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2015 DIGILAW 652 (ORI)

TIRTHA RANA v. STATE OF ORISSA

2015-11-23

S.PUJAHARI

body2015
JUDGMENT : S. Pujahari, J. - The appellants herein this appeal call in question the judgment of conviction and order of sentence dated 30.05.1991 passed against them in Sessions Case No. 66/17 of 1990 by the learned Addl. Sessions Judge, Titilagarh. The learned Addl. Sessions Judge, Titilagarh vide impugned judgment and order held each of the appellants guilty of the charges under Sections 147/148/307/323/325 of IPC and sentenced each of them to undergo R.I. for one month under Section of 147 IPC, R.I. for one month under Section 148 of IPC and R.I. for one year under Section 307 of IPC with the order the sentences imposed shall run concurrently, but no separate sentence was awarded to the appellants for their conviction under Sections 323/325 of IPC. During the course of the appeal, the appellant no.1 namely, Tirtha Rana having died, the case against him stands abated. 2. The case of the prosecution is that on 2.8.1989 early in the morning, the appellants forming an unlawful assembly, being armed with Thenga, Tangia and other deadly weapons said to have assaulted one of the member of informant party, namely, Krushna Rana (P.W.4) who was in the embankment of the village tank namely Jugen Bandha. Getting the news of the same when his relatives namely, Jujesti @ Judhistir Rana, Budu Rana, Duta Rana, Dhuble Rana and Muljit Rana arrived there, they were also assaulted by the present appellants. The matter was reported to the police at Titlagarh Police Station vide P.S. Case No. 82 of 1989. The police on investigation found substance in the information and charge sheeted the appellants for the aforesaid offences. 3. Taking into consideration the aforesaid case which was supported by the materials on record collected during investigation, the trial court framed the charges against the appellants for alleged commission of offences punishable under Sections 147/148/307/323/325 of IPC. As the appellants pleaded not guilty to the charge, they faced their trial. The prosecution, examined as many as seventeen witnesses and also exhibited certain documents and material objects in order to bring home the charge against the appellants. As the appellants pleaded not guilty to the charge, they faced their trial. The prosecution, examined as many as seventeen witnesses and also exhibited certain documents and material objects in order to bring home the charge against the appellants. In their defence, the appellants, who had taken the plea of false implication and specifically pleaded the informant party to have assaulted them due to previous animosity with regard to possession of the Kumbharmunda Bhaga land, when they were in the said land for cultivation for which the counter case vide Titilagarh P.S. Case No. 81 of 1989 corresponding to Sessions Case No. 35/10 of 1990 pending against them, did not examine independent witness, but exhibited certain documents. However, on conclusion of trial placing reliance on the evidence available on record, the trial court returned the judgment of conviction and order of sentence as stated earlier. 4. Assailing the aforesaid judgment of conviction and order of sentence, it has been submitted by the learned counsel appearing for the appellants that since the aforesaid case was a counter case to the case instituted against the informant party by the appellants and all the so called injured persons in this case were interested witnesses being inimically disposed of to the appellants, the trial court should not have held the appellants guilty of the charges on their versions, more particularly, when the case and counter case was not tried one after the other by the trial court and disposed of simultaneously. Therefore, it has been submitted that the judgment of conviction and order of sentence passed against the appellants are unsustainable in the eye of law. 5. In response, it has been submitted by the learned counsel for the State that no doubt the aforesaid was a counter case to the case instituted against the informant party at the instance of the present appellants, but the appellants having raised no objection during the trial of their case independently though counter case was pending and also the trial court having recorded the finding that it was a case of free fight between two groups, the judgment of conviction and order of sentence cannot be questioned on the aforesaid ground. Furthermore, it is submitted that since evidence is there disclosing the fact that the appellants assaulted the informant party members forming an unlawful assembly and such evidence is unimpeachable in character and suffers from no infirmity, the trial court rightly held the appellants guilty of the charges. Hence, this appeal challenging the judgment and order of conviction and sentence, is devoid of merit, is also the submission of the learned counsel for the State. 6. On perusal of the evidence on record, it would go to show that P.W. 1-Muljit Rana, P.W. 2-Dhuble Rana, P.W. 3-Judhistir Rana, P.W. 4-Krushna Rana, P.W. 5-Duta Rana, P.W. 9-Muni Rana and P.W. 10-Abhiram Rana who are injured witnesses are inimically disposed of with the appellants. They deposed that when the appellants were assaulting on Krushna Rana, P.W.4 in the Jugen Bandh, they arrived there, but they were also assaulted by the appellants and sustained the injuries. Their such version is also corroborated by the version of P.W. 15, the Doctor who examined them. Some of the independent witnesses such as P.W. 6, P.W. 7 and P.W. 8 have also corroborated the aforesaid version. Placing reliance on the same, the trial court recorded the conviction and sentence against the appellants as stated earlier without appreciating the injuries sustained by the appellants. So also the plea of the appellants were not considered in proper perspective. 7. It appears that many of the appellants such as deceased appellant no. 1- Tirtha Rana, appellant no. 7-Alekh Rana, appellant no. 6-Udhaba Rana, appellant no.5-Bhuta Rana had sustained injuries. The injury sustained some of them are not superficial inasmuch as Tirtha Rana and Alekh Rana had sustained fracture as disclosed from the evidence of P.W. 15, Dr. R.N. Ratha, who had examined the appellants as well as the informant party members on that day. The evidence of the doctor in this regard has also been corroborated by the injury report vide Ext. A to E. The prosecution party has no explanation for the same inasmuch as none of the witnesses to the occurrence examined by the prosecution made any whisper under what circumstances the above appellants sustained the injuries during the course of fight with the prosecution party. The witnesses particularly the injured witnesses are interested and inimically disposed of with the appellants, for possession of Kumbharmunda Bhag land. The witnesses particularly the injured witnesses are interested and inimically disposed of with the appellants, for possession of Kumbharmunda Bhag land. In the aforesaid premises, when they have not explained the injuries sustained by the appellant during the course of the fight, it cannot be said that they have spoken the whole truth, particularly, when the appellants have taken a plea that when they were cultivating their aforesaid bhag land, they were assaulted by the prosecution party members, appears to be probable and the same has impact on the acceptance of evidence of the prosecution adduced in this case against them, as worthy of credence. 8. The Apex Court in the case of Laxmi Singh and Ors. v. State of Bihar, reported in (1976) 4 SCC 394 have held as follows: "xxx xxx Where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants." In the case of Laxmi Singh (supra), the Apex Court has placed reliance on the decision in the case of Mohar Rai v. State of Bihar, reported in (1968) 3 SCR 525 wherein it has been held as follows: "The trial court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of P.W. 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore, the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries. In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants." 9. Under these circumstances the prosecution had a duty to explain those injuries. In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants." 9. In view of the aforesaid law laid down by the Apex Court, since in this case prosecution has not explained the injuries sustained as many as five of the appellants in this case and the injury sustained by some of them are grievous in nature, the trial court should not have placing reliance on the aforesaid evidence of the interested and inimical witnesses recorded the finding of conviction against the present appellants particularly when the appellants have taken probable plea that they were assaulted when they were in possession of their land by the prosecution party members who are inimically disposed of to them appears to be probable and corrode the credibility of the version of the witnesses to the occurrence examined by the prosecution. 10. Coupled with the same, the case was also not tried simultaneously with the counter case one after another and disposed of simultaneously by the same court in spite of the mandate of law laid down by the Apex Court in this regard. Reliance in this regard can be placed on two decisions of the Apex Court in the case of Nathi Lal and Ors. v. State of U.P. and Anr., reported in 1990(Supp) SCC 145 which has been followed in the case of Sudhir and Ors. v. State of M.P., reported in (2001) 2 SCC 688 . 11. In view of the aforesaid, this Court is constrained to observe that the trial court erred in accepting the version of the witnesses inimically disposed of to the appellant while appreciating the evidence on records holding the appellants guilty of the charges including the deceased appellant in which they have been found guilty. Therefore, the judgment of conviction and order of sentence passed against the appellants are unsustainable. 12. Resultantly, for the forgoing reasons, this criminal appeal is allowed. The judgment of conviction and order of sentence are set aside. Consequently, the appellants are acquitted of the charge in which they were found guilty. They be discharged from their bail bonds. Therefore, the judgment of conviction and order of sentence passed against the appellants are unsustainable. 12. Resultantly, for the forgoing reasons, this criminal appeal is allowed. The judgment of conviction and order of sentence are set aside. Consequently, the appellants are acquitted of the charge in which they were found guilty. They be discharged from their bail bonds. LCR be returned forthwith along with a copy of this Judgment. Final Result : Allowed