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2017 DIGILAW 57 (ORI)

Bijaya Ketan Swain v. State of Orissa

2017-01-12

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioners Bijaya Ketan Swain and Dillip Kumar Swain faced trial in the Court of learned J.M.F.C., Jagatsinghpur in G.R. Case No.53 of 1993 (Trial No.361 of 1998) for offences punishable under sections 452, 294, 341, 323, 336, 506, 34 of the Indian Penal Code. The learned Trial Court acquitted the petitioners of the charge under section 452 of the Indian Penal Code but found the petitioners guilty under sections 447, 294, 341, 323, 336, 506 read with section 34 of the Indian Penal Code and sentenced each of them to undergo S.I. for one month under section 294 of the Indian Penal Code, fifteen days under section 341 of the Indian Penal Code, one month under section 447 of the Indian Penal Code, one month under section 336 of the Indian Penal Code, six months under section 323 of the Indian Penal Code and one year under section 506/34 of the Indian Penal Code and the sentences were directed to run concurrently. The petitioners preferred an appeal in the Court of Session and the learned Addl. Sessions Judge, Jagatsinghpur vide impugned judgment and order dated 09.05.2001 in Criminal Appeal No. 15 of 2000 has been pleased to set aside the order of conviction of the petitioners under sections 294/341 of the Indian Penal Code, however, upheld the judgment and order of conviction of the petitioners so far as the other offences are concerned and the sentences passed thereunder, hence the revision. 2. The prosecution case, as per the First Information Report (Ext.1) lodged by the Bhabani Sankar Swain (P.W.4) on 19.01.1993 before the Officer in charge, Jagatsinghpur Police Station is that on 15.01.1993 at about 9.30 a.m. the bhag tenant of the informant namely Purusottam Nayak (P.W.5) was smearing the thrashing floor along with his wife and at that time the petitioner no.2 Dillip Kumar Swain arrived there and abused them in filthy language and also threatened them. P.W.5 told the petitioner no.2 that he was assigned the work by the owner of the thrashing floor. At this the petitioner no.2 got angry and pelted stones and brickbats at P.W.5. When P.W.5 shouted, the informant (P.W.4) came out of the house and challenged the conduct of the petitioner no.2. At this the petitioner no.2 gave a fist blow to the informant on his neck for which he fell down on the ground. At this the petitioner no.2 got angry and pelted stones and brickbats at P.W.5. When P.W.5 shouted, the informant (P.W.4) came out of the house and challenged the conduct of the petitioner no.2. At this the petitioner no.2 gave a fist blow to the informant on his neck for which he fell down on the ground. Thereafter, the petitioner no.2 climbed over the informant and gave him kicks and fist blows. At that point of time the petitioner no.1 who is the brother of the petitioner no.2 arrived there with a spade and both the petitioners assaulted the informant. When the informant shouted, some co-villages arrived at the spot. The mother of the informant namely Smt. Hemalata Swain (P.W.8) also came to the rescue of the informant but both the petitioners also abused her in filthy language and also gave her fist blows for which she fell down on the ground. When the co-villagers arrived at the spot, the petitioners decamped from the spot giving threat to the informant. The informant got injured and he went to Raghunathpur PHC for treatment. It is stated that on the way to the outpost, the petitioners along with some anti-socials congregated and were guarding the informant for which there was delay in lodging of the First Information Report. On the basis of the First Information Report, Jagatsinghpur P.S. Case No. 25 of 1993 was registered on 19.01.1993 under sections 447, 294, 323, 336, 506, 34 of the Indian Penal Code against the petitioners. P.W.6 Basanta Kumar Gochhayat, who was the Sub-Inspector of Police attached to Raghunathpur Police Station took up investigation of the case. During course of investigation, he examined the informant and other witnesses, visited the spot, issued injury requisition in respect of injured Bhawani Sankar Swain and received the injury report. He arrested the petitioner no.2 Dillip Kumar Swain and forwarded him to the Court and after completion of investigation, he submitted charge sheet against both the petitioners under sections 452, 447, 294, 341, 323, 336, 506, 34 of the Indian Penal Code on 20.03.1993. The petitioner no.1 Bijaya Ketan Swain who was an absconder as per the charge sheet surrendered in the Court subsequently and faced trial along with the petitioner no.2 Dillip Kumar Swain. 3. During course of trial, in order to prove its case, the prosecution examined eight witnesses. The petitioner no.1 Bijaya Ketan Swain who was an absconder as per the charge sheet surrendered in the Court subsequently and faced trial along with the petitioner no.2 Dillip Kumar Swain. 3. During course of trial, in order to prove its case, the prosecution examined eight witnesses. P.W.1 Jiten Kumar Rout was the front door neighbour of the informant and he is an eye witness to the occurrence. P.W.2 Prakash Kumar Patra and P.W.3 Pratap Patra are also eye witnesses to the occurrence. P.W.4 Bhabani Sankar Swain is the informant in this case and he has stated about the overtacts committed by each of the petitioners. P.W.5 Purushottam Naik did not support the prosecution case for which he was declared hostile by the prosecution. P.W.6 Basanta Kumar Gochhayat was the S.I. of Police attached to Raghunathpur outpost who is the Investigating Officer of the case. P.W.7 Dr. Ghanashyam Das examined the informant (P.W.4) on police requisition and proved his medical report Ext.2. P.W.8 Hemalata Swain is the mother of the informant. She is also an eye witness to the occurrence. The prosecution exhibited two documents. Ext.1 is the F.I.R. and Ext.2/2 is the injury report. 4. The defence plea of the petitioners is one of denial and it is stated that due to previous dispute, the case has been foisted. One witness namely Pravakar Behera was examined as D.W.1. 5. The learned Trial Court has been pleased to hold that the delay in lodging the First Information Report has been explained by the prosecution and the evidence of D.W.1 does not inspire any confidence. It was further held that the medical evidence is corroborated by the ocular evidence and accordingly, the learned Trail Court found the petitioners guilty under sections 447, 294, 323, 336, 506, 34 of the Indian Penal Code. The learned Appellate Court however has been pleased to hold that the prosecution has failed to prove the charges under sections 294 and 341 of the Indian Penal Code and accordingly, acquitted the petitioners of such charges but upheld the impugned judgment and order of conviction of the petitioners so far as the other charges are concerned. 6. None appears on behalf of the petitioners. Though the informant has also entered appearance in the case through his counsels but none appears on his behalf. 6. None appears on behalf of the petitioners. Though the informant has also entered appearance in the case through his counsels but none appears on his behalf. Therefore, in absence of the learned counsels for the petitioners as well as for the informant, with the assistance of Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel for the State, the revision petition was taken up. Learned counsel for the State placed the impugned judgments as well the evidence. Perused the grounds taken in the revision petition. While challenging the impugned judgment and order of conviction, it is mentioned that the police has manipulated the First Information Report and in column no.2 of the formal First Information Report, the names of three accused persons namely petitioner no.1 Bijaya Ketan Swain, petitioner no.2 Dillip Kumar Swain as well as one Bilita Kumar Swain finds place but there is no allegation against the said Bilita Kumar Swain and he has not even been named in the F.I.R. and the allegations are against only the petitioners and therefore, the First Information Report which was lodged against three accused persons including the petitioners have been suppressed. It is stated that there are contradictions in the evidence of the informant as well as the Investigating Officer relating to the lodging of the First Information Report and the delay in lodging of the First Information Report has not been satisfactorily explained which is fatal to the prosecution. It is also stated in the grounds that there are contradictions in the evidence of the witnesses which has not been properly taken into account. It is stated that even though the learned Appellate Court set aside the order of conviction of the learned Trial Court for the offences under sections 294 and 341 of the Indian Penal Code but so far as other offences are concerned i.e. under sections 447, 323, 336, 506, 34 of the Indian Penal Code, there is absolutely no discussion by the learned Appellate Court while agreeing with the findings of the learned Trial Court and therefore, it is the case of non-application of mind by the learned Appellate Court. 7. 7. On perusal of the impugned judgments of the Courts below as well as the evidence adduced by both the sides and also the materials available on record, there is no dispute that the F.I.R. was lodged on 19.01.1993 at about 4.00 p.m. whereas the occurrence in question stated to have taken place on 15.01.1993 at about 9.30 a.m. In the F.I.R., while trying to explain the delay, it is stated that the informant went to Raghunathpur PHC for treatment but on the way to the outpost, the accused petitioners along with some antisocials congregated and were guarding the informant for which the delay occasioned. In his evidence, P.W.4, the informant has stated that he went to Raghunathpur PHC for his treatment and not only the accused persons threatened him at the time of occurrence but also near the PHC not to lodge the F.I.R. He further stated that on 15.01.1993 he returned to the house and on 16.01.1993 the accused persons did not allow him to lodge the F.I.R. and therefore, he went to his father who was staying at Bhuban and on 19.01.1993 the F.I.R. was lodged. In the cross-examination, he has stated that he was medically examined at Raghunathpur PHC on 15.01.1993 and 16.01.1993 on his own accord. Even though the informant has stated that there was threat to him on 15.01.1993 near Raghunathpur PHC but he has not stated that the petitioners took the assistance to any anti-socials even on 16.01.1993. He has not even stated in the F.I.R. that he was given any threat on 15.01.1993. Raghunathpur outpost is situated at a little distance from Raghunathpur PHC and the informant could have easily lodged the F.I.R. either at Raghunathpur outpost or at Jagasinghpur Police Station on 16.01.1993 or even thereafter. There is no evidence that on 16.01.1993 when he came to Raghunathpur PHC, the accused persons were there near the PHC. There is no explanation for non-lodging of the F.I.R. either on 17.01.1993 or 18.01.1993. There is no evidence that on 16.01.1993 when he came to Raghunathpur PHC, the accused persons were there near the PHC. There is no explanation for non-lodging of the F.I.R. either on 17.01.1993 or 18.01.1993. The informant on the other hand stated that after 16.01.1993, he went to Bhuban near his father and then on 19.01.1993, he lodged the F.I.R. Therefore it is clear that the movement of the informant was not restricted by the petitioners and he was visiting the hospital as well as father after the date of occurrence till he lodged the F.I.R. In such an event, the findings of the learned Courts below that the informant has explained the delay in lodging the F.I.R. satisfactorily cannot be accepted. The F.I.R. in a criminal case is an extremely vital and valuable piece of evidence. The importance of the prompt report can hardly be underestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits, the part played by them as well as the names of the witnesses present at the scene of occurrence. Such delay quite often results in embellishment which is a creature of afterthought. Danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation and therefore, it is settled principle of law that the delay in lodging the First Information Report has to be satisfactorily explained by the prosecution. In the present case, the explanation which has been given by the informant is only for two days which is not at all satisfactory. When he was allowed to go to the Raghunathpur PHC on 15.01.1993 and 16.01.1993 on his own accord and also to visit his father at Bhuban and when the outpost is closely situated to the PHC, there was no earthly reason for him not to lodge the F.I.R. at an earliest. There is no medical documents regarding the treatment of P.W.4 at Raghunathpur PHC either on 15.01.1993 and 16.01.1993. The doctor (P.W.7) on the other hand stated that he examined P.W.4 on 20.01.1993 on police requisition. Thus the prosecution has not explained satisfactorily far days delay in lodging the F.I.R. 8. There is no medical documents regarding the treatment of P.W.4 at Raghunathpur PHC either on 15.01.1993 and 16.01.1993. The doctor (P.W.7) on the other hand stated that he examined P.W.4 on 20.01.1993 on police requisition. Thus the prosecution has not explained satisfactorily far days delay in lodging the F.I.R. 8. Though in the First Information Report, it is stated that the bhag tenant of the informant namely Purushottam Naik (P.W.5) as well as the mother of the informant namely Hemalata Swain (P.W.8) were also assaulted but there is no medical evidence to that effect. The doctor (P.W.7) who examined P.W.4 on 20.01.1993 has stated that the injuries are simple in nature and the age of the injuries were within a week from the date of his examination. There is no specific materials that the place where the occurrence took place was in possession of the informant and therefore, the ingredients of the offence under section 447 of the Indian Penal Code which deals with the punishment for criminal trespass cannot be attracted. Though it is stated that the petitioner no.2 pelted a stone to P.W.5 but no such stone has been seized and there is no evidence that any injury was caused to P.W.5. P.W.5 has not supported the prosecution case. Therefore, I am of the view that the ingredients of the offence under section 336 of the Indian Penal Code are also not attracted. Though in the First Information Report, P.W.4 has mentioned that the petitioner no.1 Bijaya Katan Swain arrived at the spot with a spade and attacked him but no such statement has been made by P.W.4 in his evidence. He simply stated that the petitioner no.1 came and dealt kick blows to him. Therefore, the evidence of the informant is full of contradictions. Considering the evidence on record, the unsatisfactory explanation of delay in lodging of the First Information Report, the contradictions which are appearing in the evidence of the witnesses as well as the other circumstances as discussed above, I am of the view that the impugned judgment and order of conviction passed by the Courts below are not sustainable in the eye of law. Accordingly, the Criminal Revision petition is allowed. Accordingly, the Criminal Revision petition is allowed. The impugned judgment and order of conviction of the petitioners under sections 447, 294, 323, 336, 506, 34 of the Indian Penal Code is hereby set aside and the petitioners are acquitted of such charges. The petitioners who are on bail are discharged from the liability of their bail bonds. Their personal bonds as well as surety bonds stand cancelled.