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2016 DIGILAW 1148 (ORI)

Pareswar Majhi v. State of Orissa

2016-11-23

SATRUGHANA PUJAHARI

body2016
JUDGMENT S.PUJAHARI, J. - The appellants herein call in question the judgment of conviction and order of sentence passed against them in Sessions Case No.9/8 of 1991 on the file of the Addl. Sessions Judge, Titilagarh. The learned trial Court vide the impugned judgment and order held the appellant (hereinafter referred to as “the accused persons”) guilty of the charge under Sections 294, 332, 452, 307 read with Section 34 of the Indian Penal Code, 1860 (for short “the I.P.C.”) and sentenced each of them to undergo R.I. for five years and to pay a fine of Rs.100/-, in default, to undergo R.I. for one month more under Section 307 read with Section 34 of I.P.C., R.I. for one year under Section 332 read with Section 34 of I.P.C., R.I. for one year and to pay a fine of Rs.100/-, in default, to undergo R.I. for one month more under Section 452 read with Section 34 of I.P.C. 2. Prosecution placed a case before the trial Court that the informant, namely, Durjodhan Sabar (P.W.3) while working as Forest Guard of Budibahal Forest Beat, booked the accused persons, namely, Pareswar Majhi, Khanjhi Majhi and Puda Majhi in a case under a forest offence as they were smuggling of teak logs unauthorisedly from Raju Reserve Forest. For that, the accused – Pareswar Majhi bore grudge against him. On 02.01.1991 at about 8 p.m., the accused – Pareswar Majhi along with other three accused persons assembled before the house where the informant (P.W.3) was residing with his wife and children and directed him to come out. When the informant did not come out from the house, the accused persons surged into his house and physically carried him to the village road in front of his house and brutally assaulted him by means of lathi. To save himself, the injured-informant (P.W.3) (hereinafter referred to as “P.W.3”) ran away from the spot to the nearby threshing floor of one Somanath Meher where he hide himself under a straw heap. Thereafter, the accused persons left the spot and the P.W.3 came back to his house and immediately disclosed the incident before Somanath Meher, Bhaja Meher and before one Rana. The matter was also intimated to the Forester of Tureikela whereafter the Forester of Tureikela and Tureikela police arrived at the house of the P.W.3 who reported the matter orally. Thereafter, the accused persons left the spot and the P.W.3 came back to his house and immediately disclosed the incident before Somanath Meher, Bhaja Meher and before one Rana. The matter was also intimated to the Forester of Tureikela whereafter the Forester of Tureikela and Tureikela police arrived at the house of the P.W.3 who reported the matter orally. The police immediately reduced the oral information into writing, read over and explained its contents to P.W.3. Pursuant to the same, the Tureikela P.S. Case No.1 of 1991 was registered and investigation was taken up. In course of investigation, the police collected incriminating materials indicating the complicity of the accused persons with the aforesaid offences. After taking cognizance, the learned J.M.F.C., Kantabanjhi committed the case to the Court of Session. The trial Court framed charge against the accused persons for the aforesaid offences on the basis of the materials placed on record. The accused persons pleaded not guilty to the charge. The prosecution, as such, examined seven witnesses and also exhibited documents and Material Objects in support of charge. In their defence the accused persons did not choose to adduce any evidence. The trial Court placing absolute reliance on the evidence returned the impugned judgment of conviction and order of sentence as stated earlier. 3. Mr. A. Tripathy, the learned Amicus Curiae, appearing for the accused persons submits that since in this case there is gross discrepancy in the version of the P.W.3, his wife (P.W.4) and socalled material witnesses, and when some material witnesses were withheld, the trial Court has erred in placing reliance on such tainted version. Alternatively, it is also submitted by the learned Amicus Curiae that even if it is accepted for a moment that the prosecution case is true, but still the factual matrix is not sufficient and adequate to fasten the accused persons with the offence under Section 307 read with Section 34 of I.P.C. Consequently, the learned Amicus Curiae would submit that no ingredient of the offence under Section 307 of I.P.C. is attracted. 4. Per contra, the learned counsel for the State would contend that since the evidence of the P.W.3 is clear and cogent and is corroborated in material particulars by other witnesses, the impugned judgment of conviction does not call for second opinion. 4. Per contra, the learned counsel for the State would contend that since the evidence of the P.W.3 is clear and cogent and is corroborated in material particulars by other witnesses, the impugned judgment of conviction does not call for second opinion. Furthermore, it is also submitted that the sentence imposed being commensurate to the facts and circumstances, the same also needs no interference in exercise of appellate jurisdiction. 5. On scrutiny of the entire evidence placed on record, particularly the evidence of P.W.3, it would go to show that the P.W.3 on 02.01.1991 had booked a case in the name of accused – Pareswar Majhi and few others for smuggling of teak logs. On 02.01.1991 at about 8 p.m. the accused – Pareswar Majhi accompanied by others gathered in front of the house of P.W.3 and directed him to come out. When apprehending danger to the life, P.W.3 did not venture to come out, the accused persons entered into his house and physically lifted him to the village road and assaulted him by lathi. P.W.3 has categorically stated that at the outset the accused – Gadadhar Majhi dealt a ‘Thenga’ blow on his head, thereafter accused – Pareswar Majhi also dealt ‘Thenga’ blow on his right eye-brow and accused – Jati Majhi also dealt ‘Thenga’ blow on his left leg. To save his life, P.W.3 ran away from the scene of occurrence to the threshing floor of one Somanath Meher (not examined by the prosecution) where he concealed himself under a straw heap. The aforesaid version of P.W.3 gets ample corroboration to the Offence Report (Ext.5) launched against the accused – Pareswar Majhi for smuggling of the teak logs from the forest as well as from the F.I.R. given by him before the police orally which has been proved as Ext.6. The multiple injuries said to have been sustained by P.W.3 on the head, left eye-brow, right eye and left leg find mentioned in Ext.8. Nothing has been brought on record to discard the version of P.W.3 duly corroborated by medical evidence of P.W.5, the doctor and his report (Ext.1). No material has been elicited to show that P.W.3 had any previous animosity with the accused persons and hence any axe to grind to falsely implicate the accused persons. The version of P.W.3 is above reproach. No material has been elicited to show that P.W.3 had any previous animosity with the accused persons and hence any axe to grind to falsely implicate the accused persons. The version of P.W.3 is above reproach. It is well settled law that evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statement are not to be discarded. [See: 2003 (6) Supreme 2002 (State of Madhya Pradesh vrs. Mansing and others)]. The evidence of P.W.4, the wife of the P.W.3 also lends absolute assurance to such testimony. She is a material witness to the occurrence. Only because she is related to injured witness being the wife that does not make her evidence unworthy of credence when otherwise is proved to be reliable and trustworthy. Here, the defence plea that the presence of P.W.4 in the house at the relevant time has not been indicated in the F.I.R., her version is afterthought has no substance. She being the wife of P.W.3 her presence in the house is but normal. The evidence of Forester of Tureikela Section (P.W.1) corroborates such version of P.W.3 that he had been to the spot getting the news from one Linga Meher along with ASI of Police before whom the aforesaid incident was narrated by the P.W.3 which is corroborated by the version of P.W.4. Lingaraj Meher (P.W.6) in his evidence also stated that after getting the aforesaid news, he in his Jeep being driven by their driver went to Tureikela and intimated the aforesaid fact to the Forester (P.W.1) and Tureikela Police. When the aforesaid evidence brought on record categorically proves that the accused persons came in a body and assaulted the P.W.3 for the reasons that he earlier booked the accused – Pareswar Majhi in a forest case, their version has a ring of truth. Thus, when this Court is of the considered opinion that evidence of P.W.3 is above reproach and when such evidence of P.W.3 is duly corroborated from the medical evidence of P.W.5 as well as from the post occurrence witness, viz., P.W.1, the then Forester and P.W.6, an independent witness of that locality, absolute reliance can be placed on the evidence of such witnesses. The evidence of P.W.1 is also admissible under Section 6 of the Indian Evidence Act, P.W.3 having divulged the occurrence before him without any delay within a reasonable period. The evidence of P.W.1 is also admissible under Section 6 of the Indian Evidence Act, P.W.3 having divulged the occurrence before him without any delay within a reasonable period. He has given a vivid description of the occurrence brought to his notice by P.W.4. P.W.7, the Investigating Officer of the case, has proved the report reduced into writing by him on 02.01.1991 at 9 p.m. when P.W.3 appeared before him and narrated the incident where he was assaulted by the accused persons. This Investigating Officer having noticed injuries on the person of P.W.3 had issued injury requisition (Ext.8/1) and sent him to the Medical Officer of Tureikela P.H.C. Nothing being elicited from such set of evidence adduced on behalf of the prosecution and when the evidence of injured witness is corroborated from material particulars by the evidence of other witnesses, the defence version of false implication is indefensible. The aforesaid act of the accused persons clearly attracts the offences under Sections 294, 452, 332 read with Section 34 of IPC. So far as offence under Section 307 read with Section 34 of IPC is concerned, as it appears from the materials on record, it can never be said that the accused persons intending to cause death of the P.W.3 assaulted him or cause brutal injury which otherwise could have caused the death of the P.W.3. Of course, injuries sustained are simple in nature and sit of injuries were not on vital part of the body though the P.W.3 was assaulted by means of ‘Thenga’. The alleged ‘Thenga’ was neither seized nor produced to show its nature. Considering the aforesaid, the conviction of the accused persons under Section 307 read with Section 34 of IPC is unsustainable as contended. 6. Consequently, for the reasons aforesaid, this Court concur with the finding of guilt of the accused persons under Sections, 294, 452 and 332 read with Section 34 of I.P.C. as recorded by the learned trial Court. The sentence imposed under Sections 452 and 332 of I.P.C. needs no interference by this Court. However, for the reasons recorded, this Court is of the view that the conviction of the accused persons under Section 307 read with Section 34 of I.P.C. is not sustainable either in law or in fact. Accordingly, all the accused persons are acquitted of the charge under Section 307 read with Section 34 of I.P.C. 7. However, for the reasons recorded, this Court is of the view that the conviction of the accused persons under Section 307 read with Section 34 of I.P.C. is not sustainable either in law or in fact. Accordingly, all the accused persons are acquitted of the charge under Section 307 read with Section 34 of I.P.C. 7. In the result, this criminal appeal is allowed in part. However, the High Court Legal Services Committee shall pay an amount of Rs.2000/- (rupees two thousand) to Mr. A. Tripathy, Advocate who has assisted this Court being appointed as an Amicus Curiae in disposal of this criminal appeal. L.C.R. received be sent back forthwith along with a copy of this Judgment. Appeal allowed in part.