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2015 DIGILAW 366 (ORI)

Bhuban Khadia v. State of Orissa

2015-06-18

S.K.SAHOO

body2015
JUDGMENT S.K.SAHOO, J. - The appellant Bhuban Khadia faced trial in the Court of learned Addl. Sessions Judge (F.T), Sambalpur in S.T. Case No.31/58 of 2007 for offences punishable under Sections 436, 323 and 506 of Indian Penal Code for setting fire to the residential houses at village Chudapudug, for voluntarily causing hurt to some of the co-villagers and for committing criminal intimidation by threatening the informant and other co-villagers on 18.10.2006 at about 8.30 a.m. The learned trial Court vide impugned judgment and order dated 27.11.2007, acquitted the appellant of the charge under Section 506 IPC but found him guilty under Sections 436/323 IPC and accordingly sentenced him to undergo rigorous imprisonment for a period of five years for the offence under Section 436 IPC and rigorous imprisonment for a period of six months for commission of offence under Section 323 IPC and both the sentences were directed to run concurrently. 2. The prosecution case, as per the First Information Report lodged on 18.10.2006 by one Ramachandra Sahoo (P.W.1) before the Officer-in-charge, Charmal Police Station, Rairakhol is that on that day at about 8.30 a.m., the appellant being armed with bow, arrow and axe came near the house of the informant and told that he would not spare anybody as nobody was helping him in the days of his despair and accordingly set fire to the house of the informant by a match stick after pouring kerosene on the thatch of the house of the informant as a result of which not only the house of the informant but also the houses of Panchu Sahoo (P.W.2), Shyam Kumar Sahu (P.W.3), Ghasinath Jal (P.W.4) and Krushna Karna were gutted in fire. The household articles were also destroyed as a result of fire. When the villagers came to extinguish the fire, the appellant assaulted Panchu Sahu (P.W.2), Fula Sahu (P.W.6), Niranjan Khadia (P.W.7) and Nityananda Karna by means of bow, arrows as well as tangia as a result of which, all of them sustained injuries on their person. The informant estimated the loss due to fire to be more than one lakh. 3. On receipt of the written report from Rama Chandra Sahu (P.W.1), the Officer-in-charge of Charmal Police Station registered Charmal P.S. Case No.79 of 2006 on 18.10.2006 for offences punishable under Sections 436/323/506 IPC and directed ASI Rasananda Sahu (P.W.8) to take up investigation of the case. 3. On receipt of the written report from Rama Chandra Sahu (P.W.1), the Officer-in-charge of Charmal Police Station registered Charmal P.S. Case No.79 of 2006 on 18.10.2006 for offences punishable under Sections 436/323/506 IPC and directed ASI Rasananda Sahu (P.W.8) to take up investigation of the case. Prior to the registration of the FIR, the Officer-incharge received telephonic information from village chudapudug regarding burning of houses and accordingly he along with other staffs and P.W.8 proceeded to village Chudapudug where the FIR was lodged by P.W.1. P.W.8 found the houses of Ramachandra Sahu (P.W.1), Panchu Sahu (P.W.2), Shyama Sahu (P.W.3), Ghasi Jal (P.W.4) and Krushna Karna of village Chudapudug had been set on fire. During course of investigation, he examined the witnesses and prepared the spot map Ext.4 on the very day. He apprehended the appellant who was present near the spot and seized one bow, seven arrows and one tangia from the possession of the appellant in presence of the witnesses vide Ext.5. The I.O. also issued requisition for medical examination of injured Panchu Sahu (P.W.2), Fula Sahu (P.W.6) and Niranjan Khadia (P.W.7) to Charmal C.H.C. and accordingly P.W.2 and P.W.6 were examined by P.W.5 Dr. Sunita Brahma, Medical Officer posted at Charmal C.H.C. on 18.10.2006. The I.O. sent requisition to R.I., Kadaligarh to visit the spot and prepare sketch map and accordingly R.I., Kadaligarh prepared the sketch map vide Ext.8. The appellant was forwarded to the Court of learned S.D.J.M., Rairakhol on 19.10.2006 and after completion of investigation, charge sheet was submitted on 26.12.2006 under Sections 436/323/506 IPC against the appellant. 4. After submission of charge-sheet, the case was committed to the Court of Sessions for trial after observing due committal procedure where the learned trial Court charged the appellant under Sections 436, 323 and 506 of Indian Penal Code on 3.8.2007 and since the appellant refuted that charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 5. During course of trial, in order to prove its case, the prosecution examined eight witnesses. P.W.1 Rama Chandra Sahu is the informant in the case and he is an eye witness to the occurrence. P.W.2 Panchu Sahu is also an eye witness to the occurrence and he stated to have received injuries due to arrow shot of the appellant. 5. During course of trial, in order to prove its case, the prosecution examined eight witnesses. P.W.1 Rama Chandra Sahu is the informant in the case and he is an eye witness to the occurrence. P.W.2 Panchu Sahu is also an eye witness to the occurrence and he stated to have received injuries due to arrow shot of the appellant. P.W.3 Shyama Sahu stated to have seen the appellant moving at the spot holding axe, bow and arrow and he further stated that his house caught fire by the fire from the house of Rama Chandra Sahu (P.W.1). P.W.4 Ghasi Jal is an occurrence witness and he stated that the appellant was holding Tangia, bow and arrows and set fire to his residential house. P.W.5 Dr. Sunita Brahma was the Medical Officer attached to Charmal C.H.C., who on 18.10.2006 examined Panchu Sahu (P.W.2) and Fula Sahu (P.W.6) on police requisition and proved the medical examination reports Exts. 2 and 3. P.W.6 Smt. Fula Sahu also stated to have seen the appellant holding an axe, bow and arrow at the spot and further stated that she was assaulted by the appellant with the axe when she protested him for setting fire to the house of P.W.1. P.W.7 Niranjan Khadia stated that he was assaulted by the appellant by means of Tangia on his back when he protested him for setting fire to the house of P.W.1. P.W.8 Rasananda Sahu is the Investigating Officer. The prosecution also exhibited eight numbers of documents. Ext.1 is the F.I.R. scribed by P.W.1, Exts.2 and 3 are the medical examination reports prepared by P.W.5, Ext.4 is the spot map, Ext.5 is the seizure list, Ext.6 is the requisition of the injured Niranjan Khadia, Ext.7 is the office copy of the requisition and Ext.8 is the sketch map. The prosecution also proved some material objects. M.O.I is the Tangia, M.O.II is the bow and M.O.III to IX are the arrows. 6. The defence plea of the appellant is one of denial and it is pleaded that the appellant was working in the house of P.W.1 as a labourer and when he asked for his wages, P.W.1 did not pay him rather foisted a case against him. No witness was examined on behalf of the defence. 7. 6. The defence plea of the appellant is one of denial and it is pleaded that the appellant was working in the house of P.W.1 as a labourer and when he asked for his wages, P.W.1 did not pay him rather foisted a case against him. No witness was examined on behalf of the defence. 7. The learned trial Court vide impugned judgment and order dated 27.11.2007 held that the prosecution has failed to prove the charge under Section 506 of Indian Penal Code, however found that the prosecution has established the charge under Sections 436 and 323 of Indian Penal Code and accordingly convicted the appellant and sentenced him as noted above. Being dissatisfied with the impugned judgment and order of conviction, the instant appeal has been filed by the convicted accused-appellant. 8. Mr. Rabindranath Nayak, learned counsel for the appellant submitted that the judgment and order of conviction of the trial Court is perverse and the learned trial Court has not assessed the evidence on record properly. He further submitted that it is an improbable story that the appellant would set fire to the houses of the informant and others on the broad day light. He further submitted that since the Investigating Officer has not seized any burnt materials, the prosecution story that the houses of so many persons were set on fire by the appellant on the alleged date of occurrence is not at all acceptable. Mr. Janmejaya Katikia, learned Addl. Government Advocate appearing for the State on the other hand while supporting the impugned judgment and order of conviction submitted that there are number of eye witnesses who have deposed about the occurrence and nothing has been elicited in the cross-examination to disbelieve the version of the eye witnesses. He further contended that two of the injured persons have also categorically stated about the appellant’s participation in the occurrence and in view of the fact that the presence of the injured persons cannot be disputed at the spot and the Investigating Officer immediately after arrival at the spot found the houses of the number of persons were gutted in fire and accordingly prepared spot map in which the same has been reflected, there is no infirmity in the prosecution case. He further contended that there is no reason as to why the witnesses would falsely implicate the appellant and accordingly urged that the impugned judgment is well merited and therefore it be concurred and the appeal being devoid of merits be dismissed. 9. The learned trial Court seems to have elaborately discussed the evidence of all the prosecution witnesses. Coming to the evidence of P.W.1, it is found that he has stated that the appellant being armed with bow, arrow and axe came in front of his house and threatened to kill him and thereafter he set fire to the house by pouring kerosene by a match stick for which his house was totally burnt by fire. The evidence of P.W.1 is corroborated by the other witnesses i.e., P.W.2, P.W.3, P.W.4, P.W.6 and P.W.7. The statements of these witnesses that the appellant was armed with bow, arrows and one axe is corroborated by the evidence of the Investigating Officer who stated to have seized one bow, seven arrows and one Tangia from the possession of the appellant at the spot under seizure list Ext.5. So far as setting fire to the houses of number of persons is concerned, the Investigating Officer P.W.8 has stated that when visited the spot, he found in the spot that the houses of Rama Chandra Sahu (P.W.1), Panchu Sahu (P.W.2), Shyam Sahu (P.W.3), Ghasi Jal (P.W.4) and Krushna Karna had already been burnt and accordingly he prepared the spot map Ext.4. The spot map also indicates that the houses had been burnt. P.W.2 Panchu Sahu has stated that the appellant set fire to his house and when he tried to put off the fire and pulled the thatch of his house, at that time the appellant shot an arrow which hit on his right hand wrist. Similarly P.W.6 Smt. Fula Sahu has stated when she protested the appellant as to why he set fire of the house of P.W.1, the appellant assaulted her on her leg by axe. Both the P.Ws.2 and 6 were sent for medical examination on police requisition and the doctor (P.W.5) examined both of them and the medical examination reports of P.W.2 and P.W.6 have been marked as Exts.2 and 3. P.W.2 has sustained swelling injury and P.W.6 has sustained an abrasion which is opined to be simple in nature. Both the P.Ws.2 and 6 were sent for medical examination on police requisition and the doctor (P.W.5) examined both of them and the medical examination reports of P.W.2 and P.W.6 have been marked as Exts.2 and 3. P.W.2 has sustained swelling injury and P.W.6 has sustained an abrasion which is opined to be simple in nature. The injuries sustained by P.W.2 and P.W.6 which has been proved by the prosecution also establishes their presence at the spot. Corroborating the evidence of P.W.1, P.W.2 has further stated that on the date of occurrence when he came out of the house hearing shout of P.W.1, he found that the house of P.W.1 was burning and the appellant was standing being armed with bow, arrow and axe and when he asked the appellant as to why he set fire to the house of P.W.1, the appellant told him that he would set fire to his house also and accordingly set fire to P.W.2’s house. Similarly, the evidence of P.W.3 Shyama Sahu indicates that he noticed the house of P.W.1 was on fire and at that point of time the appellant was moving by holding bow, arrow and axe. The evidence of P.W.4 Ghasi Jal indicates that on the date of occurrence when he came out of the house, he found the house of P.W.1 was burning and the appellant was holding Tangia, bow and axe and was shouting in a violent state and thereafter the appellant set fire to his house. The evidence of P.W.6 Smt. Fula Sahu indicates that when she came out of her house hearing hullah, she found the appellant holding axe, bow and arrow and was dancing in a violent mood. The evidence of P.W.7 Niranjan Khadia indicates that when he protested the appellant for setting fire to the house of P.W.1, the appellant assaulted him on his back for which he fell down. Though the witnesses were cross-examined at length but nothing substantial has been elicited to disbelieve their testimonies. Thus from the evidence adduced by the prosecution, it is established that it is none else but the appellant who has set fire to the residential houses of P.W.1 and other co-villagers on the date of occurrence. Though the witnesses were cross-examined at length but nothing substantial has been elicited to disbelieve their testimonies. Thus from the evidence adduced by the prosecution, it is established that it is none else but the appellant who has set fire to the residential houses of P.W.1 and other co-villagers on the date of occurrence. The evidence of this eye witnesses gets corroboration from the evidence of Investigating Officer as he has noticed during the spot visit, the burning houses of P.W.1 and others and accordingly prepared the spot map. Similarly the statements of the injured persons that they have sustained injury during course of occurrence in the hands of the appellant are corroborated by the medical evidence. 10. Witnesses are the eyes and ears of justice. Eye witnesses’ account requires a careful independent assessment and evaluation for their credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story. On a careful scrutiny, all the eye witnesses’ account is found to be credible and trustworthy and they have given the account of the incident in similar terms without there being any material contradiction which makes their evidence trustworthy and beyond any manner of doubt. The Court who sees the witness and hears the evidence is in a position to assess the credibility of the evidence. Due weight must be given to the appreciation of evidence by the trial Court, if the appreciation of evidence is not unreasonable. 11. The learned trial Court has properly assessed the evidence and rightly came to the conclusion that from the available materials on record, the prosecution has proved the case beyond all reasonable doubt for offences punishable under Sections 436/323 IPC against the appellant. After analyzing the evidence on record, particularly the evidence of the eye witnesses and other circumstantial evidence, I found that there is no infirmity in the impugned judgment and in view of the available materials on record, it appears that the prosecution has successfully established the charges under Sections 436/323 IPC against the appellant beyond all reasonable doubt. The learned trial Court has imposed the sentence of five years for offence punishable under Section 436 IPC and R.I. for six months for offence punishable under Section 323 IPC. Imposition of such sentences cannot be said to be excessive. The learned trial Court has imposed the sentence of five years for offence punishable under Section 436 IPC and R.I. for six months for offence punishable under Section 323 IPC. Imposition of such sentences cannot be said to be excessive. In the result, the impugned judgment and order of conviction of the appellant for offences punishable under Section 436 Indian Penal Code and the sentence of rigorous imprisonment for a period of five years and Section 323 Indian Penal Code and the sentence of rigorous imprisonment for a period of six months and the direction that both the sentences are to run concurrently as was imposed by the learned trial Court is hereby confirmed. Accordingly, the jail criminal appeal stands dismissed. Appeal dismissed.