Afr Rohita Mirdha And Others vs State Of Orissa
2022 Latest Caselaw 2100 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLREV No. 1014 of 2006

      An application under Section 397 read with Section 401 of
      the Code of Criminal Procedure, 1973 challenging the
      order dated 13.10.2006 passed by Addl. Sessions Judge,
      Sambalpur in Criminal Appeal No.10/3 of 2004/05.
                           ---------------
AFR   Rohita Mirdha and others             ......        Petitioners

                           -Versus-

      State of Orissa                         ......       Opp. Party

      Advocate(s) appeared in this case:-
      _________________________________________________________

        For Petitioners    :         M/s. P.K. Jena, N. Panda and
                                     D.P. Mohapatra, Advocates

         For Opp. Party    :         Mr. S.K. Mishra,
                                     Addl. Standing Counsel

      _________________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                                JUDGMENT

th 5 April, 2022

SASHIKANTA MISHRA, J.

In the present revision, the petitioners question

the correctness of judgment dated 13.10.2006 passed by

the learned Additional Sessions Judge, Sambalpur in

Criminal Appeal No. 10/3 of 2004/05, whereby, the said

appeal was dismissed and, in the process, the judgment

dated 26.06.2004 passed by the learned Asst. Sessons

Judge, Sambalpur in S.T. Case No. 277/60 of 2002 was

confirmed. As per the said judgment, the learned Asst.

Sessions Judge convicted the accused petitioners under

Sections 323/325/34 of IPC and sentenced them each to

undergo R.I. for two years and to pay a fine of Rs.500/-,

in default, to undergo R.I. for three months each for the

offence under Section 325 of IPC and to undergo R.I. for

six months each under Section 323 IPC with both the

sentences to run concurrently.

2. The prosecution case, briefly stated, is that on

04.08.2001 while Pabitra Mirdha, the uncle of the

informant Gopinath Mirdha, was returning home after

attending the call of nature at about 9 a.m., the three

accused persons assaulted him by means of axe and lathi

on the village road of Khetinali causing severe bleeding

injuries on his person. Upon hearing about the incident,

the informant rushed to the spot and reported the matter

at Charmal Police Station leading to registration of

Charmal P.S. Case No. 47/2001 and investigation was

taken up. Upon completion of investigation, charge sheet

was submitted against the accused persons under

Sections 307/323/325/34 of IPC. In course of trial,

prosecution examined 13 witnesses, while the defence

examined one witness from its side. After scanning the

evidence on record particularly, the evidence of the

injured, Pabitra Mirdha (P.W.-4), as supported by other

witnesses, such as, P.W.-6, P.W.-5, P.W.-7 and P.W.-8 as

also the evidence of the doctor, P.W.-10, the trial Court

held that though the offence under Section 307 is not

made out, yet the prosecution was successful in proving

the charge under Sections 323/325/34 of IPC. On such

findings, the trial Court convicted the accused petitioners

and sentenced them as aforesaid.

Being aggrieved, the petitioners preferred the

aforementioned Criminal Appeal, which was disposed of

by learned Additional Sessions Judge, Sambalpur. It was

urged before the lower appellate Court that the trial Court

should have disbelieved the prosecution allegation as the

independent witnesses did not support its case. Moreover,

there is material contradiction in the evidence of the

informant as compared to P.Ws. 4, 5 and 6. Learned lower

appellate Court after re-appraisal of the evidence on

record held that there is no reason to disbelieve the

version of the witnesses as the so-called contradictions

and discrepancies pointed out by the defence are minor in

nature. It was further held that the plea taken by the

defence is palpably false. Holding thus, learned lower

appellate Court found no reason to interfere and

therefore, dismissed the appeal. Feeling further aggrieved,

the accused petitioners have approached this Court in the

present revision.

3. Heard Mr. P.K. Jena, learned counsel appearing

for the petitioners and Mr. S.K. Mishra, learned Addl.

Standing Counsel for the Stae.

4. Mr. P.K. Jena contended that in the absence of

any independent corroboration, the evidence of P.Ws. 3,

4, 5 and 6 lacks credibility, more so as they are all related

to the injured and therefore, both the Courts below

committed error in relying upon such evidence. It is

further contended that the defence plea was plausible but

was rejected without any justified reason. It is finally

argued by Mr. Jena that even otherwise the Courts below

should have extended the benefit of Probation of

Offenders Act to the petitioners considering the social

background and their age.

5. Per contra, Mr. S.K. Mishra has supported the

judgments of the Courts below by contending that the

same are based on clear, cogent and consistent evidence.

He further argues that law does not always require

corroboration from independent sources, particularly

when the evidence of witnesses is found to be

trustworthy. As regards the defence plea, it is contended

that the same is on the face of it difficult to believe. On

the question of sentence, it is contended by Mr. Mishra

that since minimum sentence has been imposed, there is

no justification for extending the provisions of P.O. Act to

the petitioners.

6. As it appears, the prosecution case that the

accused persons assaulted the injured (P.W.-4) by means

of lathi and axe is clearly proved from the testimony of the

injured himself. The nature of injuries sustained by him

are proved by the doctor (P.W.-10), who clearly opined

that the same was possible to be caused by any hard and

blunt object. True, there is some confusion with regard to

presence of eyewitnesses at the spot of occurrence. The

informant says that he had seen the occurrence as it took

place in front of his house, but the same appears to be an

improvement from his initial version in the FIR to the

effect that when he came to the spot, he saw the injured

lying in an injured condition. The same has also been

taken in contradiction in cross-examination. In so far as

P.W.-5 is concerned, she is the wife of the injured and she

also states to have seen the occurrence. There is some

contradiction in her evidence too, but overall, she has

stood firm in her testimony. Coming to P.W.-6, who

appears to be an independent witness, it is her version

that on hearing hulla she had come out from her house

and saw all the accused were chasing Pabitra Mirdha and

they assaulted him in front of the house of Karmu and left

the place after causing bleeding injuries. Now, if the

version of the injured himself is considered, it is seen that

he clearly deposed that while he was going to a nala to

attend the call of nature, all the accused persons chased

him and he ran towards his house and suddenly the

accused Saheba came near him and dealt blow on his

chest by a lathi and that he lost sense and fell down. After

he regained sense in Burla Hospital his wife told that all

the accused persons had assaulted him and that there

were injures on his head besides other parts of the body.

7. If, barring the minor discrepancies the above

evidence is considered as a whole, the same comes out as

truthful and convincing as nothing has been elicited in

cross-examination to view the testimonies with doubt. As

already stated, the injured sustained five injuries

including three lacerated injuries and two abrasions, as

proved by the doctor (P.W.-10). Thus, only because no

other independent person came forward to support the

story does not necessarily mean that the same was false.

Even considering the defence plea that the injured (P.W.-

4) had himself chased the accused persons one day prior

to the occurrence and fell down on the ground and the

axe he was holding came in contact with his face causing

the injuries, the same does not at all inspire confidence so

as to be believed. The nature of injuries sustained by the

injured are as follows:

(1) Lacerated injury- 7 cm x 2 cm up to scalp depth over left parietal bone. (2) Lacerated injury- 3 cm x 1 ½ cm x 1 ½ cm on left infra orbital. Lacerated wound- 4 cm x 2 cm x 2 cm on the left side of the upper lip. (3) Abrasion - 2 cm x 1 cm over left third intercostal space.

(4) Abrasion - 1 cm x 1cm on right deltoid region.

Though it was suggested to the doctor and he also

admitted that these injures can be possible by successive

fall on hard and blunt substance, yet he also admitted

that the injuries cannot be possible by infliction of one

blow. Therefore, it is difficult to believe the defence

version. That apart, it is also the defence plea that the

injured had attacked one Dharani Mirdha but strangely

the same was not reported to the police and no

explanation is offered for the same.

8. From an analysis of the evidence on record, this

Court also finds that the charges are well proved.

Contradictions and discrepancies in the evidence of the

witnesses are not such as to prove fatal to the case of the

prosecution. The Court is required to accept such

evidence as is believable, clear, consistent and cogent.

Moreover, the evidence is to be considered as whole

without dissecting bits and parts from it. As has already

been discussed hereinbefore, this Court finds that

evidence of the main witnesses, namely P.Ws., 4, 5 and 7

are fully consistent and trustworthy. The defence plea, as

already stated, is too improbable to be believed. Nothing

has been brought on record to suggest as to why would

the aforementioned witnesses lie about the incident or

falsely implicate the accused persons and thereby, allow

the actual offenders to escape. Therefore, this Court finds

that the learned trial Court as well as the lower appellate

Court have committed no error much less any illegality in

holding the accused petitioners guilty so as to warrant

interference by this Court.

9. Coming to the sentence, it is argued by learned

counsel for the petitioner that the occurrence took place

way back in the year 2004. Nearly 18 years have passed

by in the meantime. Petitioner no.1 is aged about 48

years, while petitioner no.2 is aged about 78 years and

petitioner no.3 is aged about 73 years. Since the incident

arose out of a prior dispute and the matter has since been

settled with the injured in the village as submitted by

learned counsel for the petitioners, it would be too harsh

to send them to prison to serve the remaining part of the

sentence at this belated stage.

10. The case record reveals that after being

arrested, the petitioners have spent some days in custody.

Undoubtedly, 18 years have passed in the meantime.

Therefore, taking into consideration the social

background of the petitioners and lack of any criminal

antecedents to their names, this Court also feels that it

would be too harsh to send them to prison at this

distance of time to serve the remaining part of the

sentence. As such, it is deemed proper to extend the

benefit of the P.O. Act to the petitioners.

11. In the result, the criminal revision is allowed in

part. The impugned order of conviction is confirmed, but

the sentence imposed is modified to the extent that the

petitioners shall be released under the provisions of

Section 4 of P.O. Act. The petitioners are directed to

appear before the trial Court on 02.05.2022 for receiving

further instructions, failing which, the trial Court shall

pass necessary orders to take them into custody to serve

the remaining part of their sentences.

12. The CRLREV is disposed of accordingly.

..............................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack The 5th April, 2022/ A.K. Rana