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2017 DIGILAW 263 (ORI)

Keshab Bhutia v. State of Orissa

2017-03-10

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. 1. The petitioner in Criminal Revision No. 681 of 2000 namely Sripati Bhutia @ Pati Bhutia and petitioners in Criminal Revision No. 41 of 2001 namely Keshab Bhutia, Ratnakar @ Ratha Bhutia and Anukula Naik faced trial in the Court of learned J.M.F.C., Talcher in G.R. Case No. 403 of 1988 (Trl. No. 248 of 1990) for offences punishable under sections 341/323/326 read with section 34 of the Indian Penal Code on the accusation that on 04.02.1988 at about 4.00 p.m. at Deulapasi Chhaka, they in furtherance of their common intention voluntarily caused grievous hurt to the informant Bhagaban Naik (P.W. 1) after wrongfully restraining him. The learned Trial Court vide impugned judgment and order dated 24.04.1996 found the petitioners guilty of the offences charged and sentenced each of them to undergo S.I. for a period of one month for the offence under section 341 of Indian Penal Code, R.I. for a period of six months for the offence under section 323 of the Indian Penal Code and R.I. for a period of two years for the offence under section 326 of the Indian Penal Code and the sentences were directed to run concurrently. The petitioners preferred an appeal in the Court of Session which was heard by the learned Additional Sessions Judge, Talcher in Criminal Appeal No. 29/79 of 1996/2000 and the learned Appellate Court vide impugned judgment and order dated 14.11.2000 has been pleased to upheld the impugned judgment and order passed by the learned Trial Court and dismissed the criminal appeal, hence the revision. 2. The prosecution case as per the first information report dated 22.09.1988 lodged by Bhagaban Naik (P.W. 1) before the Officer in charge, Talcher Police Station is that on 04.02.1988 at about 4.00 p.m. while he was returning home from South Balanda, at Deulapasi Chhaka, the petitioners and others wrongfully restrained him and assaulted him as a result of which he lost both his eyes. It is stated that some of the witnesses who saw the occurrence intimated at the house of the informant and accordingly, the wife of P.W. 1 came to the spot and took him to the house and thereafter, the matter was reported at the Police Station but the police officers did not take any action. It is stated that some of the witnesses who saw the occurrence intimated at the house of the informant and accordingly, the wife of P.W. 1 came to the spot and took him to the house and thereafter, the matter was reported at the Police Station but the police officers did not take any action. On the basis of the first information report, Talcher P.S. Case No. 95 of 1988 was registered under sections 341/326/34 of the Indian Penal Code against the petitioners and others. During course of investigation, the investigating officer examined the witnesses, visited the spot, consulted the Medical Officer and after completion of investigation submitted charge sheet on 25.11.1988 under sections 341/323/326/34 of the Indian Penal Code. 3. During course of trial, in order to establish its case, the prosecution examined fourteen witnesses. P.W. 1 Bhagaban Naik is the informant in the case and he is also the injured. P.W. 2 Smt. Manjari Naik is the wife of the informant and she is a post occurrence witness who carried the informant to the Sub-divisional Hospital, Talcher and then to District Headquarter Hospital, Dhenkanal where the informant was treated for about a month. P.W. 3 Sudei Naik stated to have seen the informant lying at the spot in an injured condition. P.W. 4 Smt. Nisa Dei is a post occurrence witness who stated to have been noticed injuries on the eyes and legs of the informant and the informant disclosed the names of his assailants before him. P.W. 5 Baikuntha Naik is also a post occurrence witness who stated to have noticed injuries on the eyes and legs of the informant and the informant disclosed the names of his assailants before him. P.W. 6 Kubera Naik is a post occurrence witness who stated to have noticed injures on the eyes and legs of the informant who was lying at the spot and the informant disclosed the names of his assailants before him. P.W. 7 Babaji Naik and P.W. 8 Mahendranath Satapathy did not support the prosecution case. P.Ws. 9, 10, 11 and 13 have not stated anything about the case. P.W. 12 Dr. Sivananda Mohanty was the Asst. Surgeon, Sub-Divisional Hospital, Talcher who on police requisition examined the informant on 04.02.1988 and proved his report Ext. 1. P.W. 14 Dr. P.W. 7 Babaji Naik and P.W. 8 Mahendranath Satapathy did not support the prosecution case. P.Ws. 9, 10, 11 and 13 have not stated anything about the case. P.W. 12 Dr. Sivananda Mohanty was the Asst. Surgeon, Sub-Divisional Hospital, Talcher who on police requisition examined the informant on 04.02.1988 and proved his report Ext. 1. P.W. 14 Dr. Dayasagar Behera was the Eye Specialist attached to District Headquarter Hospital, Dhenkanal who on 06.02.1988 examined the informant and proved his report (Ext. 2) and stated that the injuries made the informant blind. The prosecution exhibited three documents. Ext. 1 is the Injury Report, Ext. 2 is the bed head ticket and Ext. 3 is the opinion of P.W. 14 on the eye injuries of P.W. 1. 4. The defence plea of the accused persons was that due to fall from the date palm (khajuri) plant, the informant (P.W. 1) sustained injuries but due to previous enmity, he has foisted the case. 5. The learned Trial Court on analysis of the evidence on record came to hold that the evidence of the witnesses lend support to the prosecution case that they found injuries on the informant in his eyes and leg and found the accused persons running away from the spot and thus the complicity of the accused persons in the offences has been established by the witnesses. The learned Trial Court further held that the fact that P.W. 1 had sustained injuries on his leg and eyes, found support from the evidence of P.W. 14, the doctor. The learned Trial Court further held that the evidence of P.W. 1 and others coupled with the evidence of P.W. 12 and P.W. 14, the doctors clearly shows that P.W. 1 was assaulted by the accused persons and sustained injuries which caused damage to his eyes and that the prosecution has established its case by clear and cogent evidence that the accused persons are the authors of the offences. The learned Appellate Court also held that the medical evidence substantiated the prosecution story that the injuries to the eyes were man made and not by any accidental fall over any pointed substance like a pin or nail. It was further held that taking into consideration the corroborative evidence of P.Ws. The learned Appellate Court also held that the medical evidence substantiated the prosecution story that the injuries to the eyes were man made and not by any accidental fall over any pointed substance like a pin or nail. It was further held that taking into consideration the corroborative evidence of P.Ws. 1 to 6 and the genuine injury reports, showing the treatment of the injured taken up immediately after the occurrence, unerringly go to establish that the accused persons in furtherance of their common intention had assaulted the injured and damaged his eyes by inserting Khajuri leave. Learned Appellate Court further held that on the sole ground of delay in lodging the F.I.R., a criminal case which is otherwise proved on merit, cannot end in acquittal and delay can be taken note of where the prosecution case is found to be not proved. 6. None appears on behalf of the petitioners to argue the matter. A criminal revision petition, once admitted, cannot be dismissed for default but has to be adjudicated on merits. The Code of Criminal Procedure does not contemplate of making an order of dismissal of revision for default. Once the records of the Courts below are called for, the High Court can exercise its powers under section 401 read with section 397 of Cr.P.C. to examine the correctness, legality or propriety of the order, recorded or passed irrespective of the fact whether the counsel for the petitioner is present or not at the time of call of the matter for final hearing. Therefore, with the assistance of the learned counsel for the State, I went through the records, the evidence led in the case, the impugned judgments and the grounds taken in the revision petition to decide the case on merit. 7. On perusal of the grounds taken in the revision petition, it is found that one ground has been taken that the Station Diary Entry No. 43 dated 04.02.1988, on the basis of which the injury requisition was issued by the police officer for the medical examination of P.W. 1 to Talcher Sub-divisional Hospital has not been proved in the case. On perusal of the grounds taken in the revision petition, it is found that one ground has been taken that the Station Diary Entry No. 43 dated 04.02.1988, on the basis of which the injury requisition was issued by the police officer for the medical examination of P.W. 1 to Talcher Sub-divisional Hospital has not been proved in the case. Another ground has been taken that the incident took place on 04.02.1998 and the F.I.R. was lodged on 13.09.1988 and the delay in filing the F.I.R. has not been explained by the prosecution and therefore, the learned Courts below ought to have viewed the prosecution case with suspicion. Further grounds have been taken that two of the Investigating Officers i.e. S.I. Udhav Behera and S.I. Akhaya Kumar Naik as mentioned in the charge sheet have not been examined by the prosecution and for that reason, material contradictions in the evidence of P.W. 1 and P.W. 6 could not be proved and the defence has been seriously prejudiced for such non-examination. Another ground has been taken that the solitary evidence of the injured P.W. 1 cannot be said to be of unimpeachable character as he was involved in seven to eight cases and therefore, the Courts below should not have relied upon his evidence to convict the petitioners. 8. Mr. Deepak Kumar Pani, learned Additional Standing Counsel while placing the impugned judgments as well as the evidence on record, contended that since there is no perversity or illegality in the impugned judgments and the evidence of the injured eye witness gets corroboration from the medical evidence, in exercise of the revisional jurisdiction, this Court should not disturb the concurrent findings of facts. 9. 9. Coming to the evidence of the star witness of the prosecution i.e. P.W. 1 Bhagaban Naik, it appears that he has stated that the petitioners and others stopped him holding the handle of his cycle while he was returning from Jagannath Colliery and all of them pressed him on the ground and accused Droupadi Naik assaulted him on the right leg by means of tangia on its blunt side causing fracture injury and thereafter, Baga Bhutia, Banamali Bhutia and Ratana Bhutia (petitioner) pressed Khajuri leave on its pointed side in both of his eyes causing damage to both the eyes and then accused Anukula Naik (petitioner) assaulted him on the left forehead over the left eye with the blunt side of an axe causing injury for which he lost his sense. P.W. 1 has been cross-examined at length but his evidence has remained unshaken. Though a suggestion has been given to P.W. 1 that due to fall from the date palm (khajuri) plant, he sustained injury on his knee and due to pressing of the khajuri leaves on his eyes, he sustained injuries on both his eyes but the doctors have not been put with any such questions by the defence regarding possibilities of injuries on P.W. 1 in that manner. No doubt P.W. 1 has stated that before the occurrence, he was involved in seven to eight cases which the police initiated against him but that cannot be a ground to discard his entire testimony rather his evidence has to be scrutinised with care and caution. P.W. 12 Dr. Sibananda Mohanty who examined P.W. 1 on the date of occurrence i.e. on 04.02.1988 at Sub-divisional Hospital, Talcher noticed contusion on the knee and multiple abrasions on the right leg and abrasion on the cornea of both the eyes and he reserved the opinion regarding the nature of eye injuries and referred P.W. 1 to the eye specialist. P.W. 14 is the eye specialist who on examination of both the eyes of P.W. 1 stated that he examined the injured on 06.02.1988 and the injured was admitted as an indoor patient on 07.02.1988 and he was discharged on 01.03.1988 and the injuries made him blind. Therefore, the ocular testimony of P.W. 1 that some of the accused persons including petitioners Ratnakar Bhutia and Anukula Naik assaulted him finds corroboration from the medical evidence. Therefore, the ocular testimony of P.W. 1 that some of the accused persons including petitioners Ratnakar Bhutia and Anukula Naik assaulted him finds corroboration from the medical evidence. P.W. 1 has specifically stated that he reported the matter before Thana Babu on 05.02.1988 i.e. on the next day of the occurrence but the police did not take any action due to previous warrant and different cases against him and he further stated that he could not say the contents of the F.I.R. written by another accused in Talcher jail as per his direction, as he was already blind by that time and the F.I.R. was forwarded to S.D.P.O. by the Jail Superintendent. Considering the facts situation of the case as well as the evidence of P.W. 1 coupled with the medical evidence, I am of the view that since the initial report given by P.W. 1 before police on the next day of the occurrence was not acted upon due to previous criminal background of P.W. 1, the registration of the first information report at a belated stage on the basis of a subsequent written report from jail cannot be a ground to throw away the entire prosecution case. It seems that in connection with the occurrence, on the very day of occurrence, station diary entry No. 43 dated 04.02.1988 was made and P.W. 1 was sent for medical examination to Sub-Divisional Hospital, Talcher on police requisition where he was examined by P.W. 12. 10. Now coming to the complicity of the petitioners, as has already been discussed, there is consistent evidence against the petitioners Ratnakar @ Ratha Bhutia and Anukula Naik that they wrongfully restrained the informant while he was coming on his cycle and assaulted him on his eyes as a result of which the informant became blind and therefore, the judgment and order of conviction of these two petitioners by the learned Trial Court for the offences under sections 341 and 326 of the Indian Penal Code which was confirmed by the learned Appellate Court cannot be interfered with. However, for causing the self same injuries to P.W. 1 which are grievous in nature, the two petitioners cannot be convicted also under section 323 of the Indian Penal Code in addition to section 326 of the Indian Penal Code and therefore, the order of conviction under section 323 of the Indian Penal Code is set aside. However, for causing the self same injuries to P.W. 1 which are grievous in nature, the two petitioners cannot be convicted also under section 323 of the Indian Penal Code in addition to section 326 of the Indian Penal Code and therefore, the order of conviction under section 323 of the Indian Penal Code is set aside. So far as petitioners Keshab Bhutia and Sripati @ Pati Bhutia are concerned, the evidence of P.W. 1 is omnibus in nature and no specific overt act has been attributed against any of them and therefore, it is very much risky to convict those petitioners of the offences charged and accordingly, I am inclined to give benefit of doubt to the petitioners Keshab Bhutia and Sripati @ Pati Bhutia and they are acquitted of all the charges. 11. Accordingly, the Criminal Revision No. 681 of 2000 is allowed. The impugned judgment and order of conviction of the petitioner Sripati @ Pati Bhutia under sections 326/323/341 of the Indian Penal Code is set aside and he is acquitted of all the charges. So far as Criminal Revision No. 41 of 2001 is concerned, the impugned judgment and order of conviction of the petitioner Keshab Bhutia under sections 326/323/341 of the Indian Penal Code is set aside and he is acquitted of all the charges. So far as petitioners Ratnakar @ Ratha Bhutia and Anukula Naik are concerned, the revision petition is partly allowed. They are acquitted of the charge under section 323 of the Indian Penal Code but their order of conviction under sections 326 and 341 of the Indian Penal Code and the sentence passed thereunder stands confirmed. It appears that the petitioners Ratnakar @ Ratha Bhutia and Anukula Naik are on bail by virtue of the order of this Court dated 16.02.2001 passed in Misc. Case No. 50 of 2001. They are directed to surrender before the learned Trial Court within a period of two weeks from today to serve the sentence imposed on them failing which the learned Trial Court is at liberty to take appropriate steps for their arrest. In the result, Criminal Revision No. 681 of 2000 is allowed and Criminal Revision No. 41 of 2001 is allowed in part.