Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 329 (ORI)

Akhan Panigrahi v. State Of Orissa

2019-04-17

D.DASH

body2019
JUDGMENT D.Dash, J. - This appeal has been filed against the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Bhadrak in S.T. Case No. 16/63 of 1990. All these appellants (except appellant No. 12) stood charged for offence under Section 148 and 302, IRC. read with Section 149,1.P C. whereas the appellant No. 12 faced the trial for offence under Section 302 read with Section 114, I.P C. They have been found guilty for commission of offence under Section 148 and 325, I.P.C. read with Section 149, I.P.C. whereas appellant No. 12 has been found guilty for offence under Section 325 read with Section 114, I.P.C. Having been convicted, as above, all the appellants except appellant No. 12 have been sentenced to undergo rigorous imprisonment for a period of three years on each count which are to run concurrently whereas appellant No. 12 has been sentenced to undergo rigorous imprisonment for a period of three years for the offence under Section 325 read with Section 114 of I.P.C. It may be stated here that relying upon the memo filed by Mr.D.P. Dhal, learned counsel for the appellants in Court today which has been taken on record, to the effect that accused Akhan Panigrahi is dead, it is ordered that the appeal stands abated as against him. 2. Prosecution case as it is from the FIR (Ext 1) that on 29.11.89 during morning hours around 8 a.m., when the deceased Madan Panda was coming carrying bundles of paddy sheaves through the ridge of the land of one Hemanta Panda; seeing him accused Gauranga and Bidyadhar caused obstruction and told that he could not pass through that ridge. In view of said obstruction, the deceased Madan came to his nearby land leaving the bundles of paddy sheaves and it is said that accused Ananda then dealt a lathi blow on his head and another blow on his left hand which resulted his fall. It is next alleged that accused Gauranga and Bidyadhar came being armed with lathis. They being instigated by accused Sadhu to assault, accused Gauranga and Bidyadhar assaulted Madan by giving lathi blows. It is alleged that all the accused persons came to the spot with deadly weapons like sickle, bahungi, katari etc. and they indiscriminately assaulted the deceased by means of those weapons causing multiple injuries on his body. They being instigated by accused Sadhu to assault, accused Gauranga and Bidyadhar assaulted Madan by giving lathi blows. It is alleged that all the accused persons came to the spot with deadly weapons like sickle, bahungi, katari etc. and they indiscriminately assaulted the deceased by means of those weapons causing multiple injuries on his body. The deceased being shifted to the nearest hospital was then removed to District Headquarter hospital and thereafter to the S.C.B. Medical College & Hospital, Cuttack where he ultimately succumbed to the injuries. The matter being reported at the Police Station, case was registered and the investigation commenced. The investigating officer, on completion of the investigation, submitted the charge-sheet, placing all the accused persons to face trial. The case being committed, accused persons faced the trial for the offences as aforestated. In the trial the accused persons have taken the plea of complete denial and false implication on account of political rivalry. 3. Prosecution, in order to established its case against the accused persons, has examined fourteen witnesses whereas the defence being called upon has not let in evidence by examining any witness from their side except proving a letter sent to the police by the Doctor (P.W.8) which has been marked as Ext.8. Besides oral evidence, the prosecution has proved the F.I.R.(Ext.1), injury report (Ext.5), dying declaration (Ext. 10), inquest report (Ext. 13), chemical examination report (Ext. 12) and post mortem report (Ext, 15) together with the seizure lists and other formal documents. The Trial Court, on analysis of evidence, has came to the conclusion that the prosecution has established its case against the accused persons except accused Sadhu for commission of offence under Section 148 I.P.C. Coming to the charge under Section 302 read with Section 149, I.P.C., the Trial Court has held them guilty for offence under Section 325 read with Section 149 I.P.C. instead of finding their guilt for offence under Section 302 read with Section 149 I.P.C. Insofar as appellant No 12 is concerned, it has been held that the prosecution has proved its case against him for offence under Section 325/114, I.P.C. Accordingly, they have been sentenced as aforesaid. 4. Mr.D.P. Dhal, learned counsel for the appellants at the outset instead of questioning the finding of conviction recorded by the Trial Court against the appellant Nos. 2 to 11 contends for reduction of sentence as has been imposed against them. 4. Mr.D.P. Dhal, learned counsel for the appellants at the outset instead of questioning the finding of conviction recorded by the Trial Court against the appellant Nos. 2 to 11 contends for reduction of sentence as has been imposed against them. It is his submission that in the meantime, about 30 years have elapsed since the incident and all these appellants barring appellant Nos. 3 and 5 are in their sixties and seventies. He further submits that the appellant Nos. 3 and 10 are also in their fifties. According to him, the Trial Court has found that there was no intention on the part of these appellants to cause the death of Madan and that is the reason they have been convicted for their roles in assaulting the deceased under Section 325/149,I.P.C. being the members of the unlawful assembly in prosecution of the common object of the said assembly. He further submits that in the meantime all these appellants who come from rural background and live on cultivation have settled in life and are maintaining their families. According to him, in the present situation sending these appellants again behind the bar would not meet the ends of justice and it would cause serious sufferance to the members of the respective families. He, therefore, urges that keeping the totality of the facts and circumstances in view as also other surrounding circumstances which now prevails, when these accused persons, i.e., appellant Nos. 2 to 11 are not having any such criminal background, it is a fit case where this court should consider to reduce the substantive sentence to the period already undergone and may further impose fine as deemed appropriate. Insofar as the conviction and sentence recorded against accused Sadhu is concerned, it is his submissions that the Trial Court has not properly appreciated the evidence as to the instigation said to have been given by the accused Sadhu to accused Gauganga and Brundaban to assault the deceased Madan. He, therefore, submits that the conviction for offence under Section 325,I.PC. with the aid of Section 1491. PC. recorded against accused Sadhu cannot be sustained. In support of his contention, he has placed the evidence of all the prosecution witness as to the role of the accused Sadhu. -It is his submission that even accepting the prosecution evidence as laid, the conviction against the accused Sadhu for offence under Section 325, I. PC. PC. recorded against accused Sadhu cannot be sustained. In support of his contention, he has placed the evidence of all the prosecution witness as to the role of the accused Sadhu. -It is his submission that even accepting the prosecution evidence as laid, the conviction against the accused Sadhu for offence under Section 325, I. PC. with the aid of Section 114 I.P C. is untenable as he cannot be said to have abated the commission of offence for assault upon the accused persons especially by accused Gauranga and Bidyadhara. He also submits that the evidence of prosecution witnesses on the score are inconsistent and do not inspire confidence. Learned counsel for the State submits that taking into account the manner I of happening of the incident and the role played by the accused persons in indiscriminately assaulting the deceased Madan, the sentence upon them by the Trial Court is just and proper. According to him, the sentence as has been imposed by the Trial Court is rather on a lower side. As regards the conviction recorded against the accused Sadhu is concerned, it is his submission that when it reveals from the evidence on record that this accused Sadhu arrived at the place shortly after commencement of the incident and then at that spot instigated those two accused persons namely Gauranga and Bidyadhara, so as to assault the deceased Madan which they did thereafter, the Trial Court has rightly convicted accused Sadhu for the said offence as an abettor with the aid of Section 114, I.P.C. 5. On the above submission, touching the finding of guilt upon accused Sadhu, at first this court is called upon to examine the evidence on record on that score to judge the sustainability of said finding. 6. P. W. 1 is the nephew of the deceased. After narrating the incident and describing the role played therein by the accused persons, he has stated that after his uncle was first assaulted by the accused Ananda, he fell down. Accuse' Sadhu then arrived and told to assault and thereafter accused Bidyadharam Gauranga assaulted him. He alone claims to have seen this as none others were present there. Accepting said version of P. W. 1, it is seen that by the time accused Sadhu arrived at the spot, assault upon the deceased Madan had already taker place though it was by accused Ananda. He alone claims to have seen this as none others were present there. Accepting said version of P. W. 1, it is seen that by the time accused Sadhu arrived at the spot, assault upon the deceased Madan had already taker place though it was by accused Ananda. When he states that accused Sadhu arrived there and told, he is not standing as to whom he told. It is in FIR (Ext. 1) that accused Sadhu from a distance told that where after accused Gauranga and Bidyadhara assaulted Madan. From the tenor of evidence of P.W.1, it is seen that by the time accused Sadhu arrived there at the spot, these two accused persons, namely, Bidyadhar and Gauranga were already there and witnesses have stated that they were holding weapons. When this witness says that Sadhu came and told to assault and then Bidyadhar and Gauranga assaulted, P.W.2 who claims to have seen the entire occurrence of assault is not stating anything as to the arrival of accused Sadhu and to have directed other accused persons to assault Madan Evidence of P.W.3 is to the effect that accused Hemanta, Bidyadhar and Gauranga came running and at the same time accused Sadhu came running from village side and stood at a little apart and directed to assault Madan. He does not say that accused Sadhu came with other two-accused. He is not stating as to whom he told. That is also the version of P. W.4 P. W.5 stated that accused Sadhu standing on the other side of the channel directed accused Gauranga and Bidyadhar to assault. Thus in the totality of the evidence of the prosecution witnessees in so far as the role of accused Sadhu is concerned, I am of the considered view that the same do not inspire confidence in mind to hold beyond reasonable doubt that accused Sadhu had instigated accused Gauranga and Bidyadhar to assault Madan and in pursuance thereof, they assaulted. The Trial Court without proper , scrutiny of evidence on that count appears to have gone to hold accused Sadhu in playing said role during the incident. In view of that, I find that the Trial Court is not right in holding accused Sadhu guilty for commission of offence under Section 325, IPC. read with Section 114, IPC. in that view of the matter accused Sadhu is entitled to be acquitted of the charge. In view of that, I find that the Trial Court is not right in holding accused Sadhu guilty for commission of offence under Section 325, IPC. read with Section 114, IPC. in that view of the matter accused Sadhu is entitled to be acquitted of the charge. 7. Coming to the question of appropriate of sentence upon accused persons other than accused Akhan and Sadhu for their conviction for offence under Section 148 and 325 read with Section 149, I.P.C., it is seen that accused Abhimanyu, Ananda, Banamali, Bidyadhar, Alekha, Gauranga, Surendraand Mahendraare by now aged around 65,82,65,68,73,60,78,68 years respectively whereas accused Rabindra and Hemanta are aged about 55 and 52 years respectively. All these accused persons are said to be first offenders without any criminal track record and they hail from the rural background living on cultivation, which is the only source of income for them to maintain their respective family. By now there has been lapse of more than twenty nine years since the incident. Keeping in view all these above at this point of time, in my considered view, they being visited with substantive sentence for further period would not meet the ends of justice. In the above premises, the substantive sentence in so far as accused persons other than Akhan and Sadhu is reduced to the period already undergone and each one is directed to pay fine of Rs. 2,000/- on each count, in default of which each would undergo rigorous imprisonment for a period of six months on each count. 8. In the result, the appeal in so far as the accused Sadhu is concerned stands allowed by setting aside the finding of conviction and order of sentence recorded against him and in respect of others except accused Akhan, the appeal stands disposed of with confirmation of the order of conviction as has been recorded by the Trial Court and modification of sentence to the extent as indicated above.