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2017 DIGILAW 448 (ORI)

Biswambar Sahoo v. State of Odisha

2017-04-21

SATRUGHANA PUJAHARI

body2017
JUDGMENT : S.PUJAHARI, J. In this Prisoner’s appeal, challenge is to the judgment dated 22.02.2008 passed by the learned Adhoc Additional Sessions Judge, F.T.C., Jajpur in S.T. No.161 of 2006 whereunder the prisoner (hereinafter referred to as “the appellant”) has been found guilty under Sections 452 and 324 of the Indian Penal Code, 1860 (for short “the IPC”) and sentenced to undergo R.I. for four years and two years respectively. The sentences are directed to be run concurrently. 2. Prosecution case in a short compass was to the effect that one Ratnakar Sahoo (P.W.8) lodged F.I.R. on 19.02.2006 at Mangalpur Police Station alleging, inter-alia, that on 18.02.2006 midnight while he along with his wife – Satyabhama Sahoo (P.W.3) were fast asleep, he woke up hearing knocking of door. Once he opened the door he found his elder brother, appellant – Biswamber Sahoo, his wife – Dhumali Sahoo, their son – Jaga @ Jagabandhu Sahoo and another woman, namely, Jyoshna assembled in front of his house variously armed with like sword, crowbar, iron pipe and bamboo lathis. No sooner, they emerged at the scene of occurrence, those persons sprinkle chilli water on their face and simultaneously attacked them where appellant – Biswambar and his son dealt blows by means of sword and iron rod respectively. Hearing such commotion when their son – Pravakar Sahoo (P.W.4) arrived at the spot from his house, the appellant and others also assaulted him. On arrival of neighbours, the accused persons left the place. Due to assault, the informant (P.W.8), his wife (P.W.3) and their son – Pravakar Sahoo (P.W.4) sustained bleeding wounds. On such report, Mangalpur P.S. Case No.10 dated 19.02.2006 was registered, investigation taken up, injured persons were sent for medical examination and on completion of the investigation, charge-sheet was laid against all the accused persons including the present appellant under Sections 452, 324 and 307 read with Section 34 of I.P.C. The case against appellant and his wife was committed to the Court of Sessions and the case against other accused persons was split up, as they absconded. The appellant and his wife pleaded not guilty to the charge and claimed false implication over property dispute. On consideration of the evidence of the injured witnesses as well as that of medical opinion, the learned trial court held the appellant guilty under Sections 452 and 324 of IPC and sentenced him as aforesaid. The appellant and his wife pleaded not guilty to the charge and claimed false implication over property dispute. On consideration of the evidence of the injured witnesses as well as that of medical opinion, the learned trial court held the appellant guilty under Sections 452 and 324 of IPC and sentenced him as aforesaid. The learned trial court, however, did not find the appellant guilty under Section 307 of IPC and co-accused – Dumali not guilty under all the charges there being no sufficient and adequate evidence brought on record to inculpate her on any charge. 3. The learned counsel for the appellant submitted that the injured witnesses viz. P.Ws.3, 4 and 8 being close relatives, the weapon of offence being not produced before the Medical Officer for his opinion and particularly when there is absolutely no evidence that the appellant had committed house trespass, the learned trial court erred in law as well as in fact in holding the appellant guilty under Sections 452 and 324 of IPC. 4. Controverting such contentions, the learned Addl. Government Advocate for the State supported the impugned judgment of conviction and the sentence imposed. 5. The contentions raised need careful reappraisal of evidence. 6. The principal injured – Ratnakar Sahoo is P.W.8. His wife – Satyabhama Sahoo is P.W.3 while their son, injured – Pravakar Sahoo is P.W.4. In paragraph-1 of his examination-in-chief P.W.8 has stated that hearing commotion when his wife came out of their house and raised alarm, he woke up and also “came out of the house”. According to P.Ws.3, 4 and 8, the site of occurrence was in front of their house on the road. Evidence of P.W.3 revealed that while she was in deep slumber, all on a sudden she woke up hearing knocking of the front ingress of the house, and once she opened the door and stepped out she found the accused persons assembled in front of their house differently armed with. Similar is the statement of P.W.4. His evidence revealed that hearing commotion in front of the house of his father when he came out to ascertain as to what had happened where he sustained injuries being assaulted. P.Ws.1, 5, 9 and 10 are persons living in that vicinity, had also categorically deposed that the alleged occurrence took place in front of the house of Ratnakar. His evidence revealed that hearing commotion in front of the house of his father when he came out to ascertain as to what had happened where he sustained injuries being assaulted. P.Ws.1, 5, 9 and 10 are persons living in that vicinity, had also categorically deposed that the alleged occurrence took place in front of the house of Ratnakar. That place is a road said to have been spared by appellant – Biswambar Sahoo in favour of his brother (P.W.8) and when P.W.8 admitted to have raised construction, this dispute arose. This being the gist of the evidence as to the spot of occurrence and particularly when no spot map prepared and proved in this case, the oral evidence adduced by the prosecution which leads to one and only conclusion that the assault as stated by the prosecution witnesses took place in front of the house of P.W.8 on the road and not inside the dwelling-house of P.W.8. The evidence also does not show as to existence of any outer verandah or courtyard appertained to that house. This is the substance of material evidence adduced in support of the charge under Section 452 of IPC. In order to attract the mischief of Section 452 of IPC, the burden is on the prosecution to establish that the appellant committed “house trespass” having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person or putting any person in fear of such hurt, assault or wrongful restraint etc. In essence, prosecution has to establish that not only the appellant committed house trespass but also while doing so, he made preparation for causing hurt and assault or wrongful restraint or putting any person in fear of the same. The “house trespass” has been defined under Section 442 of IPC can only be applicable when the appellant commits “criminal trespass” by entering into or removing in any building, tent, vessel used as a “human dwelling”. “Criminal trespass” has been defined under Section 441 of IPC. It reads “Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property”. “Criminal trespass” has been defined under Section 441 of IPC. It reads “Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property”. Reverting back to the evidence brought on record, it revealed that while P.W.8 (Ratnakar Sahoo), P.W.5 (Duryodhan Behera) and P.W.3 (Satyabhama Sahoo) were in their houses, the appellant along with others reached there and assaulted them by means of different weapons. These injured witnesses never testified that the appellant entered into their house armed with ‘Khanda’ with intent to cause hurt on them and other inmates. Once there is no pinch of evidence that the appellant committed the house trespass having made preparation for causing hurt, assault wrongful restraint, etc., the ingredient of offence under Section 452 of IPC is conspicuous by its absence in the evidence of the prosecution witnesses, to hold the appellant guilty under Section 452 of IPC. The appellant, as such, cannot be held guilty under the aforesaid Section. The judgment of conviction and order of sentence on that count are, therefore, not sustainable. 7. Reverting to the charge under Section 324 of IPC, evidence of P.Ws.3, 4 and 8 revealed that the appellant being armed with a ‘sword’ when dealt blows, P.W.8 sustained one incised wound of size ½” x ¼” x ¼” on the left wrist joint and another incised would of size 3” x ¼” x 1/4” on the left side of the chest. Both the injuries, however, were found simple in nature. As per the medical opinion under Ext.7 of P.W.11, the injuries found might have been caused by “sharp cutting object”. The evidence further discloses that the appellant had also caused one incised wound of size 1” x ¼” x ¼” on the middle of the dorsal surface of left palm of P.W.4. That injury was also simple in nature and possibly has been caused by “sharp cutting object”. The evidence of P.Ws.3, 4 and 8 is duly corroborated from the medical evidence. No doubt, the alleged weapon of offence has not been seized in course of investigation and, therefore, not produced before the Medical Officer (P.W.11) to obtain his opinion. That injury was also simple in nature and possibly has been caused by “sharp cutting object”. The evidence of P.Ws.3, 4 and 8 is duly corroborated from the medical evidence. No doubt, the alleged weapon of offence has not been seized in course of investigation and, therefore, not produced before the Medical Officer (P.W.11) to obtain his opinion. The Medical Officer, however, with reference to the nature of injuries sustained by P.Ws.4 and 8 has opined that the injuries were fresh and possibly caused by “sharp cutting object”. The very first ingredient for invoking the mischief of Section 324 of IPC is that the appellant must cause “simple hurt” and that it must be caused voluntarily. “Voluntarily causing hurt” has been defined under Section 321 of IPC where it reads that “whoever does any act with intention, thereby of causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said “Voluntarily to cause hurt”. When the appellant with others assembled in front of the house of the appellant at that unearthly hour of the night possibly armed with a sharp weapon and caused simple hurt to P.Ws.4 and 8 disputing use of a piece of land apparently spared by him to be used as path by P.W.8, he has ‘voluntarily’ caused that hurt. That apart, to bring an offence under Section 324 of IPC, the instrument must be one, not which is ‘liable’ but which is ‘likely’ to cause death; the instrument used must be one of which one can predicate that the probable result of its use will be, by virtue of its very nature, death. It must be inherent in the nature of the ‘instrument’ used that the death is likely to ensue. Here, the injured witnesses and other independent persons of that locality have affirmatively deposed that the appellant was armed with a ‘Khanda’ and evidently that weapon of offence was used by him which caused incised wound though simple in nature. From its very nature, ‘Khanda’ is an instrument for stabbing or cutting and which if used as an weapon of offence is likely to cause death. It is inherent in the nature of that instrument. From its very nature, ‘Khanda’ is an instrument for stabbing or cutting and which if used as an weapon of offence is likely to cause death. It is inherent in the nature of that instrument. However, none of the witnesses have testified as to the dimension of the iron part of the ‘Khanda’ and with its shape. That part, there is no medical evidence as well to show that the weapon used was one of the instruments for shooting, stabbing or cutting as mentioned in Section 324 of IPC. The doctor has also not whispered the possible nature of the weapon used which caused hurt, his evidence being omnibus in nature that a “sharp cutting object” was possibly used to cause the injury found by him. However, ‘Khanda’ as its identity suggests is a “dangerous in nature” and when the witnesses en masse have deposed that the appellant caused the injuries by means of a ‘Khanda’, the mischief of Section 324 of IPC would attract notwithstanding non-seizure of the said weapon of offence and absence of opinion of the Medical Officer that it was “dangerous in nature”. The character of ‘Khanda’ is inherent. 8. The next consideration is the evidentiary value of P.Ws.3, 8 and 11 they being close relations. Law is well settled that by itself is not sufficient to brush aside their evidence if their version is otherwise reliable and inspiring confidence. Merely because the witnesses are closely related, their testimony cannot be discarded. Their relationship is not a factor that affects their credibility, more so a relation would not conceal an actual culprit and makes allegation against an innocent person. A party has to lay down a factual foundation and proof by leading impeccable evidence in support of its false implication. The evidence of such witness, therefore, cannot be ignored or thrown out merely because the witnesses are related to each other. Law relating to appreciation of evidence of an interested witness is also well settled. According to it, the version of an interested witness cannot be thrown overboard but has to be examined critically before accepting the same. In the light of the aforesaid law, when this Court examined the trustworthiness of P.Ws.3, 4 and 8, it is noticed, all of them had sustained injuries in course of the alleged incident. According to it, the version of an interested witness cannot be thrown overboard but has to be examined critically before accepting the same. In the light of the aforesaid law, when this Court examined the trustworthiness of P.Ws.3, 4 and 8, it is noticed, all of them had sustained injuries in course of the alleged incident. They having sustained injuries in course of the same occurrence is established, they are also natural witnesses, their presence being normal. Their presence at the spot of occurrence also not disputed by the defence and when their testimony gets ample corroboration from the medical evidence, there is no just and reasonable ground to discard such evidence of injured witnesses. Injuries on their person lend absolute assurance to their testimony that they were present at the spot and had sustained the injuries in course of that occurrence. The learned trial court has considered such aspect with due care. Moreover, the Apex Court in the case of Balasore Mahto and another vrs. State of Bihar and another, (2017) 66 OCR (SC) 737, have held that when there is no contradictions between the medical and ocular evidence and when due credits needs to be accorded to the evidence of such witnesses, no infirmity in conviction. It is also held by the Apex Court that the question of weight to be attached to the evidence of a witness who was himself injured in course of the occurrence, the testimony of such a witness is generally considered to be very reliable as he is a witness that comes with a built-in-guarantee of his presence at the scene of the crime and he is unlikely to spare his real assailants in order falsely implicate someone. Convincing evidence is required to discredit an injured witness. [See:- 2010 (10) SCC 259 (Abdul Sahi vrs. State of Madhya Pradesh)] The law on this point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is a consequence of the fact that the injury to the witness is an in-built-guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailants to go unpunished merely to falsely implicate a third party for commission of the offence. This is a consequence of the fact that the injury to the witness is an in-built-guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailants to go unpunished merely to falsely implicate a third party for commission of the offence. The evidence of injured witnesses should be relied upon as done by the trial court and concurred by this Court since there are no strong grounds for rejection of such evidence on the basis of minor contradictions and inconsequential discrepancies therein. 9. Consequently, this Court is of the view that when the eyewitness’s account is found credible and trustworthy, the medical opinion supporting the possibility of the weapon of offence caused such injuries and particularly when evidence found inherently consistent and probable to the motive of the crime, absolute assurance is placed on such independent witnesses and injured eyewitnesses to hold that the appellant is guilty of the offence punishable under Section 324 of IPC. The learned trial court has dealt with this aspect with care and caution and, therefore, the conclusion the trial court arrived at, cannot be interfered with. 10. Resultantly, for the foregoing reasons, this Court finds the appellant not guilty under Section 452 of IPC. His conviction and sentence imposed thereunder are set-aside. However, the conviction of the appellant under Section 324 of IPC and sentence imposed thereunder are affirmed. 11. With such modification, this JCRLA is allowed in part. L.C.R. received be sent back forthwith along with a copy of this Judgment.