Rabindra Panigrahi vs State Of Orissa & Others

S.S. Mishra, J.

The present Criminal Revision has been filed by the petitioner, who was the informant, challenging the order of acquittal passed by the learned Additional Sessions Judge (FTC-I), Bhadrak in Criminal Appeal Nos.08 & 09 of 2004 against all the accused persons for the offence charged under Section 307 of the IPC and also by questioning the sentence awarded to the petitioners in so far as the charges U/s 324/34 IPC are concerned.

In the present case three accused persons were put to trial for the alleged commission of offences under Sections 341/307/326/324/34 of the IPC. The three accused persons are Manmohan Panigrahi, Srinibas Panigrahi and Karunakar Mahakud.

The prosecution case in brief was that on 07.09.2001 at about 7.00 P.M, Sridhar Panigrahi (the injured )while returning to his house in a cycle from Charampa market through the canal road, near the bridge connecting to his village, suddenly accused persons, namely, Tika @ Srinibas and Karunakar @ Sandri focused torch to his face, he fell down from the cycle. At that juncture, accused Karunakar attacked with a bhujali, which hit his left side of forehead. When the injured was trying to escape, another accused person, Srinibash attacked with a farsa which hit his throat. Even after such assault, the injured tried to escape from the spot, but at a little distance, he was restrained by another accused person Manmohan, who pushed him. Thereafter, Manmohan left the place saying to the other accused persons “KAKA MORO KAMA SARIGALA TUMBHE TUMBHA KAMA SAMBHALA”. Thereafter other two accused persons assaulted the injured person mercilessly by means of farsa and bhujali. Both the accused persons left the place saying “TU ETHARA UPARAKU JAA, AMBHE DELHI JAUCHU”. After sometime, the injured person shouted “MARIGALI MARIGALI”. Hearing hulla, villagers came to the spot and the injured narrated the incident before them. Thereafter, the injured was taken to the hospital for treatment.

The brother of the injured came to know about the incident and lodged a written report before Bhadrak (R) Police Station. On the basis of the said report, police registered Bhadrak(R) P.S Case No.178 of 2001 corresponding to G.R Case No. 948 of 2001 corresponding to S.T Case No. 99/110 of 2002 against the accused. After completion of investigation, police submitted the charge sheet against the accused persons under Sections 341/323/326/307/34 of IPC and charge was framed against the accused persons under those sections. The accused persons were put to trial.

To bring home the charges, the prosecution examined as many as 11 witnesses and exhibited 8 documents. The plea of defence was that of completely denial. In proof of their plea, defence exhibited three documents.

The learned trial Court vide the judgment and order dated 12.03.2004 convicted all the accused persons for commission of offences under Sections 341/ 326/ 324/ 307/ 34 of the IPC and sentenced them to undergo R.I. for a period of five years for charges under Sections 307/326 of the IPC, to undergo R.I. for a period of fifteen days for the offence under Section 341, undergo R.I. for a period of one year for the offence under Section 324 of the IPC. They were also sentenced to pay fine of Rs.1,000/- each for the offences under Sections 307/326 of the IPC, in default to undergo further R.I. for three months. The sentences were directed to run concurrently.

The opposite party no.2 Manmohan Panigrahi filed Criminal Appeal No.8 of 2004 against the aforementioned conviction and sentence, whereas opposite party nos.3 & 4 Srinibas Panigrahi and Karunakar Mahakud have filed jointly the Criminal Appeal No.09 of 2004. Both the appeals were heard analogously and a common judgment dated 03.06.2011 was passed by the learned Additional Sessions Judge, FTC-I, Bhadrak. Criminal Appeal No.8 of 2004 filed by the opposite party no.2 was allowed and opposite party no.2 was acquitted from all the charges. However, Criminal Appeal No.9 of 2004 preferred by opposite party nos.3 & 4 was partly allowed. The conviction and sentence passed against them under Sections 341/307/324/34 of the IPC were set aside and they were only convicted for the offences under Sections 326/34 of the IPC. The learned Court reduced the substantive sentence of five years for the offences under Sections 326/34 of the IPC to that of a period already undergone and enhanced the fine to Rs.5,000/-.

The learned appellate Court vide its judgment and order dated 30.06.2011 has modified the sentence by partly allowing the appeal inter alia stating as under para-21-;

“21. As a result of the aforesaid discussion, the criminal appeal filed by appellant Manamohan Panigrahi bearing No. C.A. No.8/04 is allowed. The appeal filed by the appellants Srinibas Panigrahi and Karunakar Mohakud in C.A. No.9/04 is allowed in part. The conviction and sentence imposed upon the appellant Manmohan Panigrahi by the trial court for the offences U/s.307/324/326/341/34 IPC are hereby set aside and he is acquitted from the charges. The conviction and sentence passed against the appellants Karunakar Mohakud and Srinibas Panigrahi U/s.341/307/324/34 IPC by the trial court are set aside and the appellants are acquitted from the said charges. However, I find that the conviction imposed on the appellants Karunakar Mohakud and Srinibas Panigrahi by the trial court holding them guilty U/s 326/34 I.P.C.”

The petitioner being the informant, is seeking restoration of the judgment and order passed by the learned trial Court and seeks setting aside the order of the learned appellate Court in the present revision petition.

The prosecution in order to bring home charges against the private opposite parties in the present case examined 11 witnesses. P.W.1 is the informant and is the petitioner in the present case. P.W.2 is the injured/victim of the case. P.Ws.3,4, & 6 are the post occurrence witnesses, whereas P.W.5 was examined by the prosecution to prove the seizure. P.Ws.7,8 & 9 were the Doctors, those who examined the injured P.W.2. P.W.11 was the I.O. of the case. One of the vital witnesses examined by the prosecution is P.W.9, who happens to be the eye-witness to the occurrence.

The learned trial Court after analyzing the ocular evidence of all the witnesses, came to the conclusion that the prosecution could prove its case beyond all reasonable doubts. The learned trial Court primarily relied upon the testimony of P.W.9 and derived corroboration from the testimony of P.Ws,7 & 8, and concluded that the accused persons had indeed assaulted P.W.2 and caused cut injuries out of which some were grievous in nature. The learned Trial Court taking into consideration the nature of injuries sustained by PW 2 and weighing the corroborative evidences and narration of the sequence of event by P.W.2, the injured, recorded the conviction against the accused persons. Much importance was not supplied to the evidence of P.Ws.1,3,4 & 6 as they were the post occurrence witnesses. The leaned trial Court while convicting the accused persons had imposed the sentence in the following terms:

“20. After hearing the Ld. Counsels and going through the above cited decision and also taking into consideration the facts and circumstances of the case, manner and style of commission of the offences, weapons used, the nature of the injuries caused and also taking into consideration the fact that in the present days such offences are being committed in-variably due to nasty village politics, therefore, I entirely agree with the contention of the Ld. Addl. P.P. that no lenient view should be exhibited while awarding sentence. Hence, each accused-convict is sentenced to rigorous imprisonment for a period of five (5) years each for the offences U/s.307/326 of I.P.C., imprisonment for fifteen (15) days for the offence U/s.341 of the I.P.C., rigorous imprisonment for a period for a period of one (1) year for the offence U/s.324 of the I.P.C. Each of accused-convict is sentenced to pay a fine of Rs.1,000/- (Rupees one thousand only) for the each offence, i.e., U/s.307 of the I.P.C. and U/s.326 of the I.P.C., in default, to undergo for rigorous imprisonment for three (3) months for each offences. All the sentences are to run concurrently. The period of detention in the jail custody by the convicts be set off U/s. 428 of Cr.P.C.”

As mentioned before two Appeals were preferred by the accused persons separately, the learned Appellate Court vide a common judgment and order dated 30.06.2011 allowed CA No.8 of 2004 filed by Manmohan Panigrahi and partly allowed Criminal Appeal No.9 of 2004 filed by Srinibas Panigrahi and Karunakar Mahakud. The reasoning recorded by the appellate Court while acquitting one accused person and modified the conviction of the other accused persons is reflecting in its judgment at Paragraph-15 which reads as under:

“15. I now security the evidence of witnesses to find out whether the appellants Srinibas Panigrahi and Karunakar Mohakud have committed an offence punishable U/s.307/34 IPC ? Having gone through the evidence of the injured and other witnesses, there is sufficient material to show that these appellants assaulted injured Sridhar Panigrahi by means of sharp cutting weapons and caused injuries on his person. Counsel for the appellants contended that the prosecution has failed to prove that these appellants have intended to murder the injured Sridhar Panigrahi. There is no evidence to show that the appellants had intention to murder and injuries were caused with the knowledge that the same would resulting death. In the instant case I have gone through the injury reports furnished by the Medical Officer Pws.7,8 and 10. These three witnesses have examined the injured after his admission into the hospital both at Bhadrak and SCB Medical College & Hospital, Cuttack. P.w.7, Medical Officer has recorded the statement of the injured as per request of the I.O. He recorded the dying declaration of the injured at 10.30 P.M night in the presence of Dr. Santosh Kumar Jena. P.w.7 had not stated regarding the nature and seriousness of the injuries sustained by the injured Sridhar Panigrahi. P.w.8 is another doctor who examined the injured on police requisition. He found as many as eight injuries on the person of the injured and submitted his report vide Ext.5. He further states that the injuries sustained by the injured are sufficient to cause death. If the injured was treated in time, P.w.8 has not stated that the condition of the injured Sridhar was very bad. There is no categorically statement in the medical certificate Ext.5 that injuries were infact dangerous to life. P.w.8 for the first time in the Court states that the injuries would have caused death as the patient was not treated in time. Further, I find that the evidence of P.w.10 revealed that she gave, treatment to the injured and the injured was discharged on 27.9.01. P.w.10 has also not stated that the injuries sustained by the injured were in fact dangerous to life. The other witnesses including the injured have not stated that the appellants had intention to cause his death or the appellants had knowledge that by dealing such blows they would have caused the death of the injured. Hence, I find that the prosecution evidence in this case failed to prove the charge U/s.307/34 of I.P. C against the appellants.”

The appreciation of the evidence by the appellate Court, in my considered opinion cannot be find fault with. The appellate Court primarily taken into consideration two aspects, namely, the quality of medical evidence and the evidence regarding lack of knowledge of the accused persons to have caused such life threaten injuries. The appellate Court had also taken note of the fact that the learned trial Court given much emphasis to the so called eye witness namely P.W.9. However, it was found that P.W.9 was not the resident of village to which the injured belongs. The said witness was examined by the I.O. after a long delay and other witnesses were post occurrence witnesses. Therefore, in fact there was no eye witness to the occurrence. In that scenario the appellate Court arrived at a conclusion that it is not safe for convicting the accused persons either for the offence under Section 307 of the IPC or of the offence under Section 326 of the IPC solely on the basis of the ocular version of PW 9. Therefore, the appellate Court convicted the accused persons for the offence under Section 326 of the IPC only while rightly acquitting the accused persons for other charges. While sentencing the accused persons, the appellate Court has taken into consideration the period custody the accused persons had already undergone. Therefore, the appellate Court rightly reduced the sentence to that of sentence already undergone by the accused persons. In so far as acquittal of opposite party no.2 is concerned enough reasoning has been recorded by the appellate Court and I am in agreement with those reasoning. Therefore, I am not inclined to alter the judgment passed by the learned appellate Court in so far as convictions are concerned. However, the sentence awarded against the opposite party nos.3 & 4 is liable to be altered in view of the fact that the incident had taken place two decades back and much has changed by now, therefore subjecting the petitioners to incarceration at the belated stage would serve no purpose, rather it would act as an impetus for causing further hostility between the accused persons and the victim.

Accordingly, the sentence of fine of Rs.5,000/-imposed by the learned appellate Court in lieu of the conviction U/s 326/34 IPC is enhanced to Rs.25,000/-(Rupees Twenty Five Thousand) each to be deposited by the accused persons within one month in default to undergo S.I. for a period of one month each.

The fine directed to be deposited by the accused persons, namely, Srinibas Panigrahi and Karunakar Mahakud to the tune of Rs.50,000/- (Rupees Fifty Thousand) in toto shall be disbursed to the injured Sridhar Panigrahi by way of compensation as per the provision contains under Section 357 of the Cr.P.C. The fine amount shall be disbursed by the accused persons within a period of one month from today in default the accused persons shall suffer a S.I. for one month each.

The Criminal Revision is accordingly partly allowed and disposed of.

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