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2019 DIGILAW 205 (ORI)

Prafulla Kumar Sethi v. State Of Orissa

2019-03-11

D.DASH

body2019
JUDGMENT D. Dash, J. - The petitioner, by filing this revision, has assailed the judgment dated 13.09.2001 passed by the learned Additional Sessions Judge, Angul in Criminal Appeal No.19 of 2000. By the said judgment, the appellate court has altered the conviction recorded by the trial court for the offence under Section 326 IPC to one under Section 324 IPC and has accordingly modified the sentence of rigorous imprisonment of two years and to pay a fine of Rs. 2,000/- in default to undergo rigorous imprisonment for six month to a period of rigorous of one year. 2. The prosecution case, in short, is that on 2.10.1985 around 8 pm., when Uchhaba Sethi (P.W.2) was returning to his house from outside where he had gone to urinate, accused Kathi Sethi came from behind and suddenly caught hold of him. It is alleged that then accused Prafulla (present petitioner) is stated to have dealt one axe blow on the right side of his face causing severe bleeding injury. 3. In the trial, accused Kathi Sethi has been acquitted on the ground that the prosecution evidence is silent as regards as to any such role to have been played by him in the entire incident whereas accused Prafulla, who is portrayed as the assailant has been finally convicted for commission of offence under Section 324 IPC. 4. The plea of the defence is that of complete denial and false implication. The trial court, on going through the evidence of witnesses numbering eleven and upon their analysis and evaluation, has recorded a finding that the prosecution has proved its case against the accused-Prafulla. Accordingly, the he has been convicted for the offence under Section 326 IPC and sentenced as aforestated. 5. The learned appellate court, having made independent analysis of evidence both oral and documentary on record at its level, has recorded its satisfaction and altered the conviction and sentence as aforesaid. 6. Learned counsel for the petitioner submits that although in the FIR (Ext. 1), which forms the foundation of the prosecution case, role of both accused persons has been narrated, in the trial the first part has been given a go bye and the accusation has been made only against accused Prafulla as the assailant in this connection, she has invited the attention of the Court to the evidence of P.W. 2. 1), which forms the foundation of the prosecution case, role of both accused persons has been narrated, in the trial the first part has been given a go bye and the accusation has been made only against accused Prafulla as the assailant in this connection, she has invited the attention of the Court to the evidence of P.W. 2. Thus, she submits that when the prosecution, having laid the case in one manner comes to the trial and gives a go bye to one part of such incident, the case as presented in the trial is rendered doubtful and the prosecution witnesses for that reason cannot be taken to the trustworthy and their on that score should not have been relied upon to find the accused-Prafulla guilty more particularly in the absence of any explanation to the effect that one accused here, accused Kathi had been inadvertently implicated while narrating the incident in the FIR or for some other reason. She further submits that if one goes through the evidence of the injured (P.W.2), who is the star witness to the prosecution so as to fashion the criminal liability of accused Prafulla and the same is then compared with the evidence of P.W.1, particularly as to the seat of injury, there remains discrepancy which has not been reconciled. In view of all the above, she urges that the appreciation of evidence by the trial court as well as the appellate court in arriving at a conclusion with regard to the guilt of the accused is perverse and contrary to the settled principles of law holding the field. She, therefore, urges for setting aside the impugned order of conviction and sentence. 7. Learned Additional Standing Counsel submits that the evidence of P.W. 2 having been found to be reliable, the courts below have committed no mistake in holding the accused Prafulla as guilty for the offence under Section 324 IPC. According to him, the discrepancy in the evidence of P.W. 1 and 2, as has been submitted particularly with respect to the seat of injury is not of that degree so as to be reckoned with and taken as fatal to the case of the prosecution. According to him, the discrepancy in the evidence of P.W. 1 and 2, as has been submitted particularly with respect to the seat of injury is not of that degree so as to be reckoned with and taken as fatal to the case of the prosecution. He however is not in a position to dispute that although in the FIR, the specific role of accused Kathi had been narrated the same has not been stated by the witnesses; mainly P.W. 2, the injured in the trial. According to him, the courts below having already acquitted that accused when the evidence as regards the role played by the accused-Prafulla is acceptable coming from the lips of the reliable injured witness, P.W. 2; the conviction recorded against him on that score is not liable to be set aside. 8. In order to appreciate the rival submissions, let us first of all have a glance at the FIR narration. The FIR has been admitted in evidence and marked as Ext. 1 through P.W. 1, who is none other than the son of the injured, P.W. 2 and who claims in his evidence to have arrived at the spot hearing hullah and to have seen the accused Prafulla running away throwing the axe. It is in the FIR that when accused Kathi Sethi caught hold of P.W. 2 and restrained his movement, it is accused Prafulla, who dealt an axe blow causing the bleeding injury on the right side of the face. During evidence, this P.W. 1 has stated that when accused Prafulla saw him, he threw the axe and then accused Kathi picked up the same and left the place. At this juncture, when the evidence of P.W. 2 is gone through, it is found that he is not implicating accused Kathi in any manner in the incident nor is hinting at his presence then. 9. At this juncture, when the evidence of P.W. 2 is gone through, it is found that he is not implicating accused Kathi in any manner in the incident nor is hinting at his presence then. 9. In such state of affair in the evidence, when the prosecution case has been built upon the foundation that first accused Kathi restrained and then accused Prafulla assaulted and in the trial, the beginning part concerning the definite role of one, is not stated by the injured himself and the courts below have, therefore, acquitted the said accused Kathi, the fatal impact of the same has however not been considered by the courts below while finding out the establishment of the role of accused Prafulla which in my considered view could not have been lightly brushed aside as if of significance. 10. It is not a case where accused Kathi has been acquitted giving benefit of doubt that it is so for the reason that the injured himself is not at all implicating that accused. The evidence of P.W. 1 is not receiving the corroboration as to even the presence of accused Kathi in the place of incident from the evidence of P.W. 2 and then P.W. 2 having not implicated accused Kathi, the jeal of P.W. 1 to falsely rope in accused Kathi gets exposed which 'puts the court at guard. That thus brushes the evidence of P.W. 2 into the circle of doubt. In such state of affair in the evidence, I am of the considered view that the finding of the courts below in accepting the other part of the incident as is stated by P.W. 2 as regards the role of accused Prafulla is the outcome of perverse appreciation of evidence. Therefore, the finding of guilt as recorded against the petitioner for commission of offence under Section 324 IPC cannot sustain. 11. In that view of the aforesaid discussion and reason, the judgment dated 13.09.2001 passed by the learned Additional Sessions Judge, Angul in Criminal Appeal No.19 of 2000 convicting the petitioner (accused Prafulla) for offence under Section 324 IPC and sentencing him to undergo rigorous imprisonment for a period of one year is set aside. 12. Resultantly, the CRLREV is allowed. In that view of the aforesaid discussion and reason, the judgment dated 13.09.2001 passed by the learned Additional Sessions Judge, Angul in Criminal Appeal No.19 of 2000 convicting the petitioner (accused Prafulla) for offence under Section 324 IPC and sentencing him to undergo rigorous imprisonment for a period of one year is set aside. 12. Resultantly, the CRLREV is allowed. The accused, if is in custody, be set at liberty forthwith in case his detention is not so required in any other case and in case, he is on bail, the bail bonds shall stand discharged.