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2022 DIGILAW 270 (ORI)

Bulu @ Umesh Chandra Rath v. State of Orissa

2022-07-11

SAVITRI RATHO

body2022
JUDGMENT : Savitri Ratho, J In this revision the petitioner-Bulu @ Umesh Chandra Rath has challenged the judgment and order dated 20.04.2005 passed by the learned Sessions Judge, Koraput, Jeypore in Criminal Appeal No.57 of 2004 confirming the conviction and sentence of the petitioner for commission of offence under Section 354 Indian Penal Code (in short “IPC”) while acquitting him of the offences under Section – 294/341 and 506 IPC vide judgment and order dated 27.05.2004 passed by the learned Chief Judicial Magistrate-cum-Asst. Sessions Judge, Jeypore in Sessions Case No.40 of 2001 and converting his conviction under Section 307 IPC to one under Section – 308 IPC and modifying the sentence to R.I for three years in default to undergo SI for one month with a direction for the sentences to run concurrently. The learned trial Court had convicted the petitioner of the offences under Section – 294/341/506/354 and 307 IPC and sentenced him to undergo R.I. for four years and to pay fine of Rs.1,000/-, in default, to R.I. for three months for the offence under Section 307 I.P.C. and to undergo simple imprisonment for one month for the offences under Sections 294/341/506 and 354 I.P.C. with a direction for the sentences of imprisonment to run concurrently. 2. The prosecution case in brief as that on 29.07.2001 at about 11.00 A.M. when Satyabhama Sahu, W/o-Sankar Sahu of Surya Mahal, Jeypore was alone in her house, the petitioner-accused came there and enquired about her husband, when the informant said that her husband is not present in the house, the accused-petitioner abused her in obscene language and caught hold of her hair and pushed her and demanded money, which the informant also paid him. Then accused left her house. After sometime when her husband reached the house, she narrated the entire facts before him and then both of them (husband and wife) went to the house of the accused and told the wife of the accused about the over act committed by her husband. Then the accused assaulted the husband of the informant on his face by means of a broken glass bottle causing bleeding injury in his eye and cheek. She took her husband in an Autorickshaw to the hospital for treatment and lodged F.I.R. at about 4.45 P.M. on the same day and leading to registration of Jeypore Town P.S. Case No.110/01. 3. She took her husband in an Autorickshaw to the hospital for treatment and lodged F.I.R. at about 4.45 P.M. on the same day and leading to registration of Jeypore Town P.S. Case No.110/01. 3. During investigation the I.O. visited the spot, examined the witnesses, sent the injured for medical examination and submitted the charge sheet against the accused-petitioner under Sections 341/294/354/324/307/506 and arrested the accused-petitioner. 4. The defence plea was one of complete denial. 5. The prosecution has examined 9 witnesses to prove its case, but no witness was examined on behalf of the accused. P.W.1-Ganesh Mishra, P.W.2 Raghunath Sahu have denied knowledge about the occurrence and were declared hostile by the prosecution. P.W.3 Padmalaya Patnaik @ Reeta has stated that she does not know the accused or injured nor anything about the occurrence and P.W.4-P.Srinivas Rao has stated that he knows the accused but does not know P.W 8 and 9 and knows nothing about the case. P.W.5-Dr. K.K.Sarkar has examined the injured P.W.9 on 29.7.2001. P.W.6 Rama Krushna Pati, S.I. of police and P.W.7 Ahibhushan Jena are the two I.Os and the former took over the investigation from the latter and submitted chragsheet. P.W.8 Satyabhama Sahu is the wife of the injured P.W.9 Sankar Sahu. 6. Smt. Mishra, learned counsel for the petitioner has submitted that the petitioner has been falsely implicated on account of prior enmity which is apparent from the fact that apart from P.W 9 who is the injured and P.W.8 his wife, no other independent witness has supported the prosecution case. P.Ws.1 and 2 the alleged eye witnesses have been declared hostile while P.Ws.3 and 4 have stated that they know nothing about the case. Since P.Ws.8 and 9 are interested witnesses and their evidence is full of discrepancies, it would be unsafe to convict the petitioner by relying on their evidence. She has also submitted that when the learned appellate court acquitted the petitioner of the offences under Section 341, 294 and 506 IPC, on account of discrepancy in the evidence of P.W 8, he should have been given the benefit of doubt and acquitted of all offences. She further submits that P.W.9 has stated about P.W.8 telling him that the accused had abused her but not about assault, so he should not have been convicted of the offence under Section – 354 IPC basing on the evidence of P.W.8 only. She further submits that P.W.9 has stated about P.W.8 telling him that the accused had abused her but not about assault, so he should not have been convicted of the offence under Section – 354 IPC basing on the evidence of P.W.8 only. She has also submitted that the petitioner should be acquitted from the offence under Section – 308 IPC as the evidence for commission of the said offence is lacking and there are a number of discrepancies in statements of P.W 8 and P.W.9. Her alternate submission is that in case the conviction of the petitioner is confirmed, as the petitioner has remained in custody for about three months and more than 17 years have elapsed it would be a travesty of justice to send him back to custody after lapse of 17 years. She has submitted that petitioner was arrested on 26.05.2004 after execution of NBW. On 24.06.2004, the learned Appellate Court allowed his prayer for bail. On 20.04.2005 judgment was pronounced in the appeal and he was arrested on 19.05.2005 and remanded to custody. On 13.07.2005 he was granted bail by this Court and there is no allegation that he has misused this liberty. However on perusal of the ordersheets of the learned SDJM Jeypore in G.R. Case No. 427 of 2001, the learned C.J.M -cum-Assistant Sessions Judge, Jeypore in Sessions Case No 40 of 2001, the learned Sessions Judge, Koraput, Jeypore in Criminal Appeal No. 57 of 2002, it is forthcoming that the petitioner had been arrested and produced before the learned S.D.J.M., Jeypore on 16.08.2001. On 13.02.2002 the petitioner was released on bail pursuant to order passed by the learned Sessions Judge, Koraput, Jeypore vide order dated 06.02.2002 passed in CRMC No. 19 of 2002. On 06.04.2004 when judgment was to be pronounced, he was absent for which NBW of arrest was issued against him. On 26.05.2004 the petitioner was produced in custody on the strength of NBW executed by the I.I.C., Jeypore. On 27.05.2004 the learned Chief Judicial Magistrate -cum-Asst. Sessions Judge, Jeypore passed the judgment and order of conviction against the petitioner in Sessions Case No.40 of 2001 and remanded the petitioner to custody. On 24.06.2004, the learned Appellate Court allowed his prayer for bail. On 27.05.2004 the learned Chief Judicial Magistrate -cum-Asst. Sessions Judge, Jeypore passed the judgment and order of conviction against the petitioner in Sessions Case No.40 of 2001 and remanded the petitioner to custody. On 24.06.2004, the learned Appellate Court allowed his prayer for bail. After the appeal was dismissed vide judgment and order dated 20.04.2005, the petitioner was produced in custody on the strength of NBW executed by the I.I.C., Jeypore Town on 19.05.2005 and remanded to jail custody. On 13.07.2005 the petitioner was granted bail by this Court. The petitioner has thus remained in custody for more than seven months. 7. Mr. S.S. Pradhan, learned Additional Government Advocate submits that the petitioner has been rightly convicted for the offences under Section 354 and 308 I.P.C. The evidence of P.Ws.8 and 9 being reliable and having been corroborated by the evidence of the Doctor and in view of the nature of injuries sustained by the P.W.9, the petitioner has been rightly convicted under Section – 308 I.P.C. His further submission is that the learned Appellate court has already granted indulgence to the petitioner by modifying the conviction from Section – 307 IPC to one under Section 308 IPC and reduced the sentence to three years and further interference is not warranted as the injured has lost eyesight in one eye on account of the assault by the petitioner. 8. In view of the above submissions, it is necessary to peruse the evidence of P.W.5, P.W.8 and P.W. 9. P.W.8-Satyabhama Sahu is the informant. She has corroborated the contents FIR and has further stated that soon after arrival of the accused in her house he said that he has to receive some money from her husband. When he asked him to wait, he said that she has concealed him in the house and abused and pushed her. She paid Rs.2,000/-to him but he threw it over her. Later he took the money and went away. Sometime thereafter, he sent another man who stated that the cash already paid was short. When she paid the amount the accused pulled her saree on the road. After arrival of her husband, she narrated the incident and both of them went to the house of the accused to confront him and while returning the accused assaulted her husband by means of a broken Sodha bottle causing bleeding injury in his left eye. When she paid the amount the accused pulled her saree on the road. After arrival of her husband, she narrated the incident and both of them went to the house of the accused to confront him and while returning the accused assaulted her husband by means of a broken Sodha bottle causing bleeding injury in his left eye. She stated to have lodged FIR (Ext.2). In cross-examination, she stated that none of the neighbourers was present at the time when the accused came and demanded cash. She denied the fact that as they were in arrear of cash and the accused has been falsely implicated in the case. P.W.9-Sankar Sahu is the injured. He has stated that when he arrived in the house at 1.30 P.M., his wife informed that the accused had come to his house at 11 A.M. and demanded cash. He got to know from his wife that she has already paid Rs.1840/-to the accused but the latter abused her in filthy language. After hearing from his wife, both of them went to the house of the accused at 4.00 P.M. for confrontation. While returning, the accused person suddenly assaulted him by means of a broken soda glass in his left eye causing bleeding injury. P.W.5-Dr. K.K.Sarkar stated that on 29.7.2001, he examined the injured namely Sankar Sahu and found two lacerations on his left eye brow and left cheek which were simple in nature and might have been caused by hard and rough object. As the patient complained severe pain his eye, he was referred to District Headquarters Hospital, Koraput for further treatment. On 14.8.2001, he received the report from District Headquarter Hospital, Koraput that there was rupture of cornea and prolapse of iris resulting in complete blindness. This injury was grievous in nature. In cross-examination, the doctor stated that the injuries are possible by fall on a blunt and rough surface. 9. As regards the commission of offence of Section 308 IPC, the evidence of P.Ws.8 and 9 regarding assault on P.W.9 by the petitioner suffers from no infirmity. It is supported by the evidence of P.W.5 the Doctor. Except for suggestion given to the witnesses, there is no evidence on record that P.W.9 had fallen down and injured his eye. 9. As regards the commission of offence of Section 308 IPC, the evidence of P.Ws.8 and 9 regarding assault on P.W.9 by the petitioner suffers from no infirmity. It is supported by the evidence of P.W.5 the Doctor. Except for suggestion given to the witnesses, there is no evidence on record that P.W.9 had fallen down and injured his eye. There is also no reason as to why the P.Ws.8 and 9 will implicate an innocent person and allow the actual culprit to go scot free. Although there are minor discrepancies in the evidence of P.W 8 and P.W.9, as some discrepancies are bound to appear in the evidence of witnesses due to normal errors of observation and in memory due to lapse of time. But since they are not of such a magnitude so as to reject their evidence in its entirety. In the present case, the trial court after examination of the evidence or record had convicted the petitioner for commission of offences under Sections – 294, 341, 354, 506, 341 and 307 IPC but the learned Appellate Court after scrutinising the evidence and considering the ingredients necessary for conviction for the offences, has acquitted the petitioner of the offences under Sections – 294/341 and 506 IPC and converted the conviction under Section – 307 IPC to one under Section 308 IPC. 10. After careful perusal of the judgment of the learned Appellate Court, I do not find any infirmity in it so as to warrant any interference in the same and hence confirm his conviction for the offence under Sections -308 and 354 IPC. But as far as the sentence is concerned as the petitioner has remained in custody for more than seven months, the sentence is modified and reduced to the period already undergone and the fine imposed for the offence under Section – 308 IPC is modified and is enhanced to Rs 5,000/-(Rupees five thousand only) in default to undergo S.I for a period of four months. Out of the said amount, an amount of Rs 4,000/-(Rupees four thousand only) shall be paid to the injured P.W.9 Sarat Sahu. The fine shall be paid within a period of three months. 11. The Criminal Revision is accordingly disposed of. 12. The Lower court records be sent back forthwith. 13. Urgent certified copy of the order be granted on proper application.