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2004 DIGILAW 192 (ORI)

Kameya Gachha v. State of Orissa

2004-04-12

P.K.MOHANTY

body2004
JUDGMENT P. K. MOHANTY, J. — None appears for the revision petitioner inspite of repeated calls. It appears from the order sheet of the Revision Petition that on earlier occasion when the matter was listed on 25.11.2002 and 23.3.2004, none had appeared for the petitioner even though the learned Addl. Public Prosecu¬tor for the State was present. The learned Addl. Public Prosecu¬tor for the State is present. This is a Revision of the year 1996 and the occurrence is of the year 1993 and in such circumstances, the matter is taken up on merits. 2. The learned Addl. Public Prosecutor submits that this is a Revision against the confirming judgment of the learned Ses¬sions Judge, Koraput upholding the conviction and sentence passed under Section 307 I.P.C., and sentencing the petitioner to under¬go R.I. for three years. It is submitted that since the Revision is against the findings of facts recorded by the Courts below, the scope of this Revision is limited to examine the glaring defects and illegality in the case, if any, and the Court should not re-appreciate the evidence on record to come to its indepen¬dent findings. 3. The learned Addl. Public Prosecutor has placed the impugned judgments of the trial Court as well as the appellate decision of the learned Session Judge confirming the conviction and sentence. The petitioner assails the impugned orders on the ground (a) non-examination of material witnesses without adequate reasons calls upon the fairness with the trial; (b) the Courts below ought to have taken adverse inference against the prosecu¬tion case in view of the discrepancies in the medical evidence; and (c) on the place of occurrence and presence of witness at different venue, recovery of weapon of offence and that the doctor having not been examined and the medical certificate having not been exhibited, the injuries said to have been re¬ceived by the injured (P.W.7). 4. The prosecution case in brief was that on 28.5.1993 at about 11:30 A.M. while the injured Pramod Rath was standing in front of the Korkunda Block Office, the accused came from behind from a nearby tea stall and suddenly stabbed on his chest by means of a knife. Hearing hullah, the informant, Govinda Swarna¬kar (P.W.5), Ashok Parichha (P.W.9) and Satyaban Patra (P.W.4) intervened and the accused ran away with the knife. Hearing hullah, the informant, Govinda Swarna¬kar (P.W.5), Ashok Parichha (P.W.9) and Satyaban Patra (P.W.4) intervened and the accused ran away with the knife. The injured having received bleeding injuries, the informant and others took him to the P.H.C. for treatment. Subsequently, he was shifted to the District Headquarter Hospital, Malkanagiri and the Medical Officer there referred him to the District Headquarter Hospital, Koraput for better treatment. The informant lodged the report at Malkanagiri Police Station. The O.I.C. registered the case, took up investigation, issued requisition for medical examination of the injured, seized one blood stained white full shirt on produc¬tion by the informant, also one blood stained terecotton Punjabi on production by the accused, arrested the accused and while the accused was in custody, he confessed to have stabbed the injured by means of a knife and gave recovery of the knife under Section 27 of the Evidence Act. Charge sheet was submitted thereafter and the petitioner faced the trial. The prosecution appears to have examined 12 witnesses including the injured (P.W.7) and the doctor (P.W.1). The learned Assistant Sessions Judge found on appreciate of evidence that P.W.7 sustained bleeding injuries on his chest by the knife blow given by the accused. The learned Assistant Sessions Judge having recorded the findings that the prosecution has proved its case beyond all reasonable doubt, found the accused guilty of the charge under Section 307 I.P.C., convicted thereunder and sentenced him to undergo R.I. for three years. The learned Sessions Judge, Koraput in Criminal Appeal No. 108 of 1995 as against the order of conviction seems to have taken note of the evidence of the eye witnesses and the doctor and on consideration of the materials on record, has confirmed the findings of the trial Court. 5. The learned Sessions Judge has rejected the contention of the appellant that non-examination of the doctor who treated the injured at District Headquarter Hospital, Koraput would not affect the prosecution case since P.W.1, the doctor at the Head¬quarter Hospital, Malkanagiri treated the injured and has proved the bed-head ticket and the injuries sustained. The doctor has also stated that the injured (P.W.7) received the stab injury and proved his report (Ext.1). According to the doctor, the stab injury on the epigestric region involving skin, lectus steeth and lectus of muscle size 1-1/2" x 3/4" x 1". The doctor has also stated that the injured (P.W.7) received the stab injury and proved his report (Ext.1). According to the doctor, the stab injury on the epigestric region involving skin, lectus steeth and lectus of muscle size 1-1/2" x 3/4" x 1". The bed-head ticket (Ext.8) has also been proved by P.W.1 and in cross-examination, he has stated that the injuries can be possible if one falls on a sharp cutting weapon. It is true that the doctor who treated the injured at the Headquarter Hospital, Koraput has not been examined, but in view of the evidence of P.W.1 and the reasons recorded by the learned Sessions Judge, I do not find any illegality in relying upon the evidence of P.W.1, who had examined the injured on police requisi¬tion. It further appears that the learned Sessions Judge had taken note of the contention of the accused-petitioner with regard to the place of occurrence as deposed to by the eye-wit¬nesses and the so-called discrepancies. P.Ws. 4, 7, 8 and 9 are consistent to the effect that the injured was stabbed in front of the Block Office near the hotel. In view of the findings of facts recorded on proper appreciation of evidence, I do not think it is permissible for the High Court to re-appreciate the evidence in the present Revision to come to a different finding. The learned Sessions Judge has found P.Ws 5 and 6 not to be eye witnesses and relied upon the evidence of P.Ws 4 and 8 corroborating the evi¬dence of P.W.7, the injured witness. The I.O. had seized the weapon of offence, the blood stained knife from the appellant under Section 27 of the Evidence. Act. 6. In any event, the main grounds of the attack in the present Revision is the non-appreciation or mis-appreciation of evidence by the learned Court below. Law is well settled that concurrent findings of facts recorded by the Court below cannot be upset by the High Court in its revisional jurisdiction unless there is any manifest error in acceptance of such evidence or the appreciation made by the Courts below is such that no common man on the admitted facts can come to such a finding. It is the settled law that re-appreciation of evidence by the Revisional Court is not permissible specially when both the Courts below have recorded their findings on appreciation of evidence. It is the settled law that re-appreciation of evidence by the Revisional Court is not permissible specially when both the Courts below have recorded their findings on appreciation of evidence. A reference may be made to the case of State of A.P. V. Satyanaray¬tana and another; (2000) 10 S.C.C. 288 and State of Karnataka V. Marigowda; A.I.R. 1982 S.C. 1171. Having gone through the impugned judgments and having heard the learned Addl. Public Prosecutor for the State in extenso, I do not find any glaring defect either in the procedure adopted or any manifest error on the point of law to interfere with the concurrent findings recorded by the Courts below holding the petitioner guilty of offence under Section 307 I.P.C. and sen¬tencing him to undergo R.I. for three years. Accordingly, the Criminal Revision is dismissed. Crl. Revision dismissed.