Afr Lingaraj Sethi And Another vs State Of Odisha
2022 Latest Caselaw 2335 Ori

                  ORISSA HIGH COURT: CUTTACK

                        CRLREV No. 994 of 2013

       (An application under Section 401 read with Section 397 of
       Cr.P.C. against the judgment passed on 20.08.2013 by the
       learned Addl. Sessions Judge, Bhanjanagar.
                               ---------------

AFR    Lingaraj Sethi and another          ......     Petitioners


                                       -Versus-

       State of Odisha                     ......   Opp. Party


       Advocate(s) appeared in this case:-
       _________________________________________________________
       For Petitioner       :    M/s. A.R. Dash,
                                 B.N. Mohapatra, K.S. Sahu,
                                 & L.D. Achari, Advocates

       For Opp. Party       :    Mr. A. Pradhan,
                                 Additional Standing Counsel
       _______________________________________________________

            CORAM
               JUSTICE SASHIKANTA MISHRA

                                  ORDER

nd 22 April, 2022

SASHIKANTA MISHRA, J. In the present revision the petitioners

seek to challenge the judgment dated 20.08.2013 passed

by learned Addl. Sessions Judge, Bhanjanagar in Criminal

Appeal No. 03 of 2007, whereby the judgment dated

15.09.2006 passed by Asst. Sessions Judge, Bhanjanagar

in Sessions Case No. 74 of 2002 was confirmed. By the

aforementioned judgment, learned Asst. Sessions Judge

(Trial Court) convicted the petitioners for the offence under

Sections 323/326/307/34 IPC and sentenced them to

undergo R.I. for five years and to pay fine of Rs.5,000/-, in

default, to undergo R.I. for six months for the offence

under Section 307 of IPC and R.I. for three years and to

pay a fine of Rs.1,000/-, in default to undergo R.I. for two

months for the offence under Section 326 of IPC and R.I.

for six months and fine of Rs.500/-, in default to undergo

R.I. for two months for the offence under Section 323 IPC.

All the aforementioned offences were directed to run

concurrently.

2. The prosecution case, in brief, is that on 08.05.2002,

at about 8 p.m. when the informant and his father were

present in their house and were discussing about the

marriage of their daughter, the petitioner-Lingaraj Sethi

being armed with a tangia and the petitioner-Krushna

Sethi armed with a lathi came to the spot and abused

them in obscene language and demanded to know as to

why they were discussing about him. Thereafter, the

accused-Lingaraj Sethi dealt a blow with the tangia on the

neck of victim, Daya Sethi and accused-Krushna dealt a

blow with lathi on the hand of the said Daya Sethi. As a

result of the injury, the victim sustained severe bleeding

injuries. Since some villagers arrived, the petitioners fled

away. The informant, Abhi Sethi lodged FIR before OIC,

Buguda Police Station leading to registration of P.S. case

and investigation was taken up. After completion of

investigation, charge sheet was submitted against the

accused persons for the aforementioned offences.

The accused took the plea of denial.

Prosecution examined as many as 14 witnesses

including the informant, Abhi Sethi as P.W.-1 and injured,

Daya Sethi as P.W.-4. Besides, the doctor, who had

examined the injured after the occurrence and the I.O.

were also examined as witnesses. Defence did not examine

any witness, but proved certain documents from its side,

which were marked as Exts. A, B and C.

The trial court after analyzing the evidence adduced

by the prospection held that the offence under Sections

341 and 506 are not made out. However, in so far as the

offences under Sections 323, 326, 307 and 294 are

concerned, the evidence clearly establishes the

commission of the same. As such, the trial Court while

acquitting the accused persons of the offence under

Section 341/506 of IPC, convicted them for the offence

under Section 323, 326, 307 and 294 of IPC and

sentenced them as aforesaid. The petitioners carried the

matter in appeal to the Court of Session, which was heard

and disposed of by learned Addl. Sessions Judge. Several

grounds were raised before the learned lower appellate

Court but it was held that there was no infirmity or

irregularity in the judgment of conviction and sentence

passed by the leaned trial Court and therefore, the order

of the trial Court was confirmed.

Feeling further aggrieved, the petitioners have

approached this Court in the present revision.

3. Heard Mr. A.R. Dash, learned counsel for the

petitioners and Mr. A. Pradhan, learned Addl. Standing

Counsel of the State.

4. In assailing the impugned judgments, Mr. Dash

contends that both the courts below have failed to

appreciate the fact that there is clear evidence regarding

previous enmity between the parties and hence the

possibility of false implication could not have been ruled

out. Secondly, learned courts below have failed to

appreciate the material discrepancies and inconsistencies

in the evidence of the informant and the injured which

create a strong doubt in the case of the prosecution. It is

also contended that the material objects were never seized

or sent for chemical examination to establish the case of

the prosecution that the blood stains present in the said

weapons related to human blood. It is also argued that

even assuming the case of the prosecution on its face

value, the offence under section 307 of IPC is not made

out, inasmuch as there is no proof of any premeditation or

intention on the part of the accused persons to kill the

injured.

5. On the other hand, Mr. Pradhan, learned Addl.

Standing Counsel has supported the impugned judgments

by contending that the findings of the trial Court are

based on evidence on record and the so-called

discrepancies pointed out by the defence are too minor to

be taken note of. It is further contended that in so far as

the evidence relating to prior enmity is concerned, the

same by itself cannot wash away the clear and cogent

evidence regarding commission of the offence against the

injured victim by the accused persons. On the ground that

the M.Os. were not sent for medical examination, it is

argued that it was never the defence case that the blood

stains were not human. Moreover, when the evidence of

assault is there and the material object which is the

weapon of offence was produced in the Court, there is no

reason to discard the evidence only because the weapon of

offence was not sent for chemical examination. On the

question of absence of premeditation or intention to kill

the injured victim, Mr. Pradhan contends that on the face

of clear evidence that the accused persons came to the

spot being armed with deadly weapons and also assaulted

the injured on the vital part of his body and there being

evidence that such injuries are likely to cause death, the

offence under Section 307 is automatically made out.

6. A perusal of the lower Court record reveals that the

prosecution had examined as many as 14 witnesses, out

of whom P.W.-1 is the informant and P.W.-4 is the injured

victim. In so far as the other witnesses are concerned, as

many as six witnesses turned hostile during trial and

hence their evidence was not found to be useful to the

case of the prosecution by the trial Court. In so far as the

remaining eight witnesses are concerned, apart from P.Ws.

1 and 4 there are two other persons who claim to have

arrived at the spot after the occurrence and also claimed

to have seen the accused persons assaulting the injured.

They are P.W-10 and P.W.-11.

7. A reading of the evidence of P.W.-1 shows that he has

vividly described the occurrence as stated in the FIR

lodged at the earliest possible opportunity after the

occurrence. The so-called inconsistencies and

discrepancies as well as the contradictions in his evidence

pointed out by learned counsel for the petitioners are not

such as to discredit his entire testimony. As it appears,

P.W.-1 has withstood the test of cross-examination or

rather detailed cross-examination by the defence and

nothing has been elicited from his mouth so as to discredit

his sworn testimony. In so far as the P.W.-4, the injured is

concerned, he has also described the occurrence, as

reported in the FIR. He was also cross-examined at length

but nothing substantial was brought from out from his

mouth so as to view his testimony with suspicion. It is

also evident that there was prior civil dispute between the

parties and also a criminal case, wherein the accused,

Krushna was the informant while the present informant

and his father (P.W.-4) were the accused. Both P.Ws. 1

and 4 have admitted such fact in their cross-examination.

However, in view of their clear evidence regarding the

occurrence, which is corroborated by the medical evidence

as well as the evidence of P.Ws. 10 and 11, there is no

reason to hold that they were deposing falsely as a

counterblast to the case instituted against them at the

instance of the accused persons prior to the occurrence.

Law is also well settled that the plea of prior enmity can be

a double-edged weapon, inasmuch as if the occurrence is

otherwise proved by medical evidence or otherwise, it

would not be not prudent to expect a person to falsely

implicate some other person and thereby allow the actual

offender to escape. Therefore, the plea raised by the

accused is not acceptable.

8. Apart from the evidence of P.Ws. 1 and 4 regarding

the presence of injuries on the body of the injured, there is

clear-cut evidence of the doctor, who was examined as

P.W.-14. He clearly described the injuries as follows:

"Injury No1: One cut injury of 5"x ½ x ½" over front of chest and left side of neck extending from 1" above medial end of left clavical bone. Two medile of storunum bone with bleeding.

Injury No.2: One fracture of medial end of left clavical bone below the above injury.

Injury No.3: One continusion 3"x1" over left arm."

The MO-1, which is the axe used in the occurrence,

was sent to P.W.-14 for his opinion. After examining the

same, he had clearly opined that the injury at serial no.1

was possible to be caused by such weapon. It has been

feebly suggested by defence during cross-examination of

P.W.-4 that the injuries were caused because of fall from

bullock cart, yet the same is not at all convincing because

such a suggestion was given out of blue without creating

any background for the same. It is needless to mention

that if the defence sets up a specific plea, the same must

be reflected in the cross-examination of the prosecution

witnesses. A solitary suggestion given to a witness cannot

be taken note of unless the background thereof is created.

Therefore, the plea of false implication as well as of the

injuries caused due to fall from bullock cart falls to the

ground. As regards non-sending of the material objects for

chemical examination, it is seen that though such a plea

has been taken, yet the same was also never suggested to

the prosecution witnesses by the defence during cross-

examination. Significantly, it was not even suggested to

the doctor during cross-examination that the blood stain

found on the axe was not of human blood. Evidently, the

plea so raised by the accused is just an after though and

hence, not acceptable.

9. As regards the argument that the offence under

Section 307 of IPC is not made out from the evidence on

record, it is seen that the prosecution was able to prove

that the accused persons came to the spot being armed

with an axe and lathi respectively and also assaulted the

injured causing bleeding injury on the left side of his neck

and a fracture injury on his left arm. There is also clear

evidence that there was previous enmity between the

parties including a criminal case instituted against the

informant and his father (injured) at the instance of the

present accused persons. The question is, can it be said

from the evidence that the petitioners had come to the

spot and had assaulted the injured with a definite

intention to do away with his life. While the prosecution

would contend that the site of the injuries and the nature

of the weapon used for causing them are vital indicators of

such an intention, learned counsel for the petitioner on

the other hand, argues that at best it would be an

intention to cause an injury but not an intention to kill.

10. Law is well settled that intention is a mental

condition that can to be inferred not only from the nature

and site of the injuries and the weapon of offence used but

also from the surrounding circumstances. In the instant

case it is established that the accused persons came to the

spot and first abused the informant and his father and

then accused, Lingaraj Sethi dealt a blow with an axe on

the neck of the injured while accused Krushna dealt a

blow with a lathi on his arm. Significantly, there was no

further assault. Though it is stated in the FIR that the

matter subsided and the accused persons left the spot by

threatening that they would kill the injured the next time

when the villagers arrived at the spot yet, this part of the

evidence has not been corroborated by any independent

witness. Be that as it may, fact remains that there was

only one blow by accused Lingaraj Sethi though on the

neck of the deceased and similarly there was a single blow

given by accused Krushna with a lathi on the arm of the

injured. Had there been a definite intention to kill the

injured, the accused persons obviously would not have left

the place after dealing only one blow, rather it would be

reasonable to suppose that they would have continuously

assaulted the injured causing even more grievous injuries.

Significantly, the injury no. 1 and 3 are simple in nature.

That apart, if it was the intention to kill the injured, the

accused persons could have not only continued with the

assault but also would have caused injuries on other vital

parts of the body, which they did not, rather the evidence

unerringly shows that they left the place after dealing only

one blow each. So, from this, a definite intention or

premeditation is difficult to presume or infer. To the above

extent therefore, this Court is inclined to accept the

contentions raised by learned counsel for the accused

persons. After independently assessing the evidence on

record this Court is of the view that though there was a

clear case of assault yet, the evidence on record do not

definitely suggest an intention to kill on the part of the

accused persons. Therefore, the judgment of conviction

under Section 307 does not appear to be justified.

11. However, this Court finds nothing wrong in the order

of conviction under Section 326 of IPC is concerned. So

also, this Court finds no infirmity much less illegality in

the order of conviction in respect of the offences under

Sections 323 and 294 of IPC. However, as already

discussed, this Court cannot agree with the order of

conviction in so far as it relates to the offence under

Section 307 of IPC. To the above extent therefore, the

impugned order deserves to be modified.

12. On the question of sentence, it is submitted by

learned counsel for the petitioner that learned Court below

should have considered the fact that the occurrence had

arisen out of a prior dispute and at the spur of the

moment. Further, the accused persons are related to the

injured and the informant being of the same family. That

apart, the occurrence took place more than 20 years back

and presently both the accused persons are of advanced

ages. Therefore, considering all these aspects, the accused

persons should have been released as per provisions of the

Probation of Offenders Act, 1958.

13. Mr. Pradhan, on the other hand argued that the

offence being clearly proved and the learned trial Court

having considered all the circumstances before sentencing

the accused persons, there is no justification for

interfering therewith.

14. As it appears, petitioner no.1 was aged about 55

years and petitioner no.2 was aged about 60 years at the

time of the occurrence, i.e., in the year 2002. Twenty years

have elapsed in the meantime, thus, both of them are now

aged 75 and 80 years respectively. That apart, there is no

evidence that the accused persons have any criminal

antecedents to their names. This Court is therefore of the

considered view that sending them to prison to serve the

remaining part of their sentence at this belated stage

would be too harsh. Hence, this Court is of the considered

view that ends of justice would be best served if the

accused persons are released as per the provisions of the

Probation of Offenders Act, 1958.

15. In the result, the Criminal Revision is allowed in

part. The impugned order passed by the trial Court in

convicting the accused persons for the offence under

Section 307 of IPC is set aside, but the same in so far as it

relates to the offences under Sections 323/326 of IPC is

confirmed. Further, the sentence passed by the trial Court

is modified to the extent and that instead of undergoing

imprisonment and paying fine as ordered by the trial

Court, the accused persons shall be released as per the

provisions under Section 4 of the Probation of Offenders

Act, 1958. For the above purpose, the accused petitioners

are directed to appear before the trial Court on 15th May,

2022 to receive further instructions. In the event the

petitioners do not appear on the date fixed, necessary

orders shall be passed by the trial Court to commit them

to prison to serve the remaining part of the sentence as

originally passed.

16. The CRLREV is disposed of accordingly.

Sd/-

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack The 22nd April, 2021/ A.K. Rana