State of Orissa vs Krushna ' Utkal Keshari Sahu

A.K. Parichha, J.—This appeal by the State u/s 378(1) of the Code of Criminal Procedure is for setting aside the order of acquittal of the Respondent recorded by the learned Asst. Sessions Judge, Talcher in S.T. No. 42-D of 1986.

The facts and circumstances leading to the present appeal are as follows:

Talcher P.S. Case No. 30 of 1986 was registered basing on the allegation of the informant, P.W. 13, who was the Senior Mining Officer and Special Executive Magistrate, Talcher that on 28.2.1986 at about 11.30 A.M. while he was performing his official work inside his office room, the accused - Respondent rushed inside his room armed with a lathi uttering threats and dealt three blows on him with the lathi causing injuries on his head and hand. Some of the office staff, who were present inside the room and nearby caught hold of the Respondent and also took P.W.13 for medical treatment. On receiving such report, the O.I.C., Talcher Police Station, investigated into the matter and submitted charge-sheet against the Respondent for the offence under Sections 452, 353 & 307, Indian Penal Code. After commitment, the case was transferred to the court of learned Asst. Sessions Judge, Talcher where charge was framed for the above noted offences and trial was begun.

The plea of the Respondent was one of denial and false implication.

The prosecution examined 14 witnesses and proved the injury report, chemical examiner''s report, seizure lists, FIR, zimanama, spot map etc., which were marked as Exts. 1 to 10. Some material objects including the weapon of offence, lathi, were also produced. The Respondent did not adduce any oral or documentary evidence. The learned trial Judge after considering the evidence on record, came to hold that, the charges were not established. He accordingly, recorded an order of acquittal in favour of the Respondent. The said order is under challenge in the present appeal.

Mr. A.K. Mishra, Learned Standing Counsel for the State-appellant submitted that the evidence of P.W.13 is natural and reliable and the same is also corroborated by the evidence of the eye witnesses P. Ws. 4 & 9, the doctor, P.W.1 and some of the post-occurrence witnesses. According to him, in the face of such reliable evidence, there was no justification on the part of the learned trial Judge to record an order of acquittal.

Mr. G. Mishra, learned Counsel appearing for the Respondent, on the other hand, submitted that there was hostile feeling between P.W. 13 and the Respondent and P.W.13 being the controlling officer was always harassing the Respondent and in order to see that the Respondent is removed from service, he created a false case with the help of some of the office staff. He submitted that in such background when the eyewitnesses and the circumstantial witnesses turned hostile and did not support the prosecution case, there was hardly any scope for the trial court to rely on the un-corroborated version of P.W.13 and record an order of conviction. In substance, Mr. Mishra supported the judgment of the trial court.

In view of the rival submission of the learned Counsel for the parties, it becomes necessary to examine the evidence on record afresh.

P.W.13, the informant, stated that on the date of occurrence while he was working inside his office room in presence of P. Ws. 4 and 9, the Respondent suddenly entered inside the room uttering threats and dealt three lathi blows. He stated that the first lathi blow caused bleeding injury on his head, the 2nd lathi blow caused injury on his left thumb when he tried to save his head from that blow and the 3rd blow fell on his table glass breaking the same into pieces. He stated that P.W. 9 and other staff members, who were present, caught hold of the Respondent and later they also took him (P.W.13) to the guest room and thereafter to the hospital. The doctor, P.W.1 stated that on 28.2.1986 P.W.13 was brought to FCI hospital where he found lacerated wounds 5 cm. x 1/4 cm x 1/4 cm on the vertex and tenderness on the left thumb. According to him, both the injuries were caused by hard and blunt object, such as, lathi. On the score of existence of the above noted injuries, no cross-examination has virtually been made. So, the evidences of P. Ws.1 & 13 clearly established that there was lacerated bleeding injury on the head and one swelling and tenderness on the left thumb of P.W.13. The next question was whether those injuries were inflicted by the Respondent and whether he did so with the intention of causing death of P.W.13.

P.W.13 has clearly stated that the Respondent rushed into his office room uttering threats and dealt three lathi blows aiming at him and that the first blow fell on his head, the 2nd blow fell on his left thumb when he tried to protect himself from that blow and the 3rd one fell on the table glass. He also stated that P. Ws. 4 & 9 were present in the room and P.W. 9 with the help of other staff caught hold of the Respondent. P. Ws. 4 & 9 in their evidence before the court did not whole-heartedly support the prosecution, but their evidence substantially corroborated the version of P.W.13 P.W. 4 stated that on 28.2.1986 at about 11.30 A.M., he was there near P.W.13 inside the office room of P.W.13 and that while he was showing some documents relating to rate of coal, he suddenly found blood streaming from the head of P.W.13 and also noticed the table glass breaking into pieces. According to him, out of nervousness he came out of the room and saw P.W.9 catching hold of the accused- Respondent and also saw that the Respondent was holding the lathi like M.O.I in his hand. He further stated that he rushed and informed other office staff about the incident and the office staff took P.W.13 to the staff room where some first aid was given. P.W.9 stated that on the date and time of occurrence, when he was inside the office room of P.W.13 at that time, the Respondent or some body entered inside the room and dealt lathi blow on P.W.13. He stated that he immediately caught hold of that man from backside and while doing so heard P.W.13 saying "Krushna to Aiea kalu". He stated that he dragged the assailant to the verandah whereafter some office staff took that man from him. Answering to the question of the court, the witness also stated that he saw that the table glass on the table of P.W.13 breaking into pieces due to lathi blow. A close reading of the evidence of P.W.9 would indicate that he is some how trying to shield the Respondent for which he is not coming out with clean statement. In any case, his evidence along with the evidence of P.W.4 reveal that the Respondent was the person, who entered inside the office room and dealt the lathi blows. Some other office staffs like P. Ws. 3, 5 & 6 also stated about bleeding injuries on the head of P.W.13 at the relevant time. P.W. 14, the I.O. stated that he seized the lathi, blood stained clothes of the informant and the handkerchief, which was pressed into the injury on the head to check the bleeding the broken glass pieces etc. and these evidences have not been challenged by the Respondent.

The evidence of P.W. 13 was thus substantially corroborated by the medical evidence, the FIR, statements of P. Ws. 4 & 9 and also by the evidence of post-occurrence witnesses, namely, P. Ws. 3, 5, & 6.

The plea of the Respondent was that P.W.13 was ill-disposed towards him and in order to harass him and remove him from service, he master minded a false case. To establish this aspect, he relied on some past conduct of P.W.13 and evidence of hostile witnesses. Learned trial court relying on those evidence passed a remark that P.W.13 is not a reliable witness. On close reading of the entire evidence available on record, it can be clearly seen that P.W.13 did not mastermind a false case against the Respondent, rather the Respondent tried to substantiate a false plea through hostile witnesses. It is remembered that P.W.13 had no strong motive to falsely implicate the Respondent. On the other hand, because of official action taken by P.W. 13, the Respondent had a strong motive to attack P.W.13 as a measure of revenge. The injuries on the person of P.W.13 would not have been there, the glass on the table would not have broken into pieces, the office staff would not have caught hold of the assailant, the blood stained clothes and weapon could not have been seized, if the entire incident was false and fake one. The evidences on record were rather clinching that the Respondent trespassed into the office room of P.W.13 and voluntarily caused injuries to P.W.13 with the lathi blows.

The next question is whether the Respondent attacked P.W.13 with the lathi with the intention of causing the latter''s death. Though P.W.13 has stated in the evidence that the Respondent while entering into the office room uttering threat that he would kill him, the said aspect was not mentioned in the F.I.R. or in his statement before the I.O.P. Ws. 4 & 9 also did not state that the Respondent while dealing the blows shouted that he would kill P.W.13. The doctor, P.W.1, who examined P.W.13 stated that the injuries were simple in nature and were not likely to cause death in ordinary course. Considering these factors, it cannot be inferred that the Respondent dealt the lathi blows with the intention of causing dealt to P.W.13. So, the act of the accused- Respondent as revealed from the evidences on record would amount to an offence u/s 323, Indian Penal Code and not an offence u/s 307, Indian Penal Code. It is clearly there in the evidence on record that when P. Ws. 4 & 13 were performing official work inside the office room of P.W.13, Respondent entered inside the room with a lathi and attacked P.W.13. It is also there in the evidence that as a result of such act of the Respondent, the office work was hampered and the office went into a chaos. The act of the accused-respondent would also bring him within the ambit of Section 353, Indian Penal Code. However, since the Respondent is admittedly a staff of the office of the Senior Mining Officer, Talcher, his entry in the office room may not strictly attract the provision of Section 452, Indian Penal Code.

For the reason stated above, the conclusion of the trial court that the charges were not established against the Respondent is not in consonance with the evidence on record and the order of acquittal is therefore, unsustainable. So, in the result, the order of acquittal passed by the trial court is partly set aside and the Respondent is held guilty of the offence under Sections, 323 & 353, Indian Penal Code.

Mr. Goutam Mishra, learned Counsel appearing for the Respondent submitted that the incident took place about twenty years back and after all these years it will cause extreme hardship if the Respondent is now sentenced to any jail term. Further submitted that considering the background of the case, the Respondent deserves the benefit of probation of Offenders Act. In support of the contention Mr. Mishra cited the case of Rajbir Vs. State of Haryana, . In that case the accused was convicted for the offence u/s 323, Indian Penal Code and was sentenced to undergo S.I. for six months. Since he had already suffered over one year imprisonment, benefit of Section 3 of the probation of Offenders Act was extended. In the present case, the Respondent is a staff of Senior Mining Officer and the background of the case shows that out of frustration he attacked P.W.13 at the spur of the moment. He has remained in custody for 2-3 days as U.T.P. in the case. Now, if he is sent to jail, he is likely to loose his service.

All these factors, no doubt, prompt this Court to take a lenient view in the matter of sentence. But the case cannot be equated with Rajbir''s case (supra) and the benefit of Section 3 of the Probation of Offenders Act cannot be given to the Respondent. Considering the fact that the jail sentence may entail in removal of the Respondent from service, I consider that a fine sentence would meet the ends of justice. The Respondent is accordingly sentenced to pay a fine of Rs. 1000/- (One thousand) in default to undergo S.I. for a period of 15 days on each count of conviction under Sections 323 & 353, Indian Penal Code.

The Government Appeal is accordingly partly allowed.

Govt. Appeal Partly allowed.