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2013 DIGILAW 349 (ORI)

Bhalu Sahu @ Narayana Sahu v. State of Orissa

2013-08-27

B.K.PATEL

body2013
Judgment B.K. PATEL, J. Both the appeals are directed against the judgment and order dated 8.11.2005 passed by learned 1st Additional Sessions Judge, Berhampur in Sessions Case No. No.36 of 2005 (Sessions Case No.89 of 1998-GDC) convicting the appellants for offences punishable under Sections 294, 323 and 341 read with Section 149 of the I.P.C. Each of the appellants has been sentenced to undergo S.I. for three months under Section 294 read with Section 149 of the I.P.C., S.I. for one year under Section 323 read with Section 149 of the I.P.C. and S.I. for one month under Section 341 read with Section 149 of the I.P.C. 2. The alleged occurrence took place on 13.5.1997. The informant P.W.5 was working as Assistant Sub-Inspector of Excise, Berhampur during that period. Prosecution case is that on the date of occurrence the informant P.W.5 went to City Hospital, Berhampur in his scooter. At about 9.30 A.M, when he reached the Hospital gate, the appellants and co-accused persons restrained by surrounded him, abused him in obscene language, threatened to kill him, assaulted on his belly, chest and face and snatched away Rs.1470/- from his pocket. At the time of occurrence appellant Santosh Kumar Behera and Udaya Kumar Behera brandished knives. When the informant P.W.5 fell down on the road as a result of assault by the accused persons, he was dragged and trampled by them. The informant P.W.5 became unconscious. He was taken to City Hospital, Berhampur and admitted as an indoor patient. P.W.7, who was working as Sub-Inspector of Excise, Berhampur, on getting telephonic information regarding the occurrence, went to the spot and thereafter to the Hospital along with his staff. Investigating police officer P.W.6, who was working as Sub-Inspector of Police, Berhampur Town P.S., also got telephonic message regarding the occurrence at about 10.00 A.M. upon which he made Station Diary Entry No.487 dated 13.5.1997, and, being directed by the Inspector-In-Charge, went to the spot and the Hospital. Informant P.W.5 regained his sense at about 5.00 P.M. and narrated regarding the occurrence. On the basis of First Information Report Ext.4 scribed by informant P.W.5’s son, Berhampur Town P.S. Case No.99 of 1997 for commission of offences under Sections 147, 294, 323, 325, 506 and 379 read with Section 149 of the I.P.C. was registered against the appellants as well as two other named accused persons and ‘others’. On the basis of First Information Report Ext.4 scribed by informant P.W.5’s son, Berhampur Town P.S. Case No.99 of 1997 for commission of offences under Sections 147, 294, 323, 325, 506 and 379 read with Section 149 of the I.P.C. was registered against the appellants as well as two other named accused persons and ‘others’. In course of investigation, P.W.6 examined the witnesses and effected seizure of articles including blood stained banian and shirt of informant P.W.5 under seizure list Ext.5 and outdoor patient register of the Hospital under seizure list Ext.2. On completion of investigation, charge-sheet was submitted against the appellants and two others for commission of offences under Sections 147, 341, 294, 307 and 379 read with Section 149 of the I.P.C. Co-accused Moheswar Sethi having absconded, the appellants and co-accused A. Moheswar Rao faced the trial. 3. Defence took the plea of complete denial. 4. In order to substantiate the allegations, prosecution examined seven witnesses, P.Ws.1 to 7, of whom P.Ws.5, 6 and 7 have already been introduced. P.W.1 is a doctor, who medically examined the informant P.W.5 and issued injury report Ext.1. P.W.2 was a witness to seizure of outdoor patient register of the Hospital under seizure list Ext.2. P.Ws.3 and 4 did not support the prosecution case. Prosecution also placed reliance on the documents marked Exts.1 to 6 and material exhibits M.Os.I and II, informant’s banian and shirt. No evidence, oral or documentary, was adduced by the defence. 5. On an appraisal of evidence on record, co-accused A. Moheswar Rao was acquitted of all the charges and the appellants were also acquitted of the charges under Sections 147/379/307/149 of the I.P.C. However, the appellants were convicted and sentenced as stated supra. 6. It was submitted by the learned counsel for the appellants that conviction of the appellants is based on the solitary evidence of informant P.W.5. It was contended that in absence of corroboration to the testimony of P.W.5 the trial court should not have accepted his evidence. However, on a close scrutiny of the evidence it is found that, though evidence of P.W.5, injured-informant, is not corroborated by ocular testimony of any eye witness, evidence of P.W.5 by itself is free from any infirmity. It was contended that in absence of corroboration to the testimony of P.W.5 the trial court should not have accepted his evidence. However, on a close scrutiny of the evidence it is found that, though evidence of P.W.5, injured-informant, is not corroborated by ocular testimony of any eye witness, evidence of P.W.5 by itself is free from any infirmity. He testified that on 13.5.1997 at 9.30 A.M. when he was going to the Hospital in his scooter, the appellants and co-accused persons restrained, assaulted and rebuked him in obscene language. He was dragged from his scooter. Blows were dealt on his face, chest and abdomen. Due to assault, he lost his sense. He was removed to C.T. Hospital by someone. He regained his sense at about 5.00 P.M. and, as per his instruction, his son scribed and submitted First Information Report Ext.4. P.W.5 deposed to have undergone treatment as an indoor patient in the Hospital till 15.5.1997. It is also in his evidence that his blood stained banian and shirt were seized by police under seizure list Ext.5. It has been elicited from P.W.5 in course of his cross-examination that he sustained only one bleeding injury on his lower lip due to assault. It has also been brought out in his cross-examination that the appellants were doing liquor business. Nothing has been elicited in P.W.5’s cross-examination to discredit his testimony. Evidence of P.W.5 is corroborated by the contents of First Information Report Ext.4. That apart, evidence of P.W.5 is also corroborated by medical evidence of P.W.1 who medically examined P.W.5 and issued injury report Ext.1. P.W.1 testified that he found one lacerated wound on P.W.5’s lower lip. P.W.7 also corroborated the evidence of P.W.5 as a post-occurrence witness. In such circumstances, there is no infirmity in the impugned judgment convicting the appellants under Sections 294, 323 and 341 read with Section 149 of the I.P.C. 7. Learned counsel for the appellants also contended that in absence of any cogent ground assigned by the trial court, the appellants should have been held to be entitled to protection under the Probation of Offenders Act, 1958. Learned counsel for the appellants also contended that in absence of any cogent ground assigned by the trial court, the appellants should have been held to be entitled to protection under the Probation of Offenders Act, 1958. It was further contended by the learned counsel for the appellants that while refusing to extend the benefit of the Probation of Offenders Act to the appellants, the trial court has sentenced each of the appellants to undergo the maximum period of simple imprisonment which can be awarded under sections 294, 323 and 341 of the I.P.C. without assigning any reason. It was argued that as no previous conviction has been proved against any of the appellants, the trial court should have released the appellants under Section 3 of the Probation of Offenders Act. No doubt no previous conviction has been proved against the appellants. However, the trial court is found to have rightly arrived at the opinion that the appellants are not entitled to the benefit of Probation of Offenders Act having regard to the circumstance that the appellants committed the alleged offences against a public servant for conducting official duty. Nonetheless, the trial court has not assigned any reason for awarding maximum sentence of simple imprisonment which has been prescribed for the offences under which the appellants stand convicted. The occurrence took place more than 16 years back. It appears that the appellants were in custody for substantial period as under trial prisoners. Considering such circumstance, it is found that it shall not be desirable to send the appellants back to jail at such a belated stage. Sentencing the appellants to undergo sentence already suffered by them as under trial prisoners shall serve the ends of justice. 8. Accordingly, while dismissing both the appeals and maintaining their conviction under Sections 294, 323 and 341 read with Section 149 of the I.P.C., sentences imposed on them is modified, and each of the appellants is directed to undergo the period of imprisonment already undergone by him.