State of Orissa vs Ramachandra Sahu

R.N. Biswal, J.—This appeal has been preferred u/s 378(1) and (3) of Code of Criminal Procedure against the judgment and order dated 31.10.1987 passed by the learned Chief Judicial Magistrate-cum- Asst. Sessions Judge, Berhampur in S.C. No. 9 of 1987 acquitting the accused-Respondent of the offence under Sections 307/294 of I.P.C.

Shorn of unnecessary details the case of the prosecution is that on 20.1.1987 at about 8.30 P.M. while P.W. 10, the S.I. of Town P.S. Berhampur was on traffic duty at Gate Bazar crossing, at that time the accused-Respondent along with another came in a Luna from Berhampur City Hospital side and moved towards M.K.C.G. Medical College keeping to the right in violation of the traffic rules. P.W. 5, a traffic constable in duty signalled the driver of the Luna to stop, but he defied the signal and tried to speed away. So P.W. 10 immediately rushed forward, stood in front of the Luna and demanded the relevant documents in connection with the vehicle from the driver. But he refused to show any document and abused him in filthy language. When P.W. 10 challenged it and caught hold of his hands to take him to the Police Station he snatched away his hands and pressed his neck for which his respiration was choked. In the meantime P.Ws. 5 and 6, two traffic constables and P.W. 7, Havildar of Bhapur out-post all of whom were performing duty nearby, came running to the spot and separated P.W. 10 from the clutches of accused-Respondent. In the same night P.W. 10 lodged a written report before the Inspector in-charge of Berhampur Town Police Station (P.W. 8) who registered the case and directed P.W. 11, the S.I. to take up investigation. In course of investigation the accused-Respondent was arrested and forwarded to Court, P.W. 10 was sent for medical examination, witnesses to the incident were examined and after completion of investigation charge sheet was submitted under Sections 307/294/332 of I.P.C. However, the accused-Respondent was charged for the offence under Sections 307/294 I.P.C. only and faced trial thereunder.

In order to prove its case prosecution examined 11 witnesses in all, of whom, P.Ws. 1, 2 and 3 said to be the eye witnesses to the occurrence turned hostile to the prosecution. Relying upon the evidence of P.Ws. 5, 6, 7, 9, 10 and the doctor P.W. 4 prosecution tried to establish its case before the Court below. But as there were contradictions and discrepancies in the evidence of P.Ws. and the I.O. did not seek for opinion of the doctor (P.W. 4) regarding possibility of the injuries found on P.W. 10 of being caused by finger nail, in an early date and the independent witnesses turned hostile to the prosecution, the trial Court acquitted the accused-Respondent as mentioned earlier.

Being aggrieved with the order of acquittal the State has preferred this appeal.

Learned Addl. Standing counsel submits that it is borne out from the evidence of P.W. 4, the doctor, that on 20.1.1987 he examined P.W. 10 and found two abrasions of size 3/4" in length on his neck. On 2.2.1987 he received requisition from the I.O. to opine whether those two injuries could be possible by finger nail to which he opined in affirmative. The learned trial Court disbelieved the evidence of P.W. 10 that those injuries were caused by accused-Respondent as there was delay in seeking the opinion of the doctor as to the possibility of those Injuries being caused by human nail, which is quite erroneous. He further submits that another ground for which the trial Court acquitted the accused-Respondent was that P.Ws. 5 to 9 are all police personnel and that they were interested to see that the case was ended in conviction. Admittedly P.Ws. 5 and 6 are two traffic constables. P.W. 7 is a Havildar and P.W. 9 is a constable of Bhapur Out-post and P.Ws. 8 and 11 are I.Os. Only because they are police personnel their evidence cannot be brushed aside altogether. The trial Court ought to have carefully scrutinized their evidence before discarding the same. It is further submitted by the learned Addl. Standing Counsel that the accused-Respondent was attempting to kill P.W. 10 by constricting his neck, but due to his good luck and because of intervention of P.Ws. 5 to 7 he could be escaped. So he ought to have been convicted for the offence u/s 307 of I.P.C. There is also material in the record to convict the accused-Respondent for the offence u/s 294 of I.P.C.

As found from the evidence of doctor (P.W. 4) the injuries found on the person of P.W. 10 were simple in nature. During cross examination it was elicited from him that had the force been more violent some more injuries might have been caused. So, from the opinion of the doctor and considering the facts and circumstances of the case, I am of the view that it is not a case u/s 307 of I.P.C. So, the trial Court rightly acquitted the accused-Respondent of the charge u/s 307 of I.P.C. Similarly it is found from the evidence on record that, besides the hostile witnesses, some of the other eye witnesses also did not whisper a word regarding uttering of obscene words by the accused-Respondent to P.W. 10. The actual words said to have been used also differ from witness to witness. So the Court below rightly acquitted the accused-Respondent of the charge u/s 294 of I.P.C. also. But as found from the evidence of P.Ws. 5 to 7 and 9 accused-Respondent pressed the neck of P.W. 10, P.W. 4 who medically examined the injured on the very date of occurrence noticed two abrasions on his neck which could be possible by finger nail. Only because there was delay of 13 days in sending requisition to P.W. 4 to give his opinion as to whether the injuries could be possible by finger nail, it cannot be said that those injuries were not caused by finger nail. The independent witnesses to the occurrence turned hostile to the prosecution. No doubt, the other occurrence witnesses are all police personnel. P.W. 10 the victim is also a police officer. So their evidence ought to have been scrutinized carefully but not brushed aside altogether. It is the duty; of Court to separate the grain from the chaff. P.Ws. 5 to 7 and 9 have stated that they saw the accused-Respondent pressing the neck of P.W. 10, P.W. 10 also stated that since the accused-Respondent pressed his neck he underwent treatment at City Hospital, Berhampur. When the ocular testimony has been corroborated by medical evidence, I am of the view that the accused-Respondent voluntarily caused hurt to P.W. 10 and as such would be liable for commission of offence u/s 323 of I.P.C.

Therefore, taking into consideration the facts and circumstances of the case, the judgment and order of acquittal passed by the C.J.M. Asst. Sessions Judge Berhampur is set aside only to the extent that the accused-Respondent is convicted for the offence u/s 323 of I.P.C. This is a case of the year 1987. In the meantime about 18 years have already been elapsed. So it would meet the ends of justice if the accused-Respondent is sentenced to undergo imprisonment for the period he has already undergone. Accordingly, the accused-Respondent is sentenced to undergo imprisonment for the period he has already undergone. He is not required to surrender.

In the result, the appeal is allowed in-part.