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2017 DIGILAW 175 (ORI)

Kartika Mahanandia v. State of Orissa

2017-02-16

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner Kartika Mahanandia faced trial in the Court of learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Jeypore in Sessions Case No.08 of 1997 for offences punishable under section 392 read with section 397 of the Indian Penal Code on the accusation that on 01.10.1996 at about 4.00 p.m. he committed theft of four nos. of cigarettes at village Mathalput Bazar and in committing such theft, voluntarily caused grievous hurt to B. Dillaswar Rao (P.W.2) by means of a glass jar. The learned Trial Court vide impugned judgment and order dated 07.03.1998 found the petitioner guilty under section 392 read with section 397 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years. The petitioner preferred an appeal in the Court of learned Sessions Judge, Koraput, Jeypore in Criminal Appeal No.32 of 1998 and the learned Appellate Court vide impugned judgment and order dated 10.04.2001 upheld the impugned judgment of the Trial Court and dismissed the appeal, hence the revision. 2. The prosecution case, as per the first information report submitted by Judhistir Sahu (P.W.1) before the Inspector in Charge, Damanjodi Police Station is that P.W.2 had come to the house of the informant as a guest and on 01.10.1996 the informant had been to attend some other work leaving P.W.2 at his betel shop situated at Mathalput Bazar. At that point of time, the petitioner came there and asked P.W.2 for cigarettes. P.W.2 refused to give cigarettes as the owner of the betel shop was not available. The petitioner forcibly took four cigarettes and picked up a glass jar from the shop and dashed it on the face of P.W.2 for which one tooth of P.W.2 was broken. On the basis of such first information report, Damanjodi P.S. Case No.39 of 1996 was registered on 01.10.1996 under section 397 of the Indian Penal Code and the Inspector in Charge himself took up investigation of the case. He examined the witnesses, sent the injured (P.W.2) to Mathalput PHC for his medical examination on police requisition. He visited the spot, seized blood stained shirt of P.W.2, pieces of broken glass jar and a piece of tooth under seizure list Ext.2. He examined the witnesses, sent the injured (P.W.2) to Mathalput PHC for his medical examination on police requisition. He visited the spot, seized blood stained shirt of P.W.2, pieces of broken glass jar and a piece of tooth under seizure list Ext.2. On 02.10.1996 the I.O. arrested the petitioner and forwarded him to Court and on completion of investigation, he submitted charge sheet on 28.10.1996 under section 397 of the Indian Penal Code against the petitioner. 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure, where the learned Trial Court charged the petitioner under section 392 read with section 397 of the Indian Penal Code and since the petitioner refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to establish his guilt. 4. In order to prove its case, the prosecution examined eight witnesses. P.W.1 Judhistir Sahu, is the informant who is a post-occurrence witness. P.W.2 B. Dilleswar Rao is the injured who has stated about the occurrence. P.W.3 Damburudhar Jena is a witness to the seizure of glass jar and the broken tooth and blood stained shirt under seizure list Ext.2. P.W.4 Bhagaban Jena is a post-occurrence witness. P.W.5 Baidyanath Mali stated that P.W.2 told him that the petitioner assaulted him with a glass bottle. P.W.6 Biswanath Sahu is a post occurrence witness. P.W.7 Suresh Kumar Panda who was the Inspector in charge of Damanjodi Police Station is the investigating officer. P.W.8 Dr. Basanta Manjari Swain is the Medical Officer attached to Mathalput P.H.C. who examined P.W.2 on police requisition and proved the medical report vide Ext.4 The prosecution exhibited four documents. Ext.1 is the first information report, Ext.2 is the seizure list, Ext.3 is the medical requisition and Ext.4 is the injury report of P.W.2. The prosecution also proved three material objects. M.O.I is the blood stained shirt, M.O.II is the broken pieces of glass jar and M.O.III is the broken tooth. 5. The defence plea is one of denial. It is pleaded that due to previous enmity, the case has been foisted. 6. The learned Trial Court relying mainly on the evidence of the injured (P.W.2) and doctor (P.W.8) came to hold that the petitioner assaulted P.W.2 with a glass jar causing bleeding injury on his upper lip and broke a tooth. The defence plea is one of denial. It is pleaded that due to previous enmity, the case has been foisted. 6. The learned Trial Court relying mainly on the evidence of the injured (P.W.2) and doctor (P.W.8) came to hold that the petitioner assaulted P.W.2 with a glass jar causing bleeding injury on his upper lip and broke a tooth. The learned Appellate Court also relied upon the statements of the aforesaid witnesses and upheld the impugned judgment and order of conviction passed by the learned Trial Court. 7. The learned counsel for the petitioner, Mr. Maitrijit Mohanty contended that the learned Courts below should not have placed implicit reliance on the solitary testimony of P.W.2 which is not clinching, trustworthy and above board and full of material contradictions. Learned counsel for the State Mr. Deepak Kumar on the other hand contended that the evidence of the injured P.W.2 is corroborated by the medical evidence and therefore, the learned Trial Court as well as the Appellate Court have not committed any illegality in placing reliance upon such evidence and accordingly, the concurrent findings of the facts of the Courts should not be disturbed in exercise of revisional jurisdiction. 8. Adverting to the nature of injuries sustained by the injured, P.W.8 Dr. Basanta Manjari Swain who was the Medical Officer, P.H.C., Mathalput stated that she examined P.W.2 on 01.10.1996 on police requisition and found the following injuries:- (i) Fracture of upper lateral incisor, i.e. tooth on the right side, (ii) An abrasion of size ½” x ¼” in the middle of the upper lip. Injury No.(i) was opined to be grievous in nature and injury No.(ii) was simple in nature and the injuries were opined to have been caused by hard and blunt object. The age of the injuries was about one to two hours at the time of examination which was done at 4.30 p.m. She proved the injury report vide Ext.4. Though in the chief examination, the doctor stated that she examined P.W.2 on police requisition but in the cross-examination, she stated that at the time she treated the injured, she had not received police requisition. The investigating officer stated that after the F.I.R. was lodged, he sent the injured to Mathalput P.H.C. for the medical examination under police requisition Ext.3. Though in the chief examination, the doctor stated that she examined P.W.2 on police requisition but in the cross-examination, she stated that at the time she treated the injured, she had not received police requisition. The investigating officer stated that after the F.I.R. was lodged, he sent the injured to Mathalput P.H.C. for the medical examination under police requisition Ext.3. Though there appears to be some discrepancies in the evidence of P.Ws.7 and 8 as to whether the injured was first treated in the P.H.C. and then the police requisition was sent or he was examined on police requisition but such discrepancies are not very much material to adjudicate the issue involved in the case. 9. There is no dispute that the entire accusation against the petitioner revolves around the acceptability or otherwise of the evidence of P.W.2 B. Dilleswar Rao, the injured in the case. P.W.2 in his chief examination has stated that when he was in the shop of P.W.1, at that time the petitioner came and demanded cigarettes on credit but he refused to give him the cigarettes on credit for which he lifted a glass bottle kept in the betel shop and assaulted him for which his front tooth was broken and there was profuse bleeding from his mouth and his shirt was stained with blood and then the petitioner forcibly took four cigarettes without paying the price. In the cross examination, P.W.2 however stated that the petitioner came and asked him to give cigarettes and he handed over four Capstan cigarettes and while the petitioner was going away without paying the price, he asked him to pay the price of the cigarettes and caught hold of his hand and when he pulled his hand, P.W.2 left his hand and thereafter asked him to pay the price or to return the cigarettes. All on a sudden, the petitioner picked up a glass bottle and assaulted him. If the chief examination and the cross examination of P.W.2 are read together, it appears that there are material contradictions in the same. All on a sudden, the petitioner picked up a glass bottle and assaulted him. If the chief examination and the cross examination of P.W.2 are read together, it appears that there are material contradictions in the same. In the chief examination, it is stated by P.W.2 that first the assault was made and then the petitioner forcibly took four cigarettes whereas in the cross examination, it is stated that P.W.2 first gave cigarettes to the petitioner when he asked for the same and subsequently when the petitioner was going away from the betel shop, P.W.2 asked for payment of the price of the cigarettes and also caught hold of the hand and then the assault was made with a glass bottle. Similarly whereas in the chief examination, it is stated that the petitioner forcibly took the cigarettes, in the cross examination, it is stated that P.W.2 gave cigarettes to the petitioner when it was asked for. P.W.2 stated that he had previous acquaintance with the petitioner and on many occasion, the petitioner was coming to the shop and taking articles on payment. P.W.5 though in the chief examination stated that P.W.2 told him that the petitioner assaulted him with a glass bottle but in the cross-examination, he has stated that he did not ascertain anything from P.W.2 and P.W.2 also did not tell him anything. Therefore, the evidence of P.W.5 is no way helpful to the prosecution. The other witnesses examined by the prosecution have not stated about the actual incident of assault and they are all post occurrence witnesses. Law is well settled that in order to base a conviction on the testimony of a solitary witness, the evidence must be absolutely reliable, clinching, trust-worthy and above board. Since P.W.2 is the solitary witness and his evidence suffers from material contradictions, it is very difficult to place implicit reliance on his testimony. Moreover, in view of the definition of robbery, it is not sufficient that in the transaction of committing theft, ‘hurt’ has been caused. The ‘hurt’ caused by the offender must be with the object of facilitating the commission of theft or while the offender was committing theft or attempting to carry away the property obtained by theft. Moreover, in view of the definition of robbery, it is not sufficient that in the transaction of committing theft, ‘hurt’ has been caused. The ‘hurt’ caused by the offender must be with the object of facilitating the commission of theft or while the offender was committing theft or attempting to carry away the property obtained by theft. The assault was not made to P.W.2 as per his cross-examination by the petitioner for the purpose of taking away the cigarettes but when during hitch between the two, the petitioner did not pay the price of cigarettes. Therefore, I am of the view that the learned Courts below were not justified in placing reliance on the testimony at P.W.2 to come to a finding that the petitioner committed an offence of robbery and caused grievous hurt at the time of committing robbery. In view of the above discussion, I am of the view that the impugned judgment and order of conviction passed by the learned Courts below are not sustainable in the eye of law. Accordingly, the revision petition is allowed. The impugned judgment and order of conviction of the petitioner under section 392 read with section 397 of the Indian Penal Code and the sentence passed there under is hereby set aside. The petitioner is on bail by virtue of the order of this Court. He is discharged from the liability of his bail bond. The personal bond and surety bond stand cancelled.