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2016 DIGILAW 1112 (ORI)

Champeswar Rana v. State of Orissa

2016-11-17

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. The petitioner Champeswar Rana faced trial in the Court of learned Chief Judicial Magistrate, Sonepur in G.R. Case No. 109 of 1993 for offence punishable under section 324 of the Indian Penal Code. The learned Trial Court vide impugned judgment dated 22.04.1995 convicted the petitioner under section 324 of Indian Penal Code and order dated 08.05.1995 sentenced him to undergo R.I. for three months and to pay a fine of Rs.500/-(Rupees five hundred), in default, of payment of fine, to undergo further R.I. for fifteen days. The petitioner preferred an appeal in the Court of Session which was heard by the learned Addl. Sessions Judge, Balangir in Criminal Appeal No. 59/20 of 1995-97 and vide impugned judgment and order dated 27.03.1999, the learned Appellate Court has been pleased to uphold the judgment and order of the Trial Court and accordingly, dismissed the appeal, hence the revision. 2. The prosecution case, as per the First Information Report is that on 29.06.1993 at about 6.30 a.m. while P.W.2 Manoj Kumar Sahoo was working near the tube well of the Primary School of Kayapadar, at that point of time the petitioner came with a Tangia and dealt three successive blows to P.W.2. The first blow fell on the head of the injured and the subsequent two blows fell on his back. The occurrence was seen by one Shankar Bhoi (P.W.3) and subsequently, some more persons of the village congregated at the spot. On the basis of the written report presented by Dayanidhi Sahoo (P.W.1), father of P.W.2 at Kamsara outpost, A.S.I. of Police Santosh Kumar Pradhan (P.W.6) made a Station Diary entry and took up investigation of the case and sent the report to the officer in charge of Tarva Police Station, who on receipt of the same, registered Tarva P.S. Case No.43 of 1993 on 30.06.1993 and directed P.W.6 to investigate the matter. During course of investigation, P.W.6 examined the informant and other witnesses and sent the injured to Kamsara dispensary under police requisition. He seized a Tangia being produced by the petitioner and prepared seizure list. He arrested the petitioner and forwarded him to Court and on completion of investigation, he submitted charge sheet on 21.07.1993 under section 324 of the Indian Penal Code. 3. He seized a Tangia being produced by the petitioner and prepared seizure list. He arrested the petitioner and forwarded him to Court and on completion of investigation, he submitted charge sheet on 21.07.1993 under section 324 of the Indian Penal Code. 3. The defence plea is one of the denial and it was pleaded that due to previous dispute between the parties, the case has been foisted. 4. During course of trial, in order to establish its case, the prosecution examined six witnesses. P.W.1 Dayanidhi Sahu is the informant in the case and he is the father of the injured. He is a post occurrence witness who took P.W. 2 to the hospital for treatment. P.W.2 Manoj Kumar Sahoo is the injured and he stated that the petitioner gave him four blows by means of an axe. P.W.3 Shankar Bhoi did not support the prosecution case and he was declared hostile. P.W.4 Sankapani Nag is an eye witness to the occurrence and he also stated that the petitioner assaulted P.W.2 by means of an axe and gave four blows to him. P.W.5 Dr. Benudhar Pandey was the Medical Officer of Government Dispensary, Kamsara who examined the injured on 29.06.1993 and proved his medical report (Ext.3). He subsequently gave opinion regarding the possibility of the injury by the axe vide Ext.4. P.W.6 Santosh Kumar Pradhan, who was the A.S.I., of Police, Kamsara outpost is the investigating officer of the case. The prosecution exhibited four documents. Ext.1 is the F.I.R., Ext.2 is the seizure list, Ext.3 is the medical report and Ext.4 is the report of the Medical Officer on the query of the investigating officer. 5. The learned Trial Court held that there is no delay or laches found in the investigation. It was further held that it is proved that the petitioner dealt Tangia blows with the sharp side on the back side of the head of P.W.2 causing simple bleeding injury. The learned Appellate Court held that the abrasion which was found on the backside of the neck corroborates the ocular evidence of P.W.2 and P.W.4 and that the said injury was caused by the blunt side and there is nothing to disbelieve the oral evidence of P.W.2 and P.W.4. It is further held that there is no reason as to why P.W.2 would leave the real assailant and falsely implicate the petitioner. It is further held that there is no reason as to why P.W.2 would leave the real assailant and falsely implicate the petitioner. Lastly, the learned Appellate Court did not find any infirmity in the judgment of the learned Trial Court and accordingly, dismissed the appeal. 6. Mr. Birendra Kumar Nayak, learned counsel appearing for the petitioner contended that there are material contradictions in the evidence of P.W.2 and P.W.4 which have been overlooked by the learned Courts below. He further contended that the ocular testimony is not getting any corroboration from the medical evidence and therefore, it is a fit a case where benefit of doubt should be extended in favour of the petitioner. Mr. Tusar Kumar Mishra, learned Addl. Standing Counsel on the other hand submitted that the doctor has found one incised wound on the person of the injured over the scalp and he has stated that such injury is possible by the seized axe and therefore, in exercise of the revisional jurisdiction, this Court should not interfere with the concurrent findings of the facts of the Courts below. 7. Considering the rival contentions raised at the Bar, there is no doubt that the star witnesses on behalf of the prosecution are none else than the injured P.W.2 Manoj Kumar Sahoo and P.W.4 Sankapani Nag. P.W.2 has stated in his chief examination that when he reached near the tube well, he received a blow on the back side of his head and he fell down and then there were three more blows on his back and he found that the petitioner was holding one blood stained axe at that time who then left the spot. It has been confronted to P.W.2 and proved through the Investigating Officer that P.W.2 has not stated in his 161 Cr.P.C. statement that the petitioner gave blow to him on the back side of the head and also three more blows on the back. The doctor who examined P.W.2 has noticed only one incised wound of size 1½” X ½” X ¼” over the scalp and one abrasion injury of size 1”x 1” over the back of the vertebral column. Both injuries have been opined to be simple in nature and injury no.1 has been opined to have been caused by a weapon of having sharp edge whereas injury no.2 has been opined to have been caused by any blunt object. Both injuries have been opined to be simple in nature and injury no.1 has been opined to have been caused by a weapon of having sharp edge whereas injury no.2 has been opined to have been caused by any blunt object. Though P.W.2, the injured has stated that as many as four blows were given by a sharp cutting weapon like axe, the doctor has found only one incised wound. Therefore, the ocular testimony of P.W.2 is contradicted by the medical evidence. In case of Purshottam -Vrs.-State of Madhya Pradesh reported in A.I.R. 1980 Supreme Court 1873, where the Medical Officer who had performed the post-mortem examination gave clear, irrefutable reasons founded on physical facts noted by him at the autopsy in support of his firm opinion that the only external injury found on the body of the deceased could not be the result of two simultaneous blows, and, in the ordinary course of human events and experience also, it was extremely improbable, that three blows simultaneously given by three different persons from different directions with sharp-edged weapon would land with such precision and exactitude so as to cause a single wound of such clean-cut margins and such dimensions and other characteristics as those of the external wound found by the Medical Officer on the head of the deceased, the version of P.W.1 and P.W.2, the alleged eye-witnesses regarding the injury of the deceased being the result of three separate blows, was held to be inherently improbable and intrinsically incredible and it was further held that it could not be accepted in preference to the evidence of the Medical Expert. 8. Similarly, the other eye witness to the occurrence P.W.4 has stated that four blows were given by the petitioner to P.W.2, out of which the first blow was given with the sharp side of the axe and the rest three blows were by the blunt side of the axe on the back. It has been confronted to P.W.4 and proved through the Investigating Officer (P.W.6) that P.W.4 has not stated in his 161 Cr.P.C. statement to have seen the petitioner coming from behind of P.W.4 and dealing a blow on the head of P.W.2 and then when P.W.2 fell down, the petitioner gave three blows by the blunt side of the axe on the back of P.W.2. Therefore, the material part of the evidence of P.W.4 is also contradicted by his previous statement made before the police so also by medical evidence. On perusal of the evidence of P.W.2 and P.W.4, it cannot be said that they are wholly reliable witnesses. When their evidence in Court is contrary to their previous statements made before police and it is also contradicted by the medical evidence, I am of the view that convicting the petitioner with such evidence would not be proper and justified. Both the Courts below have overlooked the material contradictions in the evidence of P.W.2 and P.W.4 which go to the root of the prosecution. When without taking into consideration the material part of evidence of the witnesses, concurrent findings of facts have been given, in exercise of the revisional jurisdiction, this Court has got ample power to disturb such findings; otherwise it was amount to miscarriage of justice. Therefore, I am of the view that the prosecution has not successfully established the charge under Section 324 of Indian Penal Code against the petitioner. Accordingly, the impugned judgment and order of the learned Courts below are hereby set aside and the petitioner is acquitted of the charge under section 324 of the Indian Penal Code. The petitioner has been released on bail by this Court during pendency of the revision petition. He is discharged from the liability of his bail bonds. His personal bonds and surety bonds stand cancelled. In the result, the revision petition is allowed.