Orissa High Court
Sadhu Charan Panda vs State on 5 December, 1986
Equivalent citations: 1987CRILJ1220
Author: G.B. Patnaik
Bench: G.B. Patnaik
ORDER G.B. Patnaik, J.
1. Petitioner along with his father and sister were convicted under Sections 307, 324 and 325/34, Penal Code, by the learned Assistant Sessions Judge, Athagarh, and were sentenced differently for their conviction on different counts. On appeal, the learned Sessions Judge found that the Assistant Sessions Judge had awarded the sentence without hearing the petitioner on the question of sentence and accordingly remitted the matter to the learned Assistant Sessions Judge lo hear the petitioner along with other accused persons on (he question of sentence. The learned Assistant Sessions Judge, thereafter heard the accused persons and passed different sentences. The conviction of the petitioner along with others passed by the learned Assistant Sessions Judge was challenged in appeal and the learned Additional Sessions Judge set aside the conviction and sentence of the two other accused persons other than the petitioner and so far as (he petitioner is concerned, his conviction under Sections 307 and 325, I.P.C. was also set aside, but petitioner's convict ion under under Section 324, I.P.C. was affirmed and he was sentenced lo undergo rigorous imprisonment for one year and it is this conviction and sentence of (he petitioner which arc being challenged in (he present revision.
2. Petitioner's conviction under Section 324, I.P.C. is on account of the fact that on 9-2-198l, a dispute arose with regard lo sharing of biri crop which had been jointly grown on (he Mahanadi Patha and in course of which Sankarsan (P.W. I) was severely assaulted by the petitioner by means of a Kalari. Sankarsan lodged the F.I.R. (Ext. Don the basis of which the Police registered a case and started investigation and on completion of investigation submitted the charge-sheet.
3. Prosecution examined as many as 12 witnesses of whom P.W. I is the injured and P.Ws. 2, 3, 4,7 and 8 are the eye-witnesses to the occurrence; P.Ws. 5 and l) are the post-occurrence witnesses; P.W. 10 is a seizure witness; P.W. II is (he Lady Assistant Surgeon who had examined (he injured (P.W. I) and the injury report is Ext. 4 and P.W. 12 is the Investigating Officer. On the defence side also three witnesses were examined. The learned Additional Sessions Judge has sustained the conviction of the petitioner relying upon the evidence of the injured (P.W.I) which gets ample corroboration from the evidence of P.Ws. 2, 3, 4,7 and 8 as well as the medical evidence of (he doctor (P.W. II).
4. At the outset of the argument in this revision, (he learned Counsel for the petitioner contends that from the judgment of the learned Additional Sessions Judge it appears I hat (he petitioner was unrepresented in the appeal at (he lime of argument and, therefore, the mailer should be remitted back for rehearing of (he appeal. In support of this contention, the learned Counsel places reliance on the decision of the Supreme Court in the case of Kabira v. State of Uttar Pradesh 1981 (Supp) SCC76, as well as the decision of this Court in the case of S. Mohan Rao v. Bhubaneswar Rath (1484) 58 Cut LT 585 : 1985 Cri LJ 228. In the Supreme Court case on the date when the criminal appeal was taken up for hearing, no one was present for the appellant. The learned Judge also did not state in the order that the appeal was being dismissed on merits or that the reasons for the dismissal of the appeal would be given later. The order noted in (he order-sheet was to the effect:
No one appears on behalf of the accused-appellant. The appeal is dismissed in default.
Thus (he appeal was dismissed for default of appearance of (he appellant. The Supreme Court noted the aforesaid fact, namely that the High Court dismissed the appeal without going into the merits of the appeal for the default of appearance of the appellant and in that context it was observed that there has not been a proper disposal of the appeal preferred by the appellant and the appeal could not be dismissed by the learned Judge for default of appearance. The observations of the Supreme Court to the effect:
...If the appellant was not present, the learned Judge should have appointed some advocate as amicus curiae and then proceeded lo dispose of the appeal on merits....
must be understood to have been made in the context of the facts and circumstances of that case and in my view, the said observations have no application to the present case.
So far as the judgment of (his Court is concerned (1984) 58 Cut LT 585 : 1985 Cri LJ 228 undoubtedly, on principle the same would be applicable in the present case. But in that case also it appears that the Sessions Judge heard the appeal in the initial hours and the counsel for the appellant appeared at a later hour by which time, the Sessions Judge had already delivered the judgment. Notwithstanding the aforesaid distinction between the facts of that case and the present case, the ratio of the aforesaid case would normally apply, but with respect, 1 beg to differ from the aforesaid decision, as in my view, no reasons have been given by the learned Judge in coming to the said decision. If an accused is represented by a counsel in the appeal, but the counsel does not appear when the case is called on for hearing whereafter the Court examines the records of the case and with the assistance of the Public Prosecutor disposes of the appeal, it cannot be said in all cases that the judgment suffers from an infirmity. If the impugned judgment of the appellate Court illustrates a non-application of mind by the appellate Judge, then in such a case, it may be open to set aside the same and direct re-hearing of the appeal. But an order of the appellate Court on perusal of the records and on hearing the matter with the assistance of the Public Prosecutor ipso facto cannot be said to be vitiated. No doubt, as observed by the Supreme Court, that howsoever diligent the learned Judge may be and howsoever careful and anxious he may be to protect the interests of the appellant in the absence of his counsel, his effort cannot take the place of an argument by an advocate appearing on behalf of the appellant, but in such a case in my view the Public Prosecutor discharges the duty as counsel both for the prosecution and for the defence and should fairly place the records of the case not with the object of securing a conviction but in discharge of his duty to place the entire materials that would subserve the ends of the justice. If the judgment of this Court in Mohan Rao's case (supra), is accepted as of application in all cases where the counsel for the appellant in a criminal appeal does not appear at the time of argument, then instead of serving the interests of justice, it may be abused very often and the Courts may feel helpless at times. Supposing the counsel for the appellant does not appear when the appeal is taken up for hearing, and as has been observed by this Court, the Sessions Judge engages an arnicas curiae for the hearing of the appeal, and on the date of the next hearing, the counsel appointed as amicus curiae also does not appear, then would the Sessions Judge be again asked to appoint another counsel In my view that can never be the intention of the Honourable Supreme Court in laying down the decision in Kabir's case (supra). In respectful disagreement with the decision of this Court in Mohan Rao's case, I would hold t hat a judgment of the Sessions Judge rendered with the assistance of the Public Prosecutor and on examination of materials on records cannot be set at naught merely because the counsel for the appellants was not present when the appeal was heard.
5. From the records of the Sessions Judge in this case, I find that the appeal had been filed and the accused persons were represented by counsel. On several occasions the appellants' counsel had prayed for adjournment and the appeal had been adjourned on the request of the appellants' counsel on 29-10-1983, 17-11-1983, 18-11-1983, 22-11-1983 and 9-12-1983. The appeal was finally posted for hearing to 3-1-1984 on 9-12-1983 and on 3-1-1984, none appeared for the appellants whereupon the learned Additional Sessions Judge heard the Public Prosecutor and applied his mind to the records of the case and posted the same for judgment whereafter the impugned judgment has emanated. In these state of facts and circumstances, the conviction cannot be set aside on the ground that the appellants' counsel did not argue the case. Then again as has been found earlier, the learned Additional Sessions Judge has applied his mind fully to the facts and materials on record and has set aside the conviction of two other accused-appellants as well as the conviction of the petitioner under Sections 307 and 325, I. P. C. which clearly demonstrates a total application of mind of the appellate authority to the materials on record.
6. Notwithstanding the fact that I have differed with respect with the decision of this Court in Mohan Rao's case, referred to supra, since a grievance had been made by the learned Counsel for the petitioner that his counsel was not present when the appeal was heard and even though no reasons have been ascribed as to why the counsel was not present when the appeal was heard, yet I thought it appropriate to re-examine the evidence myself to find out whether there has been any miscarriage of justice because of the non-appearance of the counsel for the appellants. As I find from the records of the case, the evidence of the injured (P. W. 1) has been fully corroborated by the evidence of ass many as six eye-witnesses to the occurrence, namely P. Ws. 2, 3, 4, 6, 7 and 8. The injured (P.W.I) has stated that Sadhu Panda (Petitioner) assaulted with a Katari at different places of his body. This fact has been consistently corroborated by the evidence of P. Ws. 2, 3, 4, 6, 7 and 8. The doctor (P. W. 11) who examined the injured on 4-2- 1981 al 3.30 p. m. also found five incised wounds which can be caused by sharp-cutting weapon and this evidence also corroborates the oral evidence. Nothing has been pointed out by the learned Counsel for the petitioner as to why the evidence of so many eye-witnesses will be disbelieved. In that view of the matter, I would conclude that the prosecution has been able to bring home the charge against the petitioner so far as the offence under Section 324, I.P.C. is concerned beyond all reasonable doubt and accordingly the conviction of the petitioner must be sustained. The sentence of rigorous imprisonment for one year, however, appears to be quite severe and I would, therefore, considering the facts and circumstance of the present case as well as the nature of injuries sustained by the informant, reduce the sentence of rigorous imprisonment for six months. This revision is accordingly dismissed subject to I he aforesaid modification of sentence.