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2017 DIGILAW 177 (ORI)

Brundaban Behera v. State of Orissa

2017-02-16

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner Brundaban Behera faced trial in the Court of learned Chief Judicial Magistrate-cum-Asst. Sessions Judge, Angul in S.T. Case No.181 of 1993 (Trial Case No.64 of 1994) for offences punishable under sections 307 and 324 of Indian Penal Code. The son of the petitioner namely Sidheswar Behera also faced trial along with him and he was charged under sections 307/109 of Indian Penal Code. The learned Trial Court vide impugned order and judgment dated 18.06.1997 acquitted the co-accused Sidheswar Behera of the charge under sections 307/109 of Indian Penal Code and the petitioner was also acquitted of the charge under section 307 of the Indian Penal Code, however, the petitioner was found guilty under sections 326, 324, 323 of the Indian Penal Code and sentenced to undergo R.I. for two years and to pay a fine of Rs.200/-(rupees two hundred only), in default, to undergo further R.I. for two months under section 326 of the Indian Penal Code, R.I. for six months under section 324 of the Indian Penal Code and R.I. for three months under section 323 of Indian Penal Code and sentences were directed to run concurrently. The petitioner preferred an appeal in the Court of Session which was heard by the learned Addl. Sessions Judge, Angul in Criminal Appeal No.02 of 1997/64 of 1997 and the learned Appellate Court vide impugned judgment and order dated 09.04.2001 dismissed the appeal and upheld the impugned judgment and order of conviction passed by the learned Trial Court, hence the revision. 2. The prosecution case, as per the First Information Report submitted by Kirtan Behera (P.W.5) is that, on 19.07.1993 at about 9.00 p.m. when he returned home, he found that the petitioner Brundaban Behera and his son Sidheswar Behera were quarreling with his son Brajendra Behera (P.W.7) in connection with some land dispute. When the informant confronted the accused persons, all on a sudden the petitioner assaulted P.W.7 by means of tangia on his head and hand. The informant rushed to the rescue of his son, but he was also assaulted on his head by means of tangia by the petitioner. When the informant confronted the accused persons, all on a sudden the petitioner assaulted P.W.7 by means of tangia on his head and hand. The informant rushed to the rescue of his son, but he was also assaulted on his head by means of tangia by the petitioner. The informant snatched away the tangia from the hands of the petitioner and at that point of time, the co-accused Sidheswar Behera handed over a lathi to the petitioner and the petitioner dealt two to three lathi blows to the informant for which he fell down on the ground and when the daughter-in-law of the informant namely Suchitra Behera (P.W.1) rushed to the spot, she was also assaulted by means of lathi by the petitioner and thereafter, the accused persons decamped from the spot. On the basis of the First Information Report submitted before the officer in charge, Athamallik Police Station, Athamallik P.S. Case No. 33 of 1993 was registered on 19.07.1993 under sections 341, 323, 324, 307, 34 of the Indian Penal Code. The officer in charge (P.W.9) took up investigation of the case and during course of investigation, he sent the injured persons for medical examination on police requisition and examined the witnesses, visited the spot and seized the weapon of offence i.e. one axe and one lathi so also the wearing apparels of the injured persons and also seized the blood stained earth from the spot and prepared the seizure list, arrested the petitioner and forwarded him to Court on 19.07.1993. He produced the weapon of offence before the Medical Officer, Athamallik P.H.C. for a query and obtained the query report and then he handed over the charge of investigation to Sub-Inspector of Police, Sarat Chandra Tripathy, who on completion of investigation submitted the charge sheet on 19.09.1993 under sections 341, 323, 324, 326, 307, 34 of the Indian Penal Code against the petitioner as well as his son Sidheswar Behera. 3. After submission of charge sheet, the case was committed to the Court of Session after observing due committal procedure where the learned Trial Court framed charges against the accused persons and since the accused persons refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt. 4. During course of trial, in order to establish its case, the prosecution examined nine witnesses. 4. During course of trial, in order to establish its case, the prosecution examined nine witnesses. P.W.1 Suchitra Behera is the daughter-in-law of the informant and she is an injured in the case and she stated about the assault on her father-in-law (P.W.5) and on her husband (P.W.7) and also on her. P.W.2 Sudarsan Naik is a post occurrence witness who stated about the seizure of tangia, lathi, gamucha and dhoti by the police from the house of the accused persons under seizure list Ext.1. He was declared hostile by the prosecution. P.W.3 Sankar Karmi stated that he shifted P.W.7 first to the Athamallik Police Station and then to Athamallik hospital. P.W.4 Sagar Behera is a post occurrence witness who stated about the seizure of the wearing apparels of the accused persons as well as one lathi and blood stained earth and sample earth under seizure list Ext.1. P.W.5 Kirtan Behera is the informant in the case and also an injured and he stated about the assault on his son (P.W.7) as well as assault on him and on P.W.1. P.W.6 Dr. Chandramouli Mishra was the Asst. Surgeon in Sub-Divisional Hospital, Athamallik, who on police requisition examined P.W.1 Suchitra Behera, P.W.5 Kirtan Behera and P.W.7 Brajendra Behera as well as the petitioner and proved their injury reports. He also examined the weapon of offence on being produced by the investigating officer and gave his opinion regarding possibility of the injury on the injured persons by such weapon. P.W.7 Brajendra Behera is the son of the informant and he is an injured the case. P.W.8 Sharat Chandra Tripathy and P.W.9 Utkal Keshari Das were the Officers-in-Charge of Athamallik Police Station who are the investigating officers. The prosecution exhibited seven documents. Exts.1 and 7 are the seizure list, Ext.2 is the F.I.R., Exts.3, 4 and 5 are the injury reports, Ext.6 is the query report. The prosecution also proved four material objects. M.O.I is the gamuchha, M.O.II is the dhoti, M.O.III is the lathi and M.O.IV is the tangia. 5. The defence plea is one of denial and it is stated that due to previous civil dispute, the case has been foisted. Two witnesses were examined on behalf of the defence. D.W.1 Gupteswar Pradhan and D.W.2 Chanchala Behera, the wife of the petitioner stated that due to tussle between the parties on account of land dispute, the petitioner also sustained injuries. 6. Two witnesses were examined on behalf of the defence. D.W.1 Gupteswar Pradhan and D.W.2 Chanchala Behera, the wife of the petitioner stated that due to tussle between the parties on account of land dispute, the petitioner also sustained injuries. 6. The learned Trial Court after analyzing the evidence on record has been pleased to hold that there was no good relationship between the family of the petitioner and the family of P.W.5 due to land dispute prior to the occurrence and on the night of occurrence there was altercation between the petitioner and P.W.5 and P.W.7. The learned Trial Court further held that there was some minor discrepancies and contradictions in the evidence of P.W.1, P.W.5 and P.W.7 in regard to the manner of blows dealt by the petitioner on them but these discrepancies and contradictions are of minor in nature and they are bound to occur as the witnesses are deposing long after the occurrence. The learned Trial Court further held that the evidence of P.W.1, P.W.5 and P.W.7 are convincing and inspire confidence and their evidence is further strengthened by the evidence of P.W.2 to P.W.4 who are post occurrence witnesses. The learned Trial Court rejected the contentions raised by the accused persons regarding delay in lodging the First Information Report. It was further held that the evidence of P.W.1, P.W.5 and P.W.7 gets support from the medical evidence and though the petitioner had received some injuries but those were not on account of blows of P.Ws.5 and 7 and accordingly, the Court was of the further view that the prosecution is not required to explain as to how and under what circumstances, the petitioner received the injuries on his person. The learned Trial Court did not accept of the evidence of the defence witnesses. However the learned Trial Court was of the view that there was no convincing evidence to show that the co-accused Sidheswar Behera instigated the petitioner to assault the injured persons and accordingly, acquitted the co-accused. The learned Trial Court further held that the ingredients of offence under section 307 of the Indian Penal Code are not attracted and accordingly, convicted the petitioner under sections 326, 324, 323 of the Indian Penal Code. The learned Trial Court further held that the ingredients of offence under section 307 of the Indian Penal Code are not attracted and accordingly, convicted the petitioner under sections 326, 324, 323 of the Indian Penal Code. The learned Appellate Court also placed reliance on the evidence of the injured witnesses and the doctor and came to hold that the evidence on record clearly shows that the petitioner voluntarily caused injuries on the injured persons and accordingly, upheld the impugned judgment of the learned Trial Court. 7. Mr. J.R. Dash, learned counsel for the petitioner challenging the impugned judgment and order of conviction contended that the P.W.1 cannot be accepted as an eye witness to the occurrence as she has stated that when she came out of the house to the courtyard, she found P.W.5 and P.W.7 were lying injured there and none was there. He further contended that there are material contradictions in the evidence of P.W.5 and both the Courts below have not considered such material contradictions in its proper prospective. He further contended that the evidence of the injured P.W.7 is not clinching and therefore, the Courts below should have been placed implicit reliance on such testimony. It is further contended that the petitioner had also sustained injuries on his person and the defence plea of the petitioner that he was assaulted by the prosecution party members has not been taken into account properly. He further contended that the petitioner is now aged about more than 65 years and he was in custody during investigation of the case from 19.07.1993 to 13.08.1993 and since there was civil dispute between the parties who are closely related to each other and more than twenty three years have passed in the meantime, even if this Court is not inclined to interfere with the impugned order of conviction, the sentence be reduced to the period already undergone. Mr. Deepak Kumar, learned Addl. Mr. Deepak Kumar, learned Addl. Standing Counsel for the State on the other hand contended that both the Courts have accepted the evidence of three injured witnesses i.e. P.Ws.1, 5 and 7 which get corroboration from the evidence of doctor P.W.6 and there are no such material contradictions in the evidence of the witnesses to discard the same and since there is concurrent finding of the facts by both the Courts below, it is not a fit case to interfere in exercise of the revisional jurisdiction. 8. Considering the submissions made by the learned counsel for the respective parties and on going through the evidence available on record, it appears that the doctor (P.W.6) who examined all the three injured persons has stated that the injury sustained by P.W.1 is an abrasion which is simple in nature. Similarly, the injury sustained by the Kirtan Behera (P.W.5) is also simple in nature. So far as the injured Brajendra Behera (P.W.7) is concerned, he has stated that out of the seven injuries, the injuries nos.4 and 5 are incised wounds which are grievous in nature. P.W.1 who is the daughter-in-law of the informant has stated that the assault was made first on her husband (P.W.7) and then on her father-in-law (P.W.5) by the petitioner by means of a tangia and then subsequently the petitioner assaulted P.W.5 and on her with a lathi. In the cross-examination, P.W.1 has stated that at the time of altercation between the petitioner and her husband (P.W.7), she and her mother-in-law were inside the room and they could not hear the altercation and when she came out to the courtyard, after her husband and father-in-law had fallen down in injured condition, by that time none was there. The statement made in the cross-examination obviously creates doubt regarding the presence of the P.W.1 at the time of actual assault on P.W.5 and P.W.7. The statement made in the cross-examination obviously creates doubt regarding the presence of the P.W.1 at the time of actual assault on P.W.5 and P.W.7. Though P.W.1 herself is an injured and she stated that the petitioner dealt a lathi blow on her right wrist and the doctor has noticed one abrasion on the lower end of the right forearm which has been opined to be simple in nature but in view of her specific statement in the cross-examination, it cannot be accepted that she sustained injury due to assault by the petitioner as it is her specific case that by the time she came out of the house to the courtyard, nobody was there and her husband (P.W.7) and father-in-law (P.W.5) were lying injured. The nature of injury sustained by P.W.1 cannot be a ground to put a stamp of absolute truthfulness on her version and therefore, cannot be acted upon. The other injured P.W.5 who is informant in the case has stated about the assault on his son (P.W.7) by the petitioner with a tangia and then on him. He also further stated that there was further assault by the petitioner with a lathi on him and P.W.1 which was handed over to the petitioner by his son. It has been confronted to P.W.5 and proved through the investigating officer that he has not stated specifically in his statement before the police that the petitioner first gave blows by tangia on its sharp side to the left arm of P.W.7 and one blow on the left side head above the left ear and one blow just above the blow given above the left ear and one on the left eyebrow and another blow to the right index finger causing bleeding injury. Therefore, from the contradictions appearing in the evidence of P.W.5, it is apparent that the witness has not specifically stated about the blows on different parts of the body of P.W.7 but keeping it at par with the medical evidence, he has modulated his statement in Court. If a witness, who has not stated about specific assault, modulates his testimony to keep it at par with the medical evidence, he cannot be said to be a truthful witness. Therefore, I am also not inclined to place any reliance on the evidence of P.W.5. If a witness, who has not stated about specific assault, modulates his testimony to keep it at par with the medical evidence, he cannot be said to be a truthful witness. Therefore, I am also not inclined to place any reliance on the evidence of P.W.5. So far as the injured P.W.7 is concerned, the witness has specifically stated that it is the petitioner who assaulted him by means of a tangia on the left side ear and also on the eyebrows for which he lost sense. The injury report which has been proved by P.W.6 corroborates the version of P.W.7 and two of injuries sustained by P.W.7 are grievous in nature and nothing has been elicited in the cross-examination to discard the evidence of P.W.7 and therefore, in my humble view, even though the evidence of P.W.1 and P.W.5 are no way helpful to the prosecution but in view of the evidence of P.W.7, no fault can be found in the order of conviction of the petitioner under section 326 of the Indian Penal Code which has been imposed by the learned Trial Court for the assault on P.W.7 and confirmed by the learned Appellate Court. Accordingly, the order of conviction of the petitioner under section 326 of the Indian Penal Code is hereby confirmed. The learned Trial Court convicted the petitioner under section 324 of the Indian Penal Code for the assault on P.W.5 and under section 323 of the Indian Penal Code for the assault on P.W.1. P.W.7 has not stated about the assault on P.W.1 and P.W.5. Though P.W.1 and P.W.5 have stated about their assault, since I have disbelieved their evidence, the order of conviction of the petitioner under sections 323 and 324 of the Indian Penal Code is not sustainable in the eye of law and accordingly, the same is hereby set aside. It appears that the petitioner was in custody from 19.07.1993 to 13.08.1993. It is not in dispute that the petitioner and the injured persons are closely related to each other and there was civil dispute between the parties. The occurrence arose due to sudden quarrel between the parties on account of land dispute. In the meantime, more than twenty three years have passed and the petitioner is now aged more than 65 years. The occurrence arose due to sudden quarrel between the parties on account of land dispute. In the meantime, more than twenty three years have passed and the petitioner is now aged more than 65 years. Therefore, I am of the view that no useful purpose would be served in sending the petitioner to custody again. Keeping in view all the facts and circumstances of the case, while confirming the order of conviction passed against the petitioner under section 326 of the Indian Penal Code, the sentence of imprisonment is directed to be reduced to the period already undergone. In the result, the criminal revision is allowed in part. The order of conviction of the petitioner under sections 323 and 324 of the Indian Penal Code is set aside. The order of conviction of the petitioner under section 326 of the Indian Penal Code stands confirmed but the sentence of imprisonment is directed to be reduced to the period already undergone.