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2017 DIGILAW 317 (ORI)

Kapili Sudam Das v. State of Orissa

2017-03-23

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner Kapili Sudam Das faced trial in the Court of learned Asst. Sessions Judge, Berhampur in S.C. No. 41 of 1997 for offences punishable under section 394 and section 392 read with section 397 of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 15.04.1998 found the petitioner guilty of all the charges and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/- (rupees one thousand), in default of payment of fine, to undergo R.I. for a period of three months more under section 394 of the Indian Penal Code. He was further sentenced to undergo R.I. for a period of seven years under section 392 read with section 397 of the Indian Penal Code. All the substantive sentences were directed to run concurrently. The petitioner preferred an appeal in the Court of Session which was heard by learned First Additional Sessions Judge, Berhampur in Criminal Appeal No.23 of 1999 and the learned Appellate Court vide impugned judgment and order dated 01.09.1999 set aside the order of conviction under section 397 of the Indian Penal Code but upheld the conviction under sections 392 and 394 of the Indian Penal Code so also the sentence passed thereunder, hence the revision. 2. The prosecution case as per the first information report dated 06.03.1996 lodged by one Prasanta Kumar Panigrahi (P.W.1) before the Officer in Charge of B. Sadar Police Station, Ganjam is that on 05.03.1996 at about 10.30 p.m. while he was returning home on his bicycle from Berhampur, near the village school, the petitioner obstructed him on the way being armed with a sword, abused him in filthy language and assaulted him by sword as a result of which he sustained injuries on different parts of his body. The petitioner took away cash of Rs.1,200/- (rupees one thousand two hundred) and also the wrist watch of P.W.1. While decamping from the spot, the petitioner threatened P.W.1 with dire consequence. On the basis of such report, B. Sadar P.S. Case No.33 of 1996 was registered under sections 394 and 397 of the Indian Penal Code. P.W.9 who was the S.I. of Police attached to Berhampur Sadar Police Station was directed by the Officer in Charge to take up investigation of the case. On the basis of such report, B. Sadar P.S. Case No.33 of 1996 was registered under sections 394 and 397 of the Indian Penal Code. P.W.9 who was the S.I. of Police attached to Berhampur Sadar Police Station was directed by the Officer in Charge to take up investigation of the case. During course of investigation, P.W.9 examined the informant, visited the spot, prepared the spot map Ext.4, seized the cycle of the informant, seized the kati with long handle under seizure list Ext.5 and on 31.03.1996 he handed over the charge of investigation to P.W.10 Uttam Kumar Mohanty who received the opinion from the Medical Officer and on completion of investigation, submitted charge sheet against the petitioner on 23.06.1996 under sections 394 and 397 of the Indian penal Code. 3. During course of trial, the prosecution examined ten witnesses. P.W.1 Prasant Kumar Panigrahi is the informant in the case and he is the injured. P.W.2 Manika Panigrahi is the mother of the injured who stated to have noticed bleeding injuries on the person of her son and stated that her injured son disclosed before her that the petitioner assaulted him by means of sword and snatched away cash of Rs.1020/- from him and a wrist watch. P.W.3 Arjuna Panigrahi is the father of the injured and he also stated in a similar manner like P.W.2. P.W.4 Sahadev Panigrahi is the paternal uncle of the injured and he also stated about the disclosure made by the P.W.1 that the petitioner assaulted him by means of sword. P.W.5 Subash Das stated to have noticed injuries on different parts of the body of P.W.1. P.W.6 Bhaskar Naik also stated to have noticed injuries on the person of P.W.1. P.W.7 J. Krishna Rao stated that on 05.03.1996 P.W.1 had taken Rs.1,000/- from him towards salary. P.W.8 Dr. Jagadananda Mishra who was the Medical Officer in M.K.C.G. Medical College and Hospital, Berhampur examined P.W.1 on police requisition and proved the medical report Ext.2. P.W.9 Jaya Krishna Behera and P.W.10 Uttam Kumar Mohanty are the investigating officers. The prosecution exhibited five documents. Ext.1 is the F.I.R., Ext.2 is the injury report, Ext.3 is the report of the Medical Officer, Ext.4 is the spot map and Ext.5 is the seizure list. The defence plea is one of denial. 4. P.W.9 Jaya Krishna Behera and P.W.10 Uttam Kumar Mohanty are the investigating officers. The prosecution exhibited five documents. Ext.1 is the F.I.R., Ext.2 is the injury report, Ext.3 is the report of the Medical Officer, Ext.4 is the spot map and Ext.5 is the seizure list. The defence plea is one of denial. 4. After analyzing the evidence on record, the learned Trial Court came to hold that the assertion of P.W.1 regarding the petitioner assaulting him with a sword and taking away a sum of Rs.1020/-from his pocket and the wrist watch from his hand have remained unchallenged in the cross-examination and the evidence of P.W.1 is fully corroborated by the evidence of P.Ws. 2 to 4. The learned Trial Court further held that the evidence of the victim is supported by the evidence of natural and competent witnesses and the doctor’s evidence. The learned Trial Court further held that it is clear from the evidence that the petitioner committed robbery of Rs.1020/- and wrist watch from the informant and while committing robbery, he voluntarily caused hurt to the informant by using a kati which is a deadly weapon. The learned Appellate Court has been pleased to hold that taking into consideration the medical report along with the statement of the injured, the fact remained proved that the medical evidence is a strong corroborative piece of evidence to the sole testimony of the injured himself, who had sustained the injuries being assaulted by the petitioner. The learned Appellate Court further held that the evidence of the parents, uncle and the co-villagers of the informant does not show that their evidence either suffered from embellishment of fact or they had shown any anxiety to get the petitioner convicted in a case of any false allegation. It was further held that the disclosure of the fact of occurrence immediately after the occurrence of assault before the parents and the medical examination which was made within two to three hours of the occurrence lead to an irresistible conclusion that the petitioner was the real assailant who had assaulted the injured and taken away the money from the informant. Learned Appellate Court while setting aside the order of conviction of the petitioner under section 397 of the Indian Penal Code, maintained the conviction under sections 392 and 394 of the Indian Penal Code. 5. None appears on behalf of the petitioner. Learned Appellate Court while setting aside the order of conviction of the petitioner under section 397 of the Indian Penal Code, maintained the conviction under sections 392 and 394 of the Indian Penal Code. 5. 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. Jyoti Prakash Patra, learned Additional Standing Counsel, I went through the case records. Mr. Patra 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. In this case, the star witness on behalf of the prosecution is none else than the informant who is the injured and was examined as P.W.1. He stated in detail as to how he was assaulted by means of a sword by the petitioner and how the petitioner snatched away Rs.1020/- from his pant packet and also his wrist watch. P.W.1 has been cross examined at length but his evidence has almost remained unchallenged. Nothing has been elicited in the cross-examination to discard his evidence. The version of P.W.1 gets corroboration from the evidence of his parents before whom he immediately disclosed about the occurrence naming the petitioner as his assailant which is admissible under section 6 of the Evidence Act as res gestae. Section 6 of the Evidence Act is an exception to the general rule whereunder, hearsay evidence becomes admissible but as for bringing such hearsay evidence within the ambit of section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. In other words, the statements said to be admitted as forming part of res gestae must have been made contemporaneously or intimately interwoven or connected with the act or immediately thereafter. The rationale behind this section is the spontaneity and immediacy of the statement in question which rules out any time for concoction or any room for any premeditation and it gives guarantee of the truth. The rationale behind this section is the spontaneity and immediacy of the statement in question which rules out any time for concoction or any room for any premeditation and it gives guarantee of the truth. For describing the concept of "res gestae", one would need to examine, whether the fact is such as can be described by use of words/phrases such as, contemporaneously arising out of the occurrence, actions having a live link to the fact, acts perceived as a part of the occurrence, exclamations (of hurt, seeking help, of disbelief, of cautioning, and the like) arising out of the fact, spontaneous reactions to a fact and the like. The doctor who examined P.W.1 on police requisition on 06.03.1996 noticed number of injuries on his person and stated that all the injuries are simple in nature. The other witnesses have also stated to have seen the injuries on the person of P.W.1. Therefore, the cumulative effect of all the evidence would go to show that not only the petitioner assaulted P.W.1 by means of a sword but he also committed robbery of Rs.1020/- and wrist watch of P.W.1. On perusal of the grounds taken in the revision petition, it is mentioned that prosecution has examined only close relations of the informant and has not examined independent witnesses for which no reliance can be placed on their evidence. I am of the view that the timing of the occurrence is such that it is very difficult to get any independent witness. The informant being the injured is the best witness to the occurrence and the other persons who are the post occurrence witnesses have stated either to have seen injuries on the person of the informant or to have heard from P.W.1 disclosing the name of the petitioner as his assailant. Another ground has been taken that material witnesses have not been examined by the prosecution for which adverse inference should have been drawn. I am of the view that when there is no material that any other witnesses were present at the spot at the time of occurrence, the question of examining them does not arise. Therefore, the grounds taken in the revision petition are not sufficient to discard the prosecution case. I am of the view that when there is no material that any other witnesses were present at the spot at the time of occurrence, the question of examining them does not arise. Therefore, the grounds taken in the revision petition are not sufficient to discard the prosecution case. Law is well settled that an order of conviction can be sustained even on the basis of the evidence of a solitary witness if it is clear, cogent, trustworthy and aboveboard. It is the quality of evidence which is material for judging the question of guilt or otherwise of an accused. P.W.1 who is the injured has clearly stated about the occurrence, the manner in which he was assaulted and also about the takings away of cash as well as his wrist watch by the petitioner. The evidence has remained unshaken. Therefore, after carefully going through the evidence on record, I am of the view that both the Courts below have rightly placed reliance on the evidence adduced by the prosecution to convict the petitioner. Section 220 of Cr.P.C. which deals with trial for more than one offence states in sub-section (4) that if several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts. In illustration to sub-section (4), it is indicated that if A commits robbery on B, and in doing so voluntarily causes hurt to him, A may be separately charged with, and convicted of, offences under sections 323, 392 and 394 of the Indian Penal Code. Therefore, I find no illegality in the order of conviction of the petitioner under sections 392 and 394 of the Indian Penal Code. The manner in which the occurrence has taken place and the conduct of the petitioner at the spot, I am of the view that the sentence imposed by the learned Trial Court cannot be said to be excessive rather it appears to be just and proper. The manner in which the occurrence has taken place and the conduct of the petitioner at the spot, I am of the view that the sentence imposed by the learned Trial Court cannot be said to be excessive rather it appears to be just and proper. Therefore, the impugned judgment and order of conviction of the petitioner under sections 392 and 394 of the Indian Penal Code and the imposition of sentence to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/- (rupees one thousand), in default of payment of fine, to undergo R.I. for a period of three months more under section 394 of the Indian Penal Code and to undergo R.I. for a period of seven years under section 392 of the Indian Penal Code with a further direction that both the sentences are to run concurrently is hereby upheld. Accordingly, the revision petition stands dismissed.