Orissa High Court
Bidesi Gouda vs State Of Orissa ....... Opposite Party on 20 June, 2024
THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.608 of 2011
(In the matter of an applications under Sections 401 read with Section 397 of
the Criminal Procedure Code, 1973)
Bidesi Gouda ....... Petitioner
-Versus-
State of Orissa ....... Opposite Party
For the Petitioner : Mr. B.P. Pradhan, Advocate
For the Opp. Party : Mr. B.K. Ragada,
Addl. Government Advocate
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 07.05.2024 : Date of Judgment: 20.06.2024
S.S. Mishra, J. The present Criminal Revision filed under Sections 401 r/w 397 of
Cr.P.C. is directed against the judgment and order dated 02.07.2011 passed by
the learned Addl. Sessions Judge, Bhanjanagar, Ganjam in Criminal Appeal
No.32 of 2004, whereby judgment of conviction and order of sentence passed
by the learned Asst. Sessions Judge, Aska, Ganjam in Sessions Case
No.34/2002 (S.C. No.426/2002 GDC) has been confirmed.
2. The Petitioner was subjected to prosecution in Aska P.S. Case No.32 of
2000 registered under Sections 294/326/307 of IPC.
3. The prosecution case in brief is that on 20.02.2000 at 10 A.M. there
was a quarrel in the village for which the informant and his brother Babula
were assaulted by one Pradip Patra and others for which they were treated in
the hospital. On the same day, at about 4 P.M., when the informant was going
from Gunthapada to Balichai village through a paddy field, three to four
villagers chased him holding Kati & Lathi and abused him in filthy language.
It is alleged that the petitioner assaulted him by means of Kati and Lathi on
different parts of his body and causing bleeding injuries, as a result of which
he fell down on the road and lost his senses. Others also assaulted him by the
weapons they were armed with. Thereafter all the accused persons left the
place thinking that the informant has died. After sometime, the informant
regained his sense and while proceeding on the road, I.I.C., Aska P.S., who
was on mobile duty detected him at about 10.30 P.M. and rescued him to
whom he orally reported the matter which was reduced into writing by the
I.I.C., Aska.
I.I.C. Aska P.S. treated that report as F.I.R, which was registered as
Aska P.S. Case No.32 of 2000. After completion of investigation, charge-sheet
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was submitted against the petitioner along with other accused persons under
Sections 294/326/307 of IPC. The learned trial court framed charges against
the petitioner and others. Since other accused persons remained absconded,
petitioner alone was put to trial.
4. To bring home charges, the prosecution had examined as many as 5
witnesses and 4 documents were exhibited. Out of them, the informant, who
was injured, was examined as P.W.2. Whereas the I.O was examined as PW3
who submitted the charge sheet, P.W. 4 was the then IIC of Aska P.S who
reduced the oral statement of the injured informant in writing, which was
treated as F.I.R. and P.W. 5 was the Doctor who examined the injured. The
plea of defence was that of complete denial. In proof of their defence, no
witness had been examined.
5. The learned trial Court analyzed the entire evidence on record and
found that the Petitioner was not guilty of the offence under Section 294 of
I.P.C, but found him guilty for the offences under Sections 307/326 of I.P.C.
and sentenced him to undergo R.I. for 7 years and to pay fine of Rs. 5,000/-
only, in default to undergo R.I. for one month on each count. However, the
substantive sentences were to run concurrently.
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6. The judgment of conviction and order of sentence dated 10.08.2004
passed by the learned Asst. Sessions Judge Aska, Ganjam in Sessions Case
No.34/2002 (S.C. No.426/2002 GDC) was called in question by filing
Criminal Appeal No.32 of 2004 before the Court of the learned Additional
Sessions Judge, Bhanjanagar, Ganjam, by the petitioner.
7. The petitioner has challenged the judgment/order of conviction and
sentence of both the Courts below in the present Revision Petition.
8. Heard Mr. B.P. Pradhan, learned counsel for the petitioner and Mr.
B.K. Ragada, learned Additional Government Advocate for the State.
9. Perused the impugned judgment of conviction and order of sentence
passed against the petitioner and meticulously evaluated the evidence on
record.
10. The case of the prosecution primarily hinges upon three witnesses
namely P.W.2, the injured/informant in the case, P.W.5, the doctor, who had
examined the injured, and P.W.4, the I.O. of the present case. Admittedly,
there was no eye witness to the occurrence. The Courts below had very
carefully analysed the evidence of the aforementioned three witnesses and
convicted the petitioner for the offences under Sections 326/307 of IPC.
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11. P.W.2, the victim/injured in his statement, inter alia, stated that one
Pradip Patra and five others assaulted his brother Babula Nayak. He had
informed the matter to the police. When he was returning after arranging the
treatment of his brother in the hospital, he was attacked by the present
petitioner along with one Abhi Bisoi, Pitabasa Gouda and Pana Patra. The
petitioner dealt a kati blow on his head whereas Abhi Bisoi dealt a kati blow
on his leg. Pitabasa Gouda assaulted him on his hand and Pana Patra dealt
with a blow on his back as a result of which the informant received 13 nos. of
incised bleeding wounds and 5 nos. of fractured wounds and was admitted to
the hospital for about 1 & ½ months. After the incident, he was lying in the
pool of blood in unconscious state. After gaining the senses, he crawled and
reached to the road. The patrolling police party rescued him and admitted him
in the hospital. This version of the witness directly corroborates with the
evidence of P.W.5, the doctor and also the testimony of P.W.4, the I.O. of the
case. On the basis of the aforementioned evidences on record, the trial Court,
inter alia, arrived at the following conclusion:-
"11. The evidence of the injured clearly receives corroboration
from the medical opinion so far as the nature, location, number,
weapon of offence used, age and the gravity of the injuries are
concerned. The evidence of the injured regarding the assault on
him by the accused by means of Kati to different parts of his body
clearly received support from the medical opinion, from P.W.4 an
independent responsible police officer who saw the injuries at the
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spot as well as from the investigation and from the facts and
circumstances of the case. His intension, as stated earlier, is very
much clear so also his motive. His intention was to kill the injured.
So that the injured cannot take revenge against the persons who
had assaulted his brother and to himself. Hence it is a clear case of
attempt to murder the injured. More over it is a clear case by
committing grievous injury by means of kati an instrument for
cutting. The injuries speaks for itself. The injuries are incised
injuries, cut injuries, bone deep injuries, fracture injuries which
were inflicted on vital parts of the body for which the injured has
to receive medical treatment for months together in the main
hospital, Berhampur. All these things clearly shows that the
accused had intended to commit murder of the injured in the broad
day light taking advantage of his unarmedness and loneliness. But
fortunately the injured survived due to the accidental arrival of
P.W.4 at the spot."
12. Eventually, on analysis of the evidence, the trial Court convicted the
petitioner for the offence under Sections 326/307 of the IPC and sentenced the
petitioner to undergo seven years R.I. and with a fine of Rs.5,000/- (Rupees
five thousand) and to undergo default sentence of one month R.I.
13. The petitioner took the matter to the appellate Court by filing Criminal
Appeal No.32 of 2004. The appellate Court also relied upon the
aforementioned three witnesses and had recorded that there was no scope for
doubting the version of these witnesses. Hence, the appellate Court maintained
the conviction and sentence passed by the learned trial Court. The appellate
Court, in its judgment has held as under:-
"5. Evidence is clear that on that day this appellant assaulted to
the informant by means of a kati causing multiple injuries on his
person. No such element was found in the evidence of P.W.2 as to
dis-credit him. Minor discrepancies are to be over looked and over
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much importance should not be given to them. It also appears from
the evidence on record that P.W.2 and his brother were assaulted
on the same day of the occurrence at about 10 A.M. and thereafter
at 4 P.M. this appellant assaulted him (P.W.2) by means of a kati
which is a sharp cutting weapon on his person and the appellant
due to the assault fell down on the ground and lost his sense. It
also appears from the evidence of P.W.5 that the doctor had found
13 injuries on the person of the injured, out of which two injuries
were grievous in nature and for these injuries the appellant was
medically treated as an indoor patient for about one and half
month in M.K.C.G. M.C.H., Berhampur. From all such facts and
circumstances it is crystal clear that the intention of the appellant
was to kill the informant. Taking the totality of ocular testimony
and medical testimony into account it was found that it has
successfully established that the appellant on that day assaulted to
the informant by means of a kati which is an instrument for cutting
on his head which is a vital part of his body with an intention to
kill him. Therefore, the learned Asst. Sessions Judge, Aska has
rightly convicted the appellant U/S. 307/326 I.P.C. and sentenced
him to undergo R.I. for seven years and to pay a fine of Rs.5,000/-
and in default to suffer R.I. for one month on each count. In
considering the facts and circumstances of this case the sentence is
also appropriate. In view of the aforesaid analysis, I find no
infirmity in the judgment passed by the learned Asst. Sessions
Judge, Aska in Sessions Case No.34/02.
6. In the result, the appeal is dismissed and the conviction
and sentence passed by the learned Asst. Sessions Judge,
Aska on 10.8.2004 in Sessions Case No.34/02 is confirmed."
14. I have gone through the entire evidence on record and weighed the
judgment of the Courts below vis-à-vis the evidence on record.
15. Learned counsel for the petitioner primarily argued on three basic
points apart from pointing out various discrepancies in the evidence of the
witnesses.
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The first argument in the present case was that, there was no eye
witness. Therefore, it was not safe to convict the petitioner in absence of an
independent eye witness version particularly for the reasons that there has
been an admitted history of animosity between the parties.
Secondly, learned counsel for the petitioner has pointed out that
although the F.I.R. was registered on 20.02.2000, but the same was forwarded
to the Court after six days i.e. on 26.02.2000. The delay of six days has not
been explained by the prosecution.
Apart from that the defence counsel has urged that in view of the severity
of the injuries alleged to have been sustained by the informant/injured,
affixation of the thumb impression in the F.I.R. by the injured is completely
doubtful. On the strength of the aforesaid points, he submitted that the entire
prosecution story was manipulated and the petitioner had been falsely
implicated by the injured in view of the past enmity between them.
Each and every aspect of the argument advanced by the petitioner before
this Court has been very meticulously dealt with by the Court below and
answered. The reason given by the Court below while dealing with the
aforementioned points cannot be doubted on facts as well as law. Therefore,
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no gain in saying that the impugned judgments of the Courts below are just
and proper and a culmination of apt appreciation of the evidence.
16. In that view of the matter, there is no scope for this Court to interfere in
the conviction recorded by the Courts below against the petitioner for the
offences punishable under Sections 326/307 IPC.
17. At this stage, learned counsel for the petitioner argued on the quantum
of the sentence and submitted that the incident was of the year 2000, 24 years
has gone by. He submitted that during the trial, the petitioner was in custody
from 14.10.2000 and was released on bail only on 26.09.2003. After
conviction, he was again taken to the custody on 10.08.2004 and was released
on bail on 13.08.2004. Therefore, he had substantially undergone custody for a
period of about three years without remission. Hence, he prayed to modify the
sentence to that of custody already undergone.
18. Taking into consideration the aforementioned, I am inclined to modify
the sentence awarded to the petitioner while maintaining the conviction. The
sentence is accordingly modified from R.I. of seven years awarded by the
Court below to that of the sentence already undergone by the petitioner in
custody. The petitioner is also liable to pay a fine of Rs.20,000/- (Rupees
twenty thousand) in default of paying the same, the petitioner shall undergo
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R.I. for a period of three months. The fine amount to be deposited by the
petitioner shall be disbursed to the informant/injured in accordance with
Section-357 of Cr.P.C as compensation.
19. The Criminal Revision is partly allowed.
......................
(S.S. Mishra) Judge The High Court of Orissa, Cuttack The 20th June, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Page 10 of 10 Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 03-Jul-2024 18:10:35