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2017 DIGILAW 194 (ORI)

Gangadhar Karjee v. State of Orissa

2017-02-23

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner Gangadhar Karjee faced trial in the Court of learned Chief Judicial Magistrate -cum-Asst. Sessions Judge, Parlakhemundi in Sessions Case No.27 of 1994 for offences punishable under sections 307/323/294 of the Indian Penal Code and section 27 of the Arms Act. The learned Trial Court vide impugned judgment and order dated 15.07.1995 though acquitted the petitioner of the charges under sections 323/294 of the Indian Penal Code but found him guilty under section 307 of the Indian Penal Code and section 27 of the Arms Act and sentenced him to undergo R.I. for five years with fine of Rs.500/-(rupees five hundred only), in default, to undergo S.I. for six months on each count under section 307 of the Indian Penal Code and section 27 of the Arms Act and the sentences were directed to run concurrently. The petitioner preferred an appeal in the Court of the Session which was heard by the learned Additional Sessions Judge, Parlakhemundi in Criminal Appeal No.7 of 1995 and the learned Appellate Court vide impugned judgment and order dated 06.04.1998 has been pleased to uphold the impugned judgment and order of conviction passed by the learned Trial Court and dismissed the appeal, hence the revision. 2. The prosecution case, as per the First Information Report lodged by Dinabandhu Sahu (P.W.1) before Inspector in Charge, Parlakhemundi Police Station is that the petitioner who was constable no.176 of Orissa State Reserve Police at Parlakhemundi, complained when he was allotted duty at Ullabhadra at the time of roll call on 17.06.1994 at about 8.00 a.m. in presence of the constables and havildars and he further complained as to why he was not allotted duty at Treasury and why Mrutunjaya Behera (P.W.13) was allotted duty at Treasury. When the petitioner abused P.W.13 in obscene words, others who were present there including the informant persuaded him not to behave in such irrational manner but the petitioner did not listen them rather started abusing them. After a little while, he threw away a rice plate on P.W.1 and there the matter was subsided at the intervention of the other constables. It is further stated in the F.I.R. that at about 10.00 p.m. the petitioner came in uniform, collected his gun from the armoury room and after making necessary preparation by inserting cartridges, fired gunshots inside the barrack to kill the informant. It is further stated in the F.I.R. that at about 10.00 p.m. the petitioner came in uniform, collected his gun from the armoury room and after making necessary preparation by inserting cartridges, fired gunshots inside the barrack to kill the informant. The informant took shelter under a cot but the gun shot struck at constable Pitabas Tripathy (P.W.8) on his left chest who fell down shouting “Marigali, Marigalli”. The petitioner stated to have fired five rounds of gun shots and the shots struck at different places in the barracks including the door frames. Then the petitioner left the spot leaving the gun on the verandah of the barrack. On the basis of the First Information Report lodged by P.W.1, Parlakhemundi P.S. Case No. 72 of 1994 was registered under sections 307/323/294 of the Indian Penal Code and section 27 of the Arms Act against the petitioner. P.W.15 S. Ramdas, S.I. of Police attached to Parlakhemundi Police Station, in absence of the Inspector in charge received the report, registered the First Information Report and took up investigation of the case. During course of investigation, P.W.15 examined the witnesses, gave requisitions for examination of the injured (P.W.8), visited the spot and prepared the spot map Ext.8. He also seized one 303 rifle, two empty cartridges, two pieces of lead from the firing of the cartridges under seizure list Ext.2. He arrested the petitioner on 18.06.1994 and forwarded him to Court. He received the injury report from the medical officer. He seized the register of the armoury and roll call register. He also seized one red coloured napkin having five holes from P.W.8 under seizure list Ext.9. He sent 303 rifle, two empty cartridges, two pieces of firing leads and one red coloured napkin to R.F.S.L., Bhubaneswar. He received the sanction order from the District Magistrate and on completion of investigation, on 16.08.1994 he submitted charge sheet under sections 307/323/294 of the Indian Penal Code and section 27 of the Arms Act against the petitioner. 3. He sent 303 rifle, two empty cartridges, two pieces of firing leads and one red coloured napkin to R.F.S.L., Bhubaneswar. He received the sanction order from the District Magistrate and on completion of investigation, on 16.08.1994 he submitted charge sheet under sections 307/323/294 of the Indian Penal Code and section 27 of the Arms Act 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 sections 307/323/294 of the Indian Penal Code and section 27 of the Arms Act on 24.11.1994 and since the petitioner refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. During course of trial, in order to establish its case, the prosecution examined fifteen witnesses. P.W.1 Dinabandhu Sahu was the A.P.R. posted at Parlakhemundi and he is the informant in the case. He specifically stated that the petitioner fired gunshots which struck P.W.8 on his left side chest. P.W.2 Damburu Gouda was cook in the mess of the Police barrack and he stated that on 17.06.1994 at about 10.00 p.m., there was gun firing sound from the barrack side for which he ran away. P.W.3 Ramesh Chandra Bisoyi stated about the seizure of gun (M.O.I), two empty cartridges and two bulb pieces of lead of the bullet by the police as per the seizure list Ext.2. P.W.4 Raghunath Patnaik did not support the prosecution case for which he was declared hostile. P.W.5 Udhaba Behera is the witness to the seizure of command certificate and roll call book which were seized by the police under seizure list Ext.4 and given in his zima under zimanama Ext.5. P.W.6 Kalicharan Gouda stated that on the date of occurrence the petitioner standing on the floor near the verandah of the barrack fired the gun shots which struck to the wooden door frame. He further stated to have heard P.W.8 shouting ‘Marigali Marigali Rakhyakara’ inside the barrack. P.W.7 Dr. Sarat Chandra Mohapatra was attached to District Hospital, Paralakhemundi who examined P.W.1 on police requisition on 18.06.1994 and noticed one bruise which was opined to be simple in nature and the medical report has been marked as Ext.6. He further stated to have heard P.W.8 shouting ‘Marigali Marigali Rakhyakara’ inside the barrack. P.W.7 Dr. Sarat Chandra Mohapatra was attached to District Hospital, Paralakhemundi who examined P.W.1 on police requisition on 18.06.1994 and noticed one bruise which was opined to be simple in nature and the medical report has been marked as Ext.6. P.W.8 Pitabas Tripathy is the injured who stated that the petitioner fired the gun shot which struck on his left side chest down the left collar bone. P.W.9 Dr. Rameswar Prasad Mishra was attached to District Hospital, Paralakhemundi who examined P.W.8 on police requisition and noticed two lacerated wounds i.e. one entry wound and the other exit wound and stated that the injuries are possible by passing of a bullet. He proved his medical report Ext.7. P.W.10 Bhikari Behera stated about the disturbance created by the petitioner at the time of roll call regarding his allotment of duty at Ullabhadra and further stated that the petitioner continuously fired gun shots. P.W.11 Sudhakar Bisoi stated that the petitioner took gun from the coath room and went near the window of the barrack and fired gun shots from there. He further stated that after the second round of firing by the petitioner, P.W.8 shouted ‘Marigali Marigali Rakhyakara’. P.W.12 Kameswar Gouda stated that after the petitioner took the gun, he stood near the window of the barrack and started firing gun shots. P.W.13 Mrutunjaya Behera stated about the disturbance created by the petitioner at the time of roll call protesting against his duty allotment. P.W.14 Chitrasen Samal did not support the prosecution case and he was declared hostile. P.W.15 S. Ramadas was the S.I. of Police attached to Parlakhemundi Police Station and he is the Investigating Officer. The prosecution exhibited eleven documents. Ext.1 is the written report, Exts.2, 3, 4 and 9 are the seizure lists, Ext.5 and 10 are the zimanama, Ext.6 is the medical examination report of P.W.1, Ext.7 is the medical examination report of P.W.8, Ext.8 is the spot map and Ext.11 is the sanction order of District Magistrate. The prosecution also proved four material objects. M.O.I is the gun, M.O.II is the towel, M.O.III is the cartridges and M.O.IV is the two pieces of lead. 5. The defence plea of the petitioner was that due to departmental promotion, there was ill feeling between the parties for which the case has been foisted. 6. The prosecution also proved four material objects. M.O.I is the gun, M.O.II is the towel, M.O.III is the cartridges and M.O.IV is the two pieces of lead. 5. The defence plea of the petitioner was that due to departmental promotion, there was ill feeling between the parties for which the case has been foisted. 6. The learned Trial Court after analyzing the evidence on record has been pleased to hold that in absence of cogent, convincing and acceptable evidence, the offence under sections 294 and 323 of the Indian Penal Code leveled against the petitioner could not be established and accordingly, the petitioner was held not guilty of the aforesaid charges. However, the learned Trial Court held that from the consistent evidence of the prosecution witnesses, it is clearly established that the petitioner came in his uniform, demanded P.W.12 to allot a gun so as to enable him to perform duty at Ullabhadra and after the same was allotted to him, he utilized the same for unlawful purposes by firing five rounds of shots indiscriminately inside the barrack and other different places in that premises and these material evidence of the witnesses has not been shaken in any manner whatsoever in the cross-examination by the defence. The learned Trial Court further held that from the consistent evidence on record coupled with the medical evidence and the seizure of weapon of offence used, the prosecution has clearly established the case against the petitioner under section 307 of the Indian Penal Code read with section 27 of the Arms Act against the petitioner. The learned Trial Court further held that there is absolutely no evidence led by the defence that the petitioner was of unsound mind at the time of alleged occurrence and accordingly the plea of the defence on that score was rejected. The learned Appellate Court has been pleased to hold that on perusal of the evidence of the P.Ws. 1, 2, 6, 8, 10 to 13, it clearly transpires that all the witnesses have given a clear picture with regard to the facts and circumstances of the case, the behavior of the petitioner during roll call and after that, how he took the gun from the coath room and with regard to the indiscriminate firing of the gun. 1, 2, 6, 8, 10 to 13, it clearly transpires that all the witnesses have given a clear picture with regard to the facts and circumstances of the case, the behavior of the petitioner during roll call and after that, how he took the gun from the coath room and with regard to the indiscriminate firing of the gun. It was further held that as regards the commission of offence under section 307 of the Indian Penal Code, the evidence of the eye witnesses is so truthful and cogent that the same cannot be discarded and further the medical evidence corroborates with regard to the injury sustained by P.W.8. The learned Appellate Court further held that the petitioner had got the intention to kill his brother constable with regard to the allotment of duty and nothing else and luckily the bullet first struck the door frame and subsequently struck to P.W.8 and therefore, it was held that there is sufficient evidence to come to a conclusion that the intention of the petitioner was an attempt to kill his brother constable. The learned Appellate Court further held that though the chemical examination report which is available on record has not been marked as exhibit before the Trial Court but it is not in the favour of the accused rather it is in favour of the prosecution and it has been proved that the petitioner was issued with a gun and he was in possession of the gun for his duty which was well proved by the prosecution by exhibiting documentary evidence to that effect. 7. Mr. Satyabrata Panda, learned counsel appearing for the petitioner contended that the impugned judgment and order of conviction passed by the Courts below is against the weight of evidence on record and there is no clinching material to the effect that the injured received gunshot injuries due to the firing by the petitioner and the I.O. has not taken any step for obtaining fingerprint from the gun and there is no documentary evidence that any cartridges were issued in favour of the petitioner. It is further submitted that since the injured had sustained simple injuries as per the evidence of the doctor, the conviction of the petitioner under section 307 of the Indian Penal Code was not proper and justified. It is further submitted that since the injured had sustained simple injuries as per the evidence of the doctor, the conviction of the petitioner under section 307 of the Indian Penal Code was not proper and justified. He further stated that the petitioner was in custody since 18.06.1994 to 19.07.1995 and therefore, even if this Court holds that the petitioner is guilty of such offence, the sentence be reduced to the period already undergone. Mr. Jyoti Prakash Patra, learned Additional Standing Counsel for the State on the other hand contended that not only number of eye witnesses including the injured have categorically stated about the overt act committed by the petitioner prior to the firing of the shot but also at the time of incident. It is further contended that the ocular testimony receives corroboration from the medical evidence and even the chemical examination report which is available on record also goes to show that the cartridges were fired from the gun which were sent for examination of the ballistics expert. It is further contended that in absence of any illegality in the concurrent findings of the facts by the Courts below, it would not be proper to interfere with the same in exercise of the revisional jurisdiction and therefore, the revision petition should be dismissed. 8. Considering the submissions made by the learned counsels for the respective parties and on perusal of the evidence of the doctor (P.W.9), it appears that he examined the injured (P.W.8) on 17.06.1994 at 10.20 p.m. at District Hospital, Paralakhemundi and he found one lacerated wound which is an entry wound 2” below left clavicle 1/2” away from sternocostal notch and it was bleeding and the age of the injury was opined to be within two hours of the examination. He noticed another lacerated wound which was the exit wound, length 2” and situated 3” below the left clavicle 4” away from the left shoulder joint and that injury was also bleeding and the age of injury was opined to be within two hours of the examination. The doctor has specifically stated that both the wounds were connected with a tunnel wound which might have been caused by passing of a bullet and the injuries were simple in nature. The doctor proved his report which is marked as Ext.7. The doctor has specifically stated that both the wounds were connected with a tunnel wound which might have been caused by passing of a bullet and the injuries were simple in nature. The doctor proved his report which is marked as Ext.7. Therefore, it is clear that the injured (P.W.8) has not only sustained gunshot injuries but also the time of infliction of the injuries as per the medical evidence corroborates the prosecution case relating to the time of occurrence. Even from the chemical analysis report which is available on record, it appears that Exhibits EC-1 and EC-2 are two fired empty 303 rifle cartridges which were fired through the 303 rifle which was sent for examination by the Investigating Officer which was confirmed after comparison of the firing pin characteristics of EC1 and EC-2 under comparison microscope with that of test fired cartridge cases where the firing pin characteristics matched. The materials available on record further indicate that the injured (P.W.8) was admitted at Sub-divisional hospital, Parlakhemundi on 17.06.1994 with gunshot injuries and he was discharged on 16.07.1994. The evidence of P.W.8 goes to show that on the date of occurrence at about 10 p.m., while he was arranging his bed, he heard gun firing sound from the barrack side and through the window, he saw the petitioner was loading cartridge in 303 gun (M.O.I) in front of the barrack. He further stated that the bullet fired by the petitioner passed by his side and struck the wall and then the petitioner fired the second shot which struck his left side chest down the left collar bone. He further stated that at that point of time, he was wearing a red gamuchha which became blood stained. P.W.8 further stated that thereafter he heard three more gunshots, out of which one struck on the door of the barrack, the second one on the Armoury room above the door frame and the third one struck to the wall of the quarter of the IIC. Though P.W.8 was cross examined at length, except some minor contradictions, nothing has been brought out to discard his evidence. The presence of P.W.8 at the spot being an injured cannot be doubted and no reason has been assigned as to why P.W.8 would falsely entangle the petitioner in the crime. Though P.W.8 was cross examined at length, except some minor contradictions, nothing has been brought out to discard his evidence. The presence of P.W.8 at the spot being an injured cannot be doubted and no reason has been assigned as to why P.W.8 would falsely entangle the petitioner in the crime. The evidence of P.W.8 is corroborated by none else than the informant (P.W.1) who has categorically stated that when the petitioner fired gunshots, it struck P.W.8 on the left side chest who sat by his side and shouted “Marigali Marigali”. P.W.6 has stated that the petitioner brought one gun from the coath room where arms and ammunitions were kept and he cleaned the same standing on the verandah and thereafter fired gunshots. He stated that the gunshots fired hit at different places and then he heard P.W.8 shouting “Marigali Marigali Rakhya Kara”. P.W.10 has also stated about the gunshots fired by the petitioner and P.W.8 getting injured due to such gunshot for which he was shifted to the hospital. P.W.12 who was attached to the Armoury Section stated that the petitioner came with the command certificate and took a gun from the coath room and then standing near the window of the barrack, he fired gunshots. He has stated that he had not issued the cartridges but he cannot say where from the petitioner got the cartridges. He further stated that at the time of firing of the fourth round, the gun was aimed at him and he concealed near the door frame and the gun shot struck right side above the door frame. 9. I have carefully scrutinized the evidence of the aforesaid eye witnesses which would indicate that except for minor contradictions here and there which are expected when a witness gives evidence after a lapse of time, nothing substantial shaking the substratum of the prosecution case has surfaced to discredit them. It is clear that it is the petitioner who not only created disturbance at the time of roll call protesting the placement of his duty at Ullabhadra but also he took a gun from the Armoury Section and fired gunshots indiscriminately as a result of which the shots stuck at different places and one of such gun shots caused injury on P.W.8. The ocular testimony regarding the receipt of the gunshot injury by P.W.8 is corroborated by medical evidence of P.W.9. The ocular testimony regarding the receipt of the gunshot injury by P.W.8 is corroborated by medical evidence of P.W.9. It further appears that the chemical examination report also corroborates the prosecution case that M.O.I is the weapon of offence which was utilized on the date of occurrence and cartridges were fired from that gun. The materials available on record further indicate that the injured was hospitalized for about a month on account of gunshot injuries. 10. In view of the aforesaid oral and medical evidence and other surrounding circumstances, I am of the view that there is sufficient evidence on record to support the findings recorded by both the Courts below. The mere fact that injuries caused to P.W.8 were opined to be simple in nature would not take the act out of the purview of section 307 of the Indian Penal Code. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause death of the person assaulted. The determinative question is intention or knowledge, as the case may be, and not the nature of injury. The nature of the weapon used, the part of the body of the victim selected for causing the injuries, the intention expressed by the accused at the time of the act are important factors. The petitioner used gun for indiscriminate firing with reckless disregard to the consequences. 11. P.W.8 received gunshot injuries on the chest and he was hospitalized for about a month for such injuries. Therefore, there is no substance in the contention of the learned counsel for the petitioner that the ingredients of offence under section 307 of Indian Penal Code are not made out. Accordingly, I am of the view that the learned Courts below have not committed any illegality in convicting the petitioner under section 307 of the Indian Penal Code as well as section 27 of the Arms Act. 12. Coming to the question of sentence, it appears that the incident in question took place on 17.06.1994 and in the meantime more than twenty two years have passed and the petitioner was in jail custody for about one year and one month. There is no other criminal antecedent against him. The petitioner was a young boy at the time of occurrence. There is no other criminal antecedent against him. The petitioner was a young boy at the time of occurrence. Due to rush of blood protesting his posting, he seems to have committed the overt act. There was no enmity between the petitioner and the injured (P.W.8) prior to the occurrence as stated by P.W.8 and there was no motive for causing injury to P.W.8. Therefore, I am of the view that in order to subserve the ends of justice, the substantive sentence imposed on the petitioner should be reduced to period already undergone. 13. Accordingly, while upholding the conviction of the petitioner under section 307 of the Indian Penal Code and section 27 of the Arms Act, I reduce the substantive sentence to period already undergone. The sentence of fine amount and the default sentence remain unaltered. The fine amount shall be deposited before the learned Trial Court by the petitioner within a month from today failing which the default sentence will follow. 14. With the aforesaid modification in the sentence, the criminal revision petition stands dismissed.