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2021 DIGILAW 329 (ORI)

Umesh Bagh v. State Of Odisha

2021-07-29

S.K.SAHOO

body2021
JUDGMENT S.K. Sahoo, J. - The appellant Umesh Bagh faced trial in the Court of learned Chief Judicial Magistrate -cum- Assistant Sessions Judge, Sundargarh in Sessions Trial No.87/60 of 2015 for commission of offences punishable under sections 341, 323, 294, 506 and 307 of the Indian Penal Code. The learned trial Court vide impugned judgment and order dated 11.04.2018 though acquitted the appellant of the charges under sections 341, 294 and 506 of the Indian Penal Code but found him guilty under sections 323 and 307 of the Indian Penal Code and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/- (rupees one thousand), in default, to undergo further simple imprisonment for two months under section 323 of the Indian Penal Code and to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo further rigorous imprisonment for one year for the offence under section 307 of the Indian Penal Code and both the sentences were directed to run concurrently. 2. The prosecution case, as per the first information report lodged by one Ugrasen Bagh (P.W.1) before the Inspector in-Charge of Hemgir police station on 19.03.2015, is that on that day in the early morning, all of his family members had been to collect Mahua flowers and his wife Gulabati Bagh (P.W.2) was alone present in the house. At about 7.30 a.m., the informant heard shouting of P.W.2 that the appellant was assaulting her by means of a stick. Hearing such cry, P.W.1 along with his brother Gajendra Bagh (P.W.3) rushed to the spot and found that the appellant was continuing to assault P.W.2. Even though P.W.3 protested the appellant not to assault P.W.2 but the appellant did not listen rather he assaulted to P.W.3 with the stick with which he was assaulting P.W.2. It is the further prosecution case that on account of assault of the appellant, P.W.2 sustained injuries on her head and right hand. After arrival of the informant and his brother at the scene of occurrence, while leaving the spot, the appellant threatened P.W.2 with dire consequences. It is the further prosecution case that there was civil dispute between the family of the appellant and the informant over landed properties for which the appellant tried to assault P.W.2 to kill her. After arrival of the informant and his brother at the scene of occurrence, while leaving the spot, the appellant threatened P.W.2 with dire consequences. It is the further prosecution case that there was civil dispute between the family of the appellant and the informant over landed properties for which the appellant tried to assault P.W.2 to kill her. The written report of P.W.1 was treated as F.I.R. and registered as Hemgir P.S. Case No.39 dated 19.03.2015 against the appellant under sections 341, 323, 294, 506 and 307 of the Indian Penal Code. P.W.10 Budhadev Naik, S.I. of Police attached to Hemgir police station took up investigation of the case on the direction of the Inspector in-charge and during course of investigation, he examined the witnesses and recorded their statements, sent the injured Gulabati Bagh (P.W.2) for her medical examination at C.H.C., Hemgir, visited the spot, prepared the spot map (Ext.5), seized the weapon of offence, which is a stick lying at the spot under seizure list Ext.2, arrested the appellant and forwarded him to Court, received the injury report of P.W.2 and made a query relating to the possibility of injuries sustained by P.W.2 with the stick seized at the spot and received the opinion of the Medical Officer. On 15.04.2015 on completion of investigation, P.W.10 submitted charge sheet against the appellant under sections 341, 323, 294, 506 and 307 of the Indian Penal Code. 3. After submission of charge sheet, the case was committed to the Court of Session where the learned trial Court framed the charges against the appellant as already stated on 11.01.2016 and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. The defence plea of the appellant is one of denial and it is pleaded that since there was civil dispute between the parties, he had been falsely implicated in the case. 5. During course of trial, in order to prove its case, the prosecution has examined as many as ten witnesses. P.W.1 Ugrasen Bagh is the husband of the injured and he is also the informant in the case and an eye witness to the occurrence. 5. During course of trial, in order to prove its case, the prosecution has examined as many as ten witnesses. P.W.1 Ugrasen Bagh is the husband of the injured and he is also the informant in the case and an eye witness to the occurrence. P.W.2 Smt. Gulabati Bagh is the injured in the case and she stated that while she was in her house in the morning hours on the date of occurrence, the appellant came to her house, abused her in filthy language and assaulted her by means of a stick for which she sustained injury and when she started running towards threshing floor raising hulla, the appellant continued to assault her, as a result of which she sustained bleeding injuries. P.W.3 Gajendra Bagh is the younger brother of the informant and an eye witness to the occurrence. P.W.4 Sadhu Majhi is a witness to the seizure of stick (badi) under seizure list (Ext.2). P.W.5 Karmu Pradhan and P.W.6 Mitrabhanu Kalo are the post occurrence witnesses. P.W.7 Jagannath Samaratha is a witness to the seizure of seizure list (Ext.2). P.W.8 Raghunath Amat is a co-villager, who did not support the prosecution case. P.W.9 Dr. Indrakumar Nathani examined the injured (P.W.2) and proved the injury report (Ext.3). P.W.10 Budhadev Naik was the S.I. of Police attached to Hemgir police station and he is the Investigating Officer of the case. The prosecution exhibited six numbers of documents. Ext.1 is the F.I.R., Ext.2 is the seizure list, Ext.3 is the injury report, Ext.4 is the formal F.I.R., Ext.5 is the spot map and Ext.6 is the query requisition. The appellant examined himself as D.W.1. 6. The learned trial Court after assessing the evidence on record has been pleased to hold that the prosecution has failed to establish the charges under sections 341, 294 and 506 of the Indian Penal Code. However, taking into account the evidence of the eye witnesses as well as the medical evidence, it was held that the charges under sections 307 and 323 of the Indian Penal Code have been proved by the prosecution. 7. Mrs. However, taking into account the evidence of the eye witnesses as well as the medical evidence, it was held that the charges under sections 307 and 323 of the Indian Penal Code have been proved by the prosecution. 7. Mrs. Sonali Das, learned counsel appearing for the appellant placed the first information report, evidence of the witnesses, the impugned judgment and contended that the evidence of the witnesses to the occurrence who are related to each other and have landed dispute with the appellant should not be accepted as the same are discrepant and the medical evidence runs contrary to the ocular evidence inasmuch as the manner in which the assault stated to have been made on P.W.2 on different parts of the body repeatedly by a stick is falsified by the number of injuries noticed by the doctor. It is further contended by the learned counsel for the appellant that there are no materials to attract the ingredients of the offence under section 307 of the Indian Penal Code and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant. Mr. Arupananda Das, learned Additional Government Advocate for the State, on the other hand, supported the impugned judgment and argued that the eye witnesses including the injured herself have implicated the appellant in the assault of the injured and the doctor has also noticed some injuries on her person and therefore, the appeal should be dismissed. 8. Coming to the evidence of P.W.2, the injured, she stated that while she was in her house in the morning hours on the date of occurrence, the appellant came to her house, abused her in filthy language and assaulted her by means of a stick for which she sustained injuries and when she started running towards threshing floor raising hulla, the appellant continued to assault her, as a result of which her right hand vein was cut and she sustained bleeding injuries in four places of her head. In the cross-examination, P.W.2 stated that inside the house, the appellant dealt four blows for which she sustained bleeding injuries on four places of her head and in the threshing floor, the appellant also dealt blows for which she sustained injuries on her shoulder and the vein of her right hand was cut and she also sustained bruise on the left side back. She admitted that the appellant is the son of her paternal uncle in-law and there was dispute which was persisting over the landed properties. She denied the defence suggestion that in order to get rid of the appellant from the claim over the landed properties, she had fabricated the case. Now coming to the evidence of the doctor (P.W.9), it appears that he examined P.W.2 on the very day of occurrence i.e. on 19.03.2015 on police requisition and noticed only two injuries i.e. one lacerated wound of size 2' x 1' on her head and one lacerated wound of size 1' x 1' on her right arm and he opined that both the injuries might have been caused by hard and blunt object and the injuries were opined to be simple in nature and the age of injuries was within six to eight hours prior to his examination. He further stated that such injuries could be possible by falling on hard and rough surface. The seized stick, which is stated to be the weapon of assault, was not produced at the time of trial to be identified by the relevant witnesses nor has the same been marked as material object. On careful analysis of the evidence of P.W.2, it appears that she has stated that the appellant assaulted on her at two places i.e. first inside her house and then in the threshing floor and on each occasion, number of blows were given by means of a stick. She even stated that the right hand vein was cut and she sustained bleeding injuries at four places on her head. She stated in the cross-examination that in the threshing floor, the appellant dealt blows on her hand and head for which she sustained injuries on her shoulder and the vein of her right hand was cut and on the left hand above also. Looking at the medical evidence adduced by P.W.9, it is apparent that the evidence of the injured (P.W.2) is not corroborated by the medical evidence. More numbers of injuries were expected on the body of P.W.2 had she been assaulted in the manner she deposed to have been assaulted by the appellant. Looking at the medical evidence adduced by P.W.9, it is apparent that the evidence of the injured (P.W.2) is not corroborated by the medical evidence. More numbers of injuries were expected on the body of P.W.2 had she been assaulted in the manner she deposed to have been assaulted by the appellant. The evidence of the other eye witnesses like P.W.1 and P.W.3 that they also saw the assault on P.W.2 after arriving at the spot on hearing hullah of P.W.2 is very difficult to be accepted, as just two numbers of injuries were received by P.W.2 and therefore, the assault would not have continued for a longer period. Though P.W.3 stated that he was also assaulted by the appellant with the stick but he stated that he was not medically examined. P.W.3 stated that his entire hand was smeared with blood and he had shown the injury to the police. If that be so, it is not understood as to why he was not sent for medical examination on police requisition. Of course, it is settled principle of law that unless medical evidence in its term does not completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. Every minor variation or inconsistency would not tilt the balance of justice in favour of the accused. However, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, the same may provide an advantage to the accused. In case of glaring discrepancies between the ocular and medical evidence, it is the duty of the prosecution to explain the same and if it fails to explain the discrepancies, the same may result in seriously denting the case of the prosecution in its entirety and benefit of doubt has to be given to the accused. It is not dispute that there was civil dispute between the parties and the witnesses to the occurrence examined by the prosecution were in inimical terms with the appellant. It is not dispute that there was civil dispute between the parties and the witnesses to the occurrence examined by the prosecution were in inimical terms with the appellant. When they have exaggerated their version relating to the manner of assault by the appellant and their evidence is not corroborated by the medical evidence and it is really difficult to separate the grain from the chaff, it cannot be said that the prosecution has successfully established the charges under sections 307 and 323 of the Indian Penal Code against the appellant beyond all reasonable doubt. Accordingly, the Jail Criminal Appeal is allowed. The impugned judgment and order of conviction of the appellant and the sentence passed thereunder is hereby set aside and the appellant is acquitted of both the charges under sections 307 and 323 of the Indian Penal Code. It appears from the case records that the appellant was taken into custody in connection with this case since 19.03.2015 and he was never released on bail either during trial or during pendency of the appeal and as such he has remained in custody for more than six years and four months. The appellant shall be set at liberty forthwith, if his detention is not otherwise required in any other case. Before parting with the case, it will be appropriate to quote a few lines from the decision rendered by Hon'ble Supreme Court in the case of Babu Singh -Vrs.- State of Uttar Pradesh reported in A.I.R. 1978 SC 527, in which Hon'ble Justice V.R. Krishna Iyer while speaking for the Bench observed as follows:- '4Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to 'fair trial', whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable times and the innocent being absolved from inordinate ordeal of criminal proceedings. This is by the way, although it is important that judicial business management by engineering, not tinkering, so as to produce efficient expedition, is an urgent, high-priority item on the agenda of Court reform, to be radically undertaken none too soon'. This is by the way, although it is important that judicial business management by engineering, not tinkering, so as to produce efficient expedition, is an urgent, high-priority item on the agenda of Court reform, to be radically undertaken none too soon'. There are many reasons for which even after admission of a criminal appeal against conviction where the appellant is in judicial custody, is not taken up for final hearing for quite a number of years. Sometimes, the convicted person serves out his full term of imprisonment awarded by the trial Court before his appeal is taken up for hearing. Such appeals are also sometimes allowed and the appellants are acquitted of all the charges as it has happened in this case. Even the Court does not compensate for the incarceration of the appellants for so many years after an order of acquittal is passed. No one can restore the lost years to such appellants. A serious rethinking from all the stakeholders of justice delivery system, joint effort and active support and participation from the learned members of the Bar will pave the way for quicker disposal of the cases and may provide some soothing reliefs to those persons who are languishing in jail for a considerable period awaiting the final adjudication of their appeals. Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.