Orissa High Court
Dibakar Patra vs State Of Orissa on 22 January, 2016
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO. 12 OF 2011
From judgment and order dated 01.11.2010 passed by the Adhoc
Addl. Sessions Judge, Fast Track Court, Champua in S.T.Case
No.49/165 of 2010.
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Dibakar Patra ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mr. Jayadeba Behera
For Respondent: - Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of hearing- 22.01.2016 Date of Judgment- 22.01.2016
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S. K. SAHOO, J.The appellant Dibakar Patra faced trial in the Court of the learned Adhoc Additional Sessions Judge, Fast Track Court, Champua in S.T. Case No.49/165 of 2010 for the offences punishable under sections 452 and 307 of the Indian Penal Code. The appellant was found guilty of both the charges and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.20,000/-, in default, to undergo simple 2 imprisonment for one year for commission of offence under section 307 of the Indian Penal Code. He was further directed to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for a period of six months for commission of offence under section 452 of the Indian Penal Code. Both the substantive sentences were directed to run concurrently.
2. The prosecution case as per the First Information Report lodged by one Prafulla Patra (P.W.9) on 22.4.2010 before Officer-in-charge, Baria Police Station is that the appellant, who is the cousin brother of the informant, entered inside the house of the informant and assaulted the father of the informant namely Nanda Patra (P.W.8) by means of a 'bhujali' on the neck as well as on the belly repeatedly for which there was profuse bleeding and the injured was shifted to the hospital for treatment where he was fighting with life.
3. Basing on such First Information Report by P.W.9, Baria P.S. Case No.18 dated 22.04.2010 was registered under sections 452 and 307 of the Indian Penal Code by P.W.10 Mallick Chandra Sahu, A.S.I. of Police attached to Baria Police Station in absence of the Officer-in-charge. P.W.10 examined the informant and other witnesses and recorded their statements under section 161 Cr.P.C., visited the spot and prepared the spot map vide 3 Ext.4. After coming to know that the injured P.W.8 was hospitalized at the District Headquarters Hospital, Keonjhar, the I.O. issued injury requisition to the Medical officer, D.H.H., Keonjhar for submission of report. On 29.04.2010 the I.O. arrested the appellant and recovered a knife on the information of the appellant from his sister's house on being produced by him which was seized under the seizure list vide Ext.1. The appellant was forwarded to the Court of the learned S.D.J.M., Champua. The I.O. seized the bed-head ticket of the injured from District Headquarters Hospital, Keonjhar under seizure list vide Ext.2. After completion of investigation, charge sheet was submitted under sections 452 and 307 of Indian Penal Code on 7.7.2010.
4. After submission of charge sheet, the case was committed to the Court of Session after observing due committal procedure. Learned Trial Court charged the appellant under sections 452 and 307 of the Indian Penal Code on 22.09.2010 and since the appellant refuted that charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.
5. During course of trial, in order to prove its case, the prosecution examined thirteen witnesses.
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P.W.1 Ratnakar Patra is the cousin brother of the appellant who stated that on 21.04.2010 in the morning hours, the appellant came with a big knife which was stained with blood and stated that he had killed Nanda Patra (P.W.8). P.W.1 also noticed the injured Nanda Patra lying with multiple stab injuries with profuse bleeding and the injured named the appellant to be the culprit. He further stated about the shifting of the injured to the hospital.
P.W.2 Smt. Kumati Patra is the wife of the injured. She stated that when she came to the spot, she found her injured husband lying in a pool of blood and her husband as well as her grandson Jaguru Patra (P.W.3) told her that the appellant had assaulted the injured. She further stated about the shifting of the injured to the hospital.
P.W.3 Jaguru Patra is the nephew of the appellant and grandson of the injured and he is an eye witness to the occurrence.
P.W.4 Yadav Patra noticed the appellant lying in a pool of blood with multiple injuries. He further stated about the shifting of the injured to the hospital.
P.W.5 Dhaneswar Mahanta stated about the seizure of one knife on being produced by the appellant under seizure list Ext.1.
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P.W.6 Pramod Kumar Behera is another witness who stated about the seizure of knife under seizure list Ext.1.
P.W.7 Mahendra Kumar Nayak stated about the seizure of bed-head ticket under seizure list Ext.2.
P.W.8 Nanda Patra is the injured in the case.
P.W.9 Prafulla Patra is the son of the injured and he stated that in the hospital, his father told him about the assault by the appellant by means of knife. He is also the informant in the case.
P.W.10 Mallick Chandra Sahu is the A.S.I. of Police, Baria Police Station who is the Investigating Officer.
P.W.11 Smt. Subarani Patra is the daughter-in-law of the injured who learnt about the incident of assault at the hospital from the injured who stated before her that the appellant had assaulted him by means of knife.
P.W.12 Dr. Jayakrushna Tripathy was the Surgery Specialist attached to District Headquarters Hospital, Keonjhar who proved the bed head ticket -cum- injury report marked as Ext.5.
No witness was examined on behalf of the defence. The prosecution exhibited five documents. Exts.1 and 2 are the seizure lists, Ext.3 is the First Information Report, Ext.4 is the spot map and Ext.5 is the bed-head ticket. 6
6. The defence plea of the appellant was one of the denial and it was pleaded that due to civil dispute between the parties, this case has been foisted.
7. The learned trial Court after analyzing the evidence on record has been pleased to held that the evidence of the injured is unimpeachable, clear, cogent and reliable and it is gaining overwhelming corroboration from the medical evidence as well as from the eye witness P.W.3. The learned trial Court further held that the evidence of P.W.1, P.W.2, P.W.4, P.W.9 and P.W.11 on close scrutiny found to be reliable and all the witnesses equivocally gave consistent account of the occurrence just soon after the occurrence. The learned trial Court further held that the essential ingredients of the offences under sections 452 and 307 of Indian Penal Code are well proved by the prosecution beyond all shadow of doubt and accordingly convicted the appellant.
8. Adverting over the nature of injuries sustained by the injured (P.W.8), I find that though no separate injury report has been produced by the prosecution but the bed-head ticket (Ext.5) of the injured showing his treatment at District Headquarters Hospital, Keonjhar which was proved by P.W.12 Dr. Jayakrushna Tripathy indicates that the injured was admitted on 21.04.2010 and he was discharged from the hospital on 7 7.5.2010. The bed-head ticket indicates the following injuries were noticed on the person of the injured:-
(i) Two cut injuries of size 5 cm on neck;
(ii) One laceration deep cut injury of size 1 cm, 3 cm below the right nipple;
(ii) Two cut laceration injuries of size 1 cm x 2 cm on the left knee;
(iii) Two laceration on left little finger and right finger.
The doctor opined that the injury on the chest is grievous in nature and other injuries are simple in nature and the injury on the right chest produced hemothorax and the right lung was protruding through that injury. There were displacement of right side hemothorax and two liters of blood was drained and intercostal drainage tube was given to save the life. In the cross- examination, the doctor has stated that the injured was having sense when he extended surgical treatment to him.
9. Mr. Jayadeba Behera, learned counsel for the appellant challenging the impugned judgment and order of conviction submitted that the case is based mainly on the evidence of interested witnesses and therefore it should not have been accepted by the learned Trial Court. He further submitted that though the occurrence took place on 21.04.2004 at about 7.00 a.m. but the FIR was lodged on the next date i.e. on 8 22.04.2010 at about 6.00 p.m. and therefore there was inordinate delay of about one and half days in lodging the FIR and therefore there was every chance of concocting the case against the appellant due to civil dispute between the parties.
Mr. Prem Kumar Patnaik, learned Additional Government Advocate on the other hand contended that the injured is the best person to depose about the incident and his evidence gets ample corroboration from the medical evidence and therefore there was no infirmity in the impugned judgment and order of conviction. He further contended that the injured was shifted to the hospital immediately by his family members to save his life and therefore the delay in lodging the FIR is not a factor to discard the prosecution evidence.
10. I have thoughtfully considered the rival contentions vis-à-vis the evidence on record.
Section 452 of Indian Penal Code is the aggravated form of house trespass which has been defined under section 442 of Indian Penal Code and the prosecution has to establish that not only the accused committed house trespass but also while doing so, he had made preparation for causing hurt to any person or for assaulting any person, or for wrongful restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint. The house trespass as has been 9 defined under section 442 of Indian Penal Code can only be applicable when an accused commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property. Criminal trespass has been defined under section 441 of Indian Penal Code.
Coming to the evidence on record, the injured P.W.8 Nanda Patra has stated that while he was in his house and taking tea, the appellant came and assaulted him by means of a knife. P.W.3 also stated that when the injured asked the appellant not to sell the land as the land would be helpful for him in future, the appellant got enraged and then while the injured was taking tea, the appellant entered into the house of the injured and assaulted him. In the spot map Ext.4, the occurrence was shown to have taken place inside the house of the injured. Except giving bald suggestion regarding false implication, nothing has been brought out in the cross examination to disbelieve the statements of these two witnesses. In view of the unchallenged testimonies of these witnesses, it is very clear that the appellant had committed house trespass after making preparation of assault to P.W.8 and therefore the ingredients of the offence under section 452 of Indian Penal Code as has been held by the learned trial Court is clearly made out and therefore there is no infirmity in the order 10 of conviction of the appellant under section 452 of Indian Penal Code.
11. So far as the offence under section 307 of Indian Penal Code is concerned, P.W.8 Nanda Patra, the injured has specifically stated that the appellant stabbed him by means of a knife on his abdomen, neck and the knife was pierced into his belly. The appellant used one grinding stone to press the handle of the knife for further piercing as a result of which the internal matters of the belly came out and there was profuse bleeding from such wound.
P.W.3 has also stated that the appellant after entering into the house of P.W.8 repeatedly dealt blows on the belly, neck and below shoulder joint and also assaulted P.W.8 by means of a grinding stone. He further stated that when the big knife did not pierce deep, the accused pressed the handle of the knife for further piercing. P.W.3 admits that he has not stated before police regarding use of grinding stone by the appellant for assaulting the injured.
The evidence of the injured as well as eye witness gets corroboration from medical evidence and also from the evidence of other witnesses who have seen the injured lying in a pool of blood.
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On perusal of the cross-examination of both the star witnesses of the prosecution i.e. P.W.8 and P.W.3, it is found that nothing substantial has been brought out to discard their testimonies.
The injured witness is the best witness to depose about his assault and even though he may be interested in ensuring that the real culprit is punished but he is not necessarily a false or unreliable witness. The evidence of an interested witness should be subjected to careful scrutiny and accepted with caution.
When the evidence of the injured has remained unshaken in the cross examination and there is no infirmity in it and it is further corroborated by the eye witness P.W.3 as well as other witnesses who have seen the injured lying at the spot with bleeding injuries and also by the witnesses before whom the injured disclosed about the occurrence naming the appellant to be the perpetrator of the crime and the statement of the injured is also corroborated by the medical evidence, I find no reason to disbelieve the prosecution case that it is the appellant who had assaulted the injured P.W.8 on the date of occurrence.
Coming to the ingredients of offence under section 307 of Indian Penal Code, the nature of injuries caused often depicts the intention of the accused though it is not essential that 12 bodily injury capable of causing death should be inflicted. The Court has to see as to whether the act was done with the intention or knowledge and under such circumstances as has been mentioned in section 307 of Indian Penal Code. The result of the act or the nature of injuries sustained is not always a decisive factor to determine the existence of mens rea to commit the crime.
The appellant had given knife blows on the neck and right side chest of the injured as a result of which the right lung was protruding through the chest injury and it produced hemothorax on the right side chest and the injured has to undergo treatment as an indoor patient for seventeen days. The nature of injuries sustained by the injured as per bed-head ticket Ext.5 and the manner in which the appellant dealt repeated knife blows on the vital parts of the body clearly makes out the ingredients of the offence under section 307 of Indian Penal Code. Accordingly, I find no infirmity in the order of conviction of the appellant under section 307 of Indian Penal Code.
12. The contention of the learned counsel for the appellant that there was inordinate delay of about one and half days in lodging the FIR and therefore there was every chance of concocting the case against the appellant cannot be accepted. 13
The first priority of the family members was to save the life of the injured who was critically injured by carrying him to the hospital to provide him medical treatment and not run to the police station. The informant who is the son of the injured was staying at Jurudi and he was given information about the incident over telephone and he proceeded to the hospital, attended his injured father and after hearing about the incident from his father came to the police station and lodged the FIR. Baria police station is 17 kms. away from the village of occurrence Kusumnali. Considering all these aspects, I am of the view that the prosecution has satisfactorily explained the delay in lodging the FIR.
13. Coming to the sentence imposed by the learned trial Court, I find that the appellant was arrested and produced before the Court on 29.4.2010 and since then he remained in custody not only till the conclusion of the trial but also during pendency of the appeal till 18.12.2014 when he was granted bail in this criminal appeal. Therefore the appellant had undergone more than four and half years of sentence.
The background of the case indicates that the parties are related to each other and there was civil dispute between them. The occurrence happened all on a sudden when the injured asked the appellant not to sell the land further. There was no 14 criminal antecedent against the appellant on record and he was a labourer. Even after the appellant was released on bail by this Court, there is no allegation of misuse of his liberty. No doubt the punishment must be appropriate and proportional to the gravity of the offence committed, however reformative aspect of punishment cannot be undermined.
Considering the totality of the facts and striking a balance between the act committed by the appellant and the surrounding circumstances, the passage of time in the meantime and the other mitigating factors coupled with the period of physical incarceration of four and half years and mental incarceration undergone by the appellant, while upholding the conviction of the appellant under sections 307 and 452 of Indian Penal Code as was imposed by the learned Trial Court, I direct that the substantive sentences of imprisonment imposed on both the counts are reduced to the period already undergone. Since in both the offences, there is no minimum sentence, but imposition of imprisonment and fine is mandatory, taking .into account the fact that the appellant is extremely poor, landless and labourer as per the available materials on record, I am satisfied that he is not in a position to deposit the quantum of fine amount as has been imposed by the trial Court. Therefore the fine imposed under section 307 of IPC is reduced to Rs.1000/-, in default of 15 payment of fine, to undergo simple imprisonment for fifteen days and the fine imposed under section 452 of IPC is reduced to Rs.500/-, in default, to undergo simple imprisonment for seven days.
In the result, the appeal is dismissed subject to the modification in the sentence as above.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 22th January 2016/Sisir