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2017 DIGILAW 314 (ORI)

Rama Chandra Moharana v. State of Orissa

2017-03-22

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner Rama Chandra Moharana along with co-accused Ajaya Maharana faced trial in the Court of learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Khurda, Camp-Bhubaneswar in S.T. Case No.227/47/341 of 1997/96 for offence punishable under section 307 read with section 34 of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 03.11.1998 found the petitioner and the co-accused guilty under section 307 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for five years. The petitioner preferred Criminal Appeal No.53 of 1998 in the Court of learned Sessions Judge, Khurda at Bhubaneswar and the learned Appellate Court vide impugned judgment and order dated 31.03.2001 altered the conviction to section 326 read with section 34 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for three years, hence the revision. 2. The prosecution case as per the First Information Report lodged by Dibakar Rout before the officer in charge of Balianta Police Station is that on 23.3.1995 at about 6.00 p.m. while the younger son of the informant Pramod Kumar Rout (P.W.10) was returning home along with his niece in a scooter, near Badapokhari of the village, the petitioner along with co-accused Aju @ Ajaya Maharana wrongfully restrained him being armed with sword and bhujali. When P.W.10 stopped the scooter, co-accused Aju caught hold of P.W.10 from his back and the petitioner assaulted P.W.10. Hearing cries of P.W.10 and also his niece, the passer-by arrived at the spot for which the accused persons fled away. P.W.10 was lying on the spot in an unconscious manner with bleeding injuries. He was shifted to Balkati Hospital and then to S.C.B. Medical College and Hospital, Cuttack for treatment. The informant indicated in his First Information Report that number of persons who were present at the spot including Bipin Samal (P.W.2) and Madan Sethi (P.W.1) had seen the occurrence and as a result of the assault, P.W.10 sustained injuries on his head, hands and nose. It is further stated in the First Information Report that P.W.10 was in love with the sister of the petitioner and they had decided to marry each other but the petitioner and his family members were very much against such decision and accordingly, in a pre-planned manner to kill P.W.10, they committed the crime. It is further stated in the First Information Report that P.W.10 was in love with the sister of the petitioner and they had decided to marry each other but the petitioner and his family members were very much against such decision and accordingly, in a pre-planned manner to kill P.W.10, they committed the crime. It is stated in the First Information Report that the condition of P.W.10 who was hospitalized was alarming. On receipt of such First Information Report, Balianta P.S. Case No. 37 of 1995 was registered under section 307/34 of the Indian Penal Code. P.W.9 Rama Chandra Dwivedi who was posted as A.S.I. of Police at Balakati out post took up investigation of the case on being directed by the officer in charge of Balianta Police Station. During course of investigation, he examined the witnesses and injured Pramod Kumar Rout (P.W.10), visited the spot, seized the sword and wearing apparels of the accused persons, two chappals of P.W.10, some blood stained earth and sample earth and also the Bajaj Scooter of P.W.10 and then he handed over the charge of investigation to A.S.I. of Police Narasingh Bhol (P.W.6) who on completion of investigation submitted charge sheet. 3. After observing due committal formalities, the case of the petitioner was committed to the Court of Session for trial where the learned Trial Court framed charge against the petitioner under sections 307/34 of the Indian Penal Code on 25.09.1996 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. The defence plea of the petitioner is that P.W.10 while coming in the scooter dashed against the culvert for which he sustained injuries but falsely implicated him in the crime. 5. During course of trial, in order to prove its case, the prosecution examined 10 witnesses. P.W.1 Madan Sethi and P.W.2 Bipini Samal did not support the prosecution case for which they were declared hostile. P.W.3 Bibhuti Bhusan Rath on examination of the Bajaj Super Scooter and other articles noticed blood stains on those articles and he advised the Investigating Officer to send exhibits to the Director, State F.S.L., Rasulgarh for examination. P.W.4 Prakash Rout is a witness to the occurrence who stated that after the assault, the injured was taken to the hospitals. P.W.3 Bibhuti Bhusan Rath on examination of the Bajaj Super Scooter and other articles noticed blood stains on those articles and he advised the Investigating Officer to send exhibits to the Director, State F.S.L., Rasulgarh for examination. P.W.4 Prakash Rout is a witness to the occurrence who stated that after the assault, the injured was taken to the hospitals. P.W.5 Kartik Rout is a post-occurrence witness who noticed injuries on the person of P.W.10. P.W.6 Narsingh Bhol was the A.S.I. of Police who is the Investigating Officer of the case. P.W.7 Prasana Kumar Rout stated that the injured was shifted to the hospital for treatment. P.W.8 Dr. Bibhuti Bhusan Nanda was the Medical Officer attached to S.C.B. Medical College and Hospital, Cuttack who examined P.W.10 and proved his report Ext.2. P.W.9 Ram Chandra Dwivedi was the A.S.I. of police attached to Balakati outpost who is also the Investigating Officer. P.W.10 Pramod Kumar Rout is the injured. The prosecution exhibited two documents. Ext.1 is the report of the Scientific Officer and Ext.2 is the medical report. The defence examined eight witnesses. All the defence witnesses stated that P.W.10 sustained injuries due to fall from the scooter. 6. The learned Trial Court analyzing the evidence on record has been pleased to hold that the evidence of P.W.4 and P.W.10 suffered from no infirmity and received corroboration from the evidence of P.W.5 and P.W.8, the doctor. It was further held that the evidence of P.Ws.4, 5, 8 and 10 taken together clearly shows that the accused persons caused injury on P.W.10 by means of sword and Bhujali and such injuries were caused with the intention to commit murder. The learned Trial Court further held that the evidence of D.Ws. is nothing but an afterthought one and accordingly, found both the accused persons guilty of the offence under section 307 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years. The learned Appellate Court has been pleased to hold that the injuries sustained by P.W.10 were caused by sharp cutting weapon and the evidence of the victim (P.W.10) and the eye witness (P.W.4) regarding the injuries inflicted by the petitioner and the co-accused on the victim is borne out by the medical evidence. The learned Appellate Court has been pleased to hold that the injuries sustained by P.W.10 were caused by sharp cutting weapon and the evidence of the victim (P.W.10) and the eye witness (P.W.4) regarding the injuries inflicted by the petitioner and the co-accused on the victim is borne out by the medical evidence. The learned Appellate Court further held that the evidence of the victim that both the appellants assaulted him by means of sword and bhujali finds corroboration from the evidence of P.W.4. It was further held that the injuries as borne out by the medical evidence (P.W.8) are not inflicted on the vital parts of the body. Accordingly the learned Appellate Court held that the charge under section 307 of the Indian Penal Code is not tenable and held that the act of the petitioner squarely falls under the mischief of section 326 of the Indian Penal Code. 7. None appears on behalf of the petitioner. Since the revision petition cannot be dismissed for default and has to be disposed of on merit, even if the petitioner or his counsel is absent by examining the correctness, legality or propriety of the order of the inferior Criminal Court, with the assistance of Mr. Deepak Kumar, learned Addl. Standing Counsel, I went through the case records. The learned counsel for the State placed the impugned judgments and the evidence of the witnesses. I also perused the grounds taken in the revision petition to challenge the impugned judgments. The conviction of the petitioner under section 326 of the Indian Penal Code is based mainly on the evidence of the injured (P.W.10), eye witness (P.W.4) and the doctor (P.W.8). P.W.8 examined P.W.10 on 24.03.1995 at S.C.B. Medical College and Hospital, Cuttack and he noticed the following injuries:- (i) Cut injury of right palm dorsally and ventrally; (ii) Cut injury on left forearm and arm; (iii) Cut injury of nose causing loss of hip of nose. X-ray report shows fracture of upper third of shaft of radius and ulna; (iv) Multiple fracture of metacarpal of right hand. Injuries having fracture of radius ulna, left hand, fracture of metacarpal of right hand; (v) Cut injury of nose is grievous in nature; (vi) Cut injury of right palm; (vii) Cut injury of left forearm and arm are simple in nature. P.W.8 has opined that the injuries were caused by sharp cutting weapon. Injuries having fracture of radius ulna, left hand, fracture of metacarpal of right hand; (v) Cut injury of nose is grievous in nature; (vi) Cut injury of right palm; (vii) Cut injury of left forearm and arm are simple in nature. P.W.8 has opined that the injuries were caused by sharp cutting weapon. The injury report has been marked as Ext.2. P.W.10, the injured has stated that on the date of occurrence i.e. on 23.03.1995 at about 6.30 p.m. while he was returning with his niece in a scooter, after crossing a canal, he saw both the accused persons. He reduced the speed of the scooter as the condition of the road was not good. The petitioner dealt a blow with a sword which struck on his left hand and when he covered his niece with his right hand and jumped from the scooter then the petitioner again dealt another sword blow on his head. When he caught hold of the petitioner, the other accused Aju dealt a blow with bhujali on his nose. He further stated that when he fell down, both the accused persons assaulted him and caused injuries on his palm. He has further stated that he was not in good terms with the accused persons since three months prior to the incident and he could not say the number of blows dealt by the accused persons. He further stated that after receipt of seven to eight blows, he fell down and after that he received some more blows on different parts of his body. Nothing has been elicited in the cross examination to discard the evidence of P.W.10. P.W.4 Prakash Rout also specifically stated that the petitioner and the co-accused assaulted P.W.10. He further stated that P.W.10 was taken from hospital to hospital. Though P.W.4 was cross examined at length but no material contradictions have been brought out in his evidence and therefore, the evidence of the injured as well as the eye witness has remained unshaken. The evidence of these two witnesses gets corroboration from the medical evidence and the doctor has noticed number of injuries including fracture in the right hand and left hand apart from cut injuries which have been opined to be grievous in nature. The evidence of these two witnesses gets corroboration from the medical evidence and the doctor has noticed number of injuries including fracture in the right hand and left hand apart from cut injuries which have been opined to be grievous in nature. The witnesses who arrived at the spot immediately after the occurrence have also stated to have noticed injuries on the different parts of the body of P.W.10 which lends support to the evidence of the injured. Though the defence witnesses have stated that P.W.10 received injuries due to fall from the scooter but no such plea has been taken by the petitioner in his statement recoded under section 313 of Cr.P.C. It is well settled principle of law that while judging the veracity of witnesses, there cannot be any different yardstick for judging the prosecution witnesses or defence witnesses and the defence witnesses are to be given equal treatment with the prosecution witnesses. D.Ws. 3 to 8 stated to have arrived at the spot on hearing about the incident. D.W.1 and D.W.2 stated in Court for the first time about the accident. Therefore, the learned Courts below have rightly rejected the defence plea. The grounds taken in the revision petition are the repetitions which are already taken before the learned Trial Court and learned Appellate Court. 8. Thus, in my humble view that the learned Courts below have not committed any illegality in accepting the evidence of the injured as well as other witnesses including the medical evidence. The learned Appellate Court has also rightly altered the conviction of the petitioner from section 307 of the Indian penal Code to section 326 read with section 34 of the Indian Penal Code. The learned Appellate Court also reduced the sentence from rigorous imprisonment from a period of five years to rigorous imprisonment for a period of three years. The petitioner was taken into custody on 25.03.1995 and it appears that he was released on bail on 20.04.1995. The petitioner was aged about twenty five years at the time of occurrence. In the meantime, more than twenty years have already passed. Considering the age of the petitioner, I am of the view that the sentence of rigorous imprisonment be reduced from three years to one year. The petitioner was aged about twenty five years at the time of occurrence. In the meantime, more than twenty years have already passed. Considering the age of the petitioner, I am of the view that the sentence of rigorous imprisonment be reduced from three years to one year. Accordingly the order of the conviction of the petitioner under section 326/34 of the Indian Penal Code is upheld and the petitioner is sentenced to undergo rigorous imprisonment for one year subject to the set off provided under section 428 of Cr.P.C. With the aforesaid modification of the sentence, the revision petition is dismissed.