable the has accused/appellant has committed an offence under Sec. 324 I.P.C. Considering the seriousness of the offence, I am not inclined to extend the beneficial provision of sec. 360 of Cr.P.C. or the provision of Probation of Offender's Act to him.” proved doubt that
Legal Reasoning
20. Therefore, there is no merit in any of the contentions raised on behalf of the Petitioner and there is no scope to differ with the findings arrived at by the learned Additional Sessions Judge, Jeypore vide judgment dated 20.11.2021 passed in Criminal Appeal No.38 of 2016/ (E Court No. Crl.A.38 of 2016). The Petitioner has rightly been convicted for commission of offence under Section 324 of the I.P.C. Page 10 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 21. In the view of aforesaid discussion as well as law laid down above, I find no perversity or illegality in the impugned order passed by the Appellate Court warranting any interference by this Court at the stage. 22. As a result, the present Criminal Revision filed by the revisionist is dismissed. (Dr.S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 6th September, 2024/ Page 11 of 11