Gupta Khara vs State Of Odisha

S. Pujahari, J

The order dated 21.09.2020 passed by the learned Sessions Judge, Malkangiri in Criminal Appeal No.8 of 2020 confirming the judgment and order

dated 23. 12.2017 passed by the learned C.J.M.-cum-Assistant Sessions Judge, Malkangiri in C.T. Case No.58 of 2017 convicting and sentencing the

petitioner under Sections 307/324/341 of I.P.C. is called in question by the petitioner through this Revision petition under Section 401 read with Section

397 of Cr.P.C.

Heard the learned counsel for both the sides and perused the relevant papers on record.

The case of the prosecution as unfolded during the trial is that on 16.04.2017 at about 10 A.M. while the Informant (P.W.3) was on his way back to

home in a motorcycle after purchasing grocery articles, the petitioner waylaid him and assaulted him by means of a knife causing multiple bleeding

injuries. It is further alleged that while two co-villagers, namely, Dhana Bagh (P.W.6) and one Basanta Khara were shifting the injured-informant to

hospital by a motorcycle, the petitioner inflicted cut injuries on the neck of the P.W.6 also by means of knife. Police registered a case on the F.I.R.

being lodged by the P.W.3 and on completion of investigation, submitted charge-sheet against the petitioner. The case on being committed to the Court

of Session was transferred to the court of the learned Assistant Sessions Judge, Malkangiri who framed charge against the petitioner under Sections

341/324/307 of IPC and tried him. The prosecution, in order to bring home the charge, examined eleven witnesses in toto and also produced

documentary evidence vide Exts.1 to 10. The weapon of offence, i.e.,the knife was also produced during the trial as M.O.III. The petitioner did not

choose to adduce any evidence in his defence. The learned trial Court on the basis of the evidence so adduced, held the petitioner guilty and convicted

him under Sections 307/324/341 of IPC with award of different terms of sentences.

The petitioner challenged the judgment and order of the trial Court before the learned Sessions Judge, by preferring Criminal Appeal No.8 of 2020.

The learned Sessions Judge vide his order dated 21.09.2020, on re-assessing the materials on record, upheld the conviction and sentences passed by

the trial Court against the petitioner. Hence, the present move by the convict-petitioner.

The learned counsel appearing for the petitioner submitted, inter-alia, that both the Courts below committed error in appreciating the evidence

produced by the prosecution, inasmuch as the contradictions and discrepancies apparent in the oral testimonies have not been taken into account. It is

contended by him that no weightage ought to have been given to the evidence of the P.Ws.2,3, 5 and 6 who being inter-related are highly interested

for the prosecution. According to him, the essential ingredients of the offence under Section 307 of IPC having not been made out, the conviction

under the said count is patently illegal. It is also submitted by the learned counsel that assuming for sake of argument that there was an incident of

assault attracting the offence under Section 324 of IPC, the Courts below instead of sentencing the petitioner ought to have applied the provisions of

the Probation of Offenders’ Act to him.

The learned counsel appearing for the State, per-contra, submits that the Courts below having recorded the findings on appreciation of the evidence

in right perspective, there is no scope for this Court to interfere therewith.

A perusal of the evidence of both the injured persons, namely, P.Ws.3 and 6 would reveal that they have stated in details about the assault and

infliction of injuries by means of knife. The other witnesses including the independent ones have lent ample corroboration to their testimony, and the

Medical Officer examined as P.W.7 has also lent assurance to the factum of injuries and use of knife in causing the injuries. As per the medical

evidence, the P.W.3 had received four external injuries including one incised wound on his person and the P.W.6 had received two incised wounds,

one of size 2 cm. x 1 mm x 2 mm on the front of his neck and the other of size 4 inches x 2 mm x 2 mm on the front of the right shoulder one inch

below the lateral head of the right clavicle. Both the said injuries, as per the medical opinion, were caused by sharp and thin weapon like knife. The

Courts below appear to have appreciated the evidence in right perspective to believe the prosecution case and bring home the charges to the

petitioner, inasmuch as there is nothing substantial on record much less at the instance of the defence side to suspect the credibility of the prosecution

witnesses or probative value of the prosecution version. Hence, this Court finds no reason to interfere with the conviction of the petitioner. Having

regard to the manner of assault, seats and nature of injuries inflicted and weapon of offence used, this Court finds no wrong with the Court below in

not considering applicability of the Probation of Offenders’ Act to the convict. At the same time, taking into consideration the totality of the facts

and circumstances, this Court feels that award of rigorous imprisonment of four years and imposition of fine of Rs.5000/- (five thousand), i.d. to R.I.

for two months, for the conviction under Section 307 of IPC and reduction of fine from Rs.5000/- to Rs.2000/- (two thousand), for the conviction

under Section 324 of IPC would meet the ends of justice. To put in other words, the petitioner is hereby sentenced to undergo R.I. for four years and

pay fine of Rs.5000/-, i.d., to R.I. for two months under Section 307 of IPC and undergo R.I. for three years and pay fine of Rs.2000/-, i.d., to R.I. for

one month under Section 324 of IPC. Both the substantive sentences shall run concurrently. The sentence part is modified accordingly.

With modification of the sentence as indicated above, the CRLREV stands disposed of. The petitioner- convict, if on bail, be sent back to jail to

suffer the modified sentence subject to the rule of set-off.

As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available

in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s

Notice No.4587, dated 25th March, 2020 as modified by Court’s Notice No.4798, dated 15th April, 2021.

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