Orissa High Court
From Judgment And Order Dated ... vs State Of Orissa on 14 February, 2019
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK.
JCRLA No. 16 Of 2013
From judgment and order dated 14.03.2012 passed by the
Additional Sessions Judge, Rairangpur in S.T. Case No. 34 of
2010.
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Durga Soren ........ Appellant
-Versus-
State of Orissa ........ Respondent
For Appellant: - Mr. Satyanarayan Mishra
For State: - Mr. Purna Chandra Das
Addl. Standing Counsel
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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 and Judgment: 14.02.2019
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S. K. SAHOO, J. The appellant Durga Soren has preferred this appeal
challenging the judgment and order dated 14.03.2012 passed by
the learned Additional Sessions Judge, Rairangpur in S.T. Case
No.34 of 2010 in convicting him under sections 307 and 448 of
the Indian Penal Code and sentencing him to undergo R.I. for a
period of ten years and to pay a fine of Rs.1,000/- (rupees one
thousand), in default, to undergo further R.I. for a period of one
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year under section 307 of the Indian Penal Code and R.I. for a
period of one year under section 448 of the Indian Penal Code
and directing both the sentences to run concurrently.
2. The prosecution case, in short, is that on
14/15.01.2010 during midnight while the injured P.W.9 Sarfa
Soren was sleeping with her husband Gujai Soren (P.W.8) on the
verandah of their house situated in village Bhulupahadi, Kuder
Sahi under Rairangpur Rural police station in the district of
Mayurbhanj, the appellant came there and dealt a blow by
means of a Budia (axe) near the right ear of P.W.9 and also
dragged her. When P.W.9 shouted, her husband (P.W.8) got up
whereafter the appellant fled away from the spot. P.W.9 was
shifted to S.D. Hospital, Rairangpur where he was treated by
P.W.3 Dr. Debendra Nath Tudu, Asst. Surgeon. She was then
taken to Baripada Hospital and Cuttack Hospital.
On 30.01.2010 P.W.8 Gujai Soren lodged the first
information report before Hatbadra Outpost which was received
by P.W.10 Gayadhar Behera, A.S.I. of Police attached to the said
Outpost who after making S.D.E. No.468 dated 30.01.2010, sent
the F.I.R. to Rairangpur Rural police station where the Officer in
charge of the said police station registered Rairangpur Rural P.S.
Case No.04 of 2010 under sections 448, 307 and 506 of the
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Indian Penal Code against the appellant and directed P.W.10 to
take up investigation of the case. P.W.10 examined the
informant (P.W.8), visited the spot and prepared spot map
(Ext.4). He examined other witnesses, seized one axe (M.O.I)
under seizure list Ext.2. He issued injury requisition to S.D.
Hospital where P.W.9 was earlier treated and received the injury
report. On 02.02.2010 he arrested the appellant and forwarded
him to Court. He sought for the opinion from the Medical Officer
of S.D. Hospital regarding possibility of injury on P.W.9 with the
seized axe and received opinion vide Ext.5/2. After completion
of investigation, he submitted charge sheet on 13.04.2010
against the appellant under sections 448, 307 and 506 of the
Indian Penal Code.
3. After submission of charge sheet, the case was
committed to the Court of Session for trial after observing due
committal procedure where the learned Trial Court charged the
appellant under sections 448, 307 and 506 of the Indian Penal
Code on 05.10.2010 and since the appellant refuted the charge,
pleaded not guilty and claimed to be tried, the sessions trial
procedure was resorted to prosecute him and establish his guilt.
4. In order to prove its case, the prosecution examined
ten witnesses.
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P.W.1 Sarat Kumar Giri is the scribe of the first
information report and a witness to the seizure of axe under
seizure list (Ext.2).
P.W.3 Dr. Debendra Nath Tudu was the Asst.
Surgeon, S.D. Hospital, Rairangpur who examined P.W.9 and
proved the injury report (Ext.3).
P.W.8 Gujai Soren is the husband of the injured and
he is also the informant in the case.
P.W.9 Sorfa Soren is the injured eye witness.
P.W.10 Gayadhar Behera was the A.S.I. of Police,
Hatbadra Outpost who is the Investigating Officer.
The prosecution exhibited five documents. Ext.1 is
the first information report, Ext.2 is the seizure list of the axe,
Ext.3 is the injury report of P.W.9, Ext.4 is the spot map and
Ext.5 is the query report.
The prosecution also proved the weapon of offence
i.e. axe as M.O.I.
5. The defence plea of the appellant was one of denial.
6. The learned trial Court after assessing the evidence
on record though acquitted the appellant of the charge under
section 506 of the Indian Penal Code but mainly relying upon the
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evidence of P.W.8 and P.W.9 found the appellant guilty under
sections 448 and 307 of the Indian Penal Code.
7. Mr. Satyanarayan Mishra, learned counsel for the
appellant contended that there is absolutely no material on
record to attract the ingredients of both the offences. The
doctor's evidence indicates that the injured (P.W.9) has
sustained a simple injury and therefore, the appellant should not
have been convicted under section 307 of the Indian Penal Code
particularly when no medical reports of any other hospital than
S.D. Hospital, Rairangpur has been proved in the case. He
further submitted that the injured and her husband were
sleeping on the verandah of their house and there is no evidence
of any house trespass and therefore, conviction of the appellant
under section 448 of the Indian Penal Code is not sustainable in
the eye of law.
Mr. Purna Chandra Das, learned Additional Standing
Counsel on the other hand supported the impugned judgment
and contended that the nature of injury sustained by the injured
cannot be the sole factor to determine the ingredients of offence
under section 307 of the Indian Penal Code.
8. P.W.9 is the injured. She stated that on the date of
occurrence at 10 p.m. while she was sleeping with her husband
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(P.W.8), the appellant inflicted a blow by means of a Budia (axe)
near her right ear and dragged her. When she shouted, her
husband got up and found the appellant running away. On the
next day, she was taken to Rairangpur Hospital and from
Rairangpur, she was taken to Baripada and thereafter to Cuttack
for her treatment. She further stated that M.O.I is the axe by
which the appellant inflicted injury on her on the night of
occurrence. In the cross-examination, she has stated that it was
a dark night and she was sleeping on the verandah of her house
where the lamp was lighted near the door. She further stated
that it was a winter night.
P.W.8 Gujai Soren stated that when he heard shout
of P.W.9, he found her in an injured condition and the appellant
was running away from the house. He further stated that there
was nobody else in that night and on the next day, he took
P.W.9 to Rairangpur Hospital and then she was referred to
D.H.H., Baripada and then to Cuttack. In the cross-examination,
he stated that the verandah where they were sleeping was close
to the village road and villagers were going on that road as it
was a festive day.
The doctor (P.W.3) who examined P.W.9 on
15.01.2010 found one lacerated wound of size 6 c.m. X 2 c.m. X
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1 c.m. on the anterior aspect of the right ear vertically. He
opined the injury to be simple in nature and further opined that
such injury was possible by means of a hard and cutting object.
In the cross-examination, he has stated that P.W.9 was treated
as an outdoor patient and when he asked P.W.9 as to how she
sustained injury, she did not tell him anything.
Even though the injured and her husband have
stated that after initial treatment at Rairangpur Hospital, she was
taken to Baripada as well as Cuttack for treatment but there is
no corresponding medical document in that respect showing her
treatment in any other hospital except S.D. Hospital, Rairangpur.
P.W.3 has also not stated that he referred the patient to any
other hospital. The injury report (Ext.3) is also silent that the
patient was referred to any other hospital. It was the duty of the
prosecution to substantiate in a case of this nature regarding the
treatment of the injured in different hospitals, if any, by
examining the concerned doctors as well as proving the medical
documents. It may be the laches of the investigating officer but
if otherwise, the evidence relating to the treatment of the injured
in different hospitals as well as nature of treatment provided to
her is not clinching, in absence of any oral or documentary
evidence, it is difficult to accept the statement of the injured and
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her husband that the injured was treated either at Baripada
Hospital or in any hospital of Cuttack.
So far as the blow given by the appellant to P.W.9 by
means of Budia (axe) is concerned, nothing has been elicited in
the cross-examination to disbelieve the same. The evidence of
P.W.9 in that respect is clear. P.W.8 also corroborates the
version of the injured that on hearing the shout of his wife, he
found the injury on her head and also found the appellant was
running away from the spot. The doctor (P.W.3) has noticed one
injury on the head of P.W.9 which has been opined to be simple
in nature, however, he stated that the injury was sufficient in
ordinary course of nature to cause death. An injury 'sufficient in
the ordinary course of nature to cause death' merely means that
death would be the 'most probable' result of the injury having
regard to ordinary course of nature. In other words, it envisages
a high probability of death. The expression does not mean that
death must result in which such an injury is caused or the injury
should invariably or inevitably lead to death. The expression
'sufficient in the ordinary course of nature' is a species of the
genus 'likely'. There is no material on record as to what sort of
internal damage it caused or relating to the after effects of the
head injury sustained by P.W.9. The medical report (Ext.3)
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proved by P.W.3 does not mention that the head injury was
sufficient in ordinary course of nature to cause death. A medical
expert has a great responsibility in a criminal trial and therefore,
he should be careful while making any note in his report. He
should consider the pros and cons of the case and draw his
conclusions correctly and logically. A hasty and illogic statement
made during trial at the instance of the Public Prosecutor or
defence counsel may have a serious repercussion on the result of
the case.
It is the settled principle of law that to justify a
conviction under section 307 of the Indian Penal Code, it is not
essential that bodily injury capable of causing death should be
inflicted. The nature of injury actually caused very often gives
considerable assistance in coming to a finding relating to the
intention of the accused. However, such intention can also be
deduced from other circumstances without even any reference to
the actual wounds. It is not necessary that the injury actually
caused to the victim of the assault should be sufficient under
ordinary circumstances to cause the death of the person
assaulted. The Court has to see is whether the act, irrespective
of its result, was done with the intention or knowledge and under
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circumstances mentioned in the section (Ref: A.I.R. 1983 S.C.
305, State of Maharashtra -Vrs.- Balaram Bama Patil).
In case of Rekha Mandal -Vrs.- State of Bihar,
reported in 1968 (Volume 8) Supreme Court Decisions
208 wherein seventeen injuries consisting of incised and
punctured wounds were caused on the injured by different
weapons such as farsa, spear and lathi and none of the injuries
was grievous and only two of them were located on the head and
neck, it was held as follows:-
"2.......Medical evidence did not disclose that
any of the injuries was cumulatively dangerous
to life and the question therefore is whether in
these circumstances it could be held that the
offence disclosed was one under S. 307 of the
Indian Penal Code. That section requires that the
act must be done with such intention or
knowledge or under such circumstances that if
death be caused by that act, the offence of
murder will emerge."
The Hon'ble Court in that case altered the conviction
from section 307 to section 324 of the Indian Penal Code.
In view of the nature of evidence available on record,
the nature of injury sustained by the injured (P.W.9) which has
been opined by P.W.3 to be simple in nature and absence of any
other medical documents from any other hospital or any material
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to show the after effects of such injury, I am of the considered
opinion that the conviction of the appellant under section 307 of
the Indian Penal Code is not sustainable in the eye of law. In my
humble view, the case squarely falls within the ambit of section
324 of the Indian Penal Code. Accordingly, the conviction of the
appellant is altered from section 307 of the Indian Penal Code to
one under section 324 of the Indian Penal Code.
9. So far as the conviction of the appellant under
section 448 of the Indian Penal Code is concerned, such section
deals with punishment for house trespass. 'House trespass' has
been defined under section 442 of the Indian Penal Code. The
occurrence stated to have taken place on the outer verandah of
the house which was close to the village road. There is no
evidence that the appellant has committed any house trespass
as defined under section 442 of the Indian Penal Code.
Therefore, the conviction of the appellant under section 448 of
the Indian Penal Code is not sustainable in the eye of law.
10. Accordingly, the appeal is allowed in part. The
conviction of the appellant under section 448 of the Indian Penal
Code is set aside. The conviction under section 307 of the Indian
Penal Code is altered to one under section 324 of the Indian
Penal Code and the sentence is modified from R.I. for ten years
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and payment of fine of Rs.1,000/- and in default, to undergo R.I.
for one year to R.I. for one year simplicitor. The appellant has
remained in custody for more than nine years. He should be
released forthwith from custody, if his detention is not required
in any other case and if he has not yet been released as per the
order of this Court dated 01.02.2019.
In the result, the JCRLA is allowed in part.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 14th February 2019/RKM/PKSahoo