Afr Uttam @ Kali Charan Diggar vs State Of Odisha & Another
2022 Latest Caselaw 2971 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                      CRLREV No. 1289 of 2007

       An application under Section 401 of the Code of Criminal
       Procedure, 1973.
                            ---------------
AFR    Uttam @ Kali Charan Diggar        ......          Petitioner

                            -Versus-

       State of Odisha & another           .......      Opp. Parties

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Petitioner     :       M/s. D.P. Dhal, Sr. Advocate
                                    along with M/s. B.S. Dasparida
                                    A.K. Mishra & S.Mohapatra,
                                    Advocates

          For Opp. Parties :        Mr. Priyabrata Tripathy,
                                    Addl. Standing Counsel

                                 M/s. A.K. Biswal, S.S. Ray,
                                 & A.P. Rath, Advocates
                                 [O.P. No.2]
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                                 JUDGMENT

5th July, 2022

SASHIKANTA MISHRA, J.

By judgment of conviction and sentence passed

by the C.J.M.-cum-Asst. Sessions Judge, Baripada in S.T.

case No.11/144 of 2005, the petitioner was convicted for

the offence under Sections 324/307 of IPC and sentenced

to undergo R.I. for one year for the offence under section

324 of IPC and for 5 years for the offence under section

307 of IPC and to pay a fine of Rs.5000/-, in default, to

undergo R.I for one year more for the offence under

section 307 of IPC with all the sentences directed to run

concurrently. The said judgement was confirmed in appeal

by the Additional District and Sessions Judge, Baripada

in Crl. Appeal No.45/24 of 2007. The petitioner has

therefore approached this Court in the present revision

challenging the aforementioned judgements.

2. The facts of the case, briefly stated as that the

petitioner married one Gita Diggar according to their caste

and customs and at the time of marriage cash of

Rs.10,000/- was given besides gold ornaments, utensils

and other household articles towards dowry. After the

birth of a girl child, the petitioner and his family members

started treating the victim with cruelty demanding

Rs.25,000/- as further dowry. The victim informed her

mother of the same who attempted to resolve the matter

amicably but without success. Since the victim was still

treated with cruelty, her mother took her to her house

apprehending danger to her life. On 09.10.2003 at about

11 AM when the victim had gone to the market to

purchase clothes along with her grandmother-Fulamani

Barik, the accused suddenly came there being armed with

a knife and stabbed the victim with it 3 to 4 times after

chasing her. As a result, she sustained injuries on her

belly and left-hand. The matter was thereafter reported by

the the informant at the police station leading to

registration of Baripada Town P.S. Case No. 237/2003.

Upon completion of investigation charge sheet was

submitted against the petitioner and his mother under

sections 498-A/324/325/307/34 IPC read with section 4

of D.P. Act.

During trial, prosecution examined 26

witnesses out of whom, P.W.-7 is the injured victim-Gita

Diggar, P.W.-1, P.W.-2 and P.W.-19 are the eyewitnesses

and P.Ws.-14 and 18 are the doctors who examined the

injured victim. The trial court found the victim's version

clear and consistent and fully corroborated by the

evidence of the eyewitnesses P.Ws.-1 and 2 as also by the

medical evidence. The trial court however did not find

adequate evidence regarding the allegations of cruelty

relating to demand for dowry. As such, the trial court held

the accused not guilty of the offence under section 498-A

of IPC but found him guilty of the offence under section

324/307 IPC and sentenced him as aforesaid. The

petitioner carried the matter in appeal to the Court of

Session. The lower appellate court also scanned the

evidence on record in detail but found no reason to

interfere with the order of conviction and sentence. As

such, the lower appellate court confirmed the order of

conviction and sentence passed by the trial court.

Feeling further aggrieved, the petitioner has

approached this Court in the present revision.

3. Heard Sri B.S. Dasparida, learned counsel for

the petitioner and Sri P. Tripathy, learned Addl. Standing

Counsel for the state.

4. Sri B.S. Dasparida has assailed the impugned

judgments by contending that material witnesses were not

examined. Other material witnesses, such as, the

shopkeepers of the market did not support the

prosecution. It is also contended that the evidence of

P.W.-2 should not have been relied upon by the trial court

as she is admittedly related to the injured victim. It is

further contended that there is evidence of a scuffle

between the accused and the injured victim in course of

which the accused had also sustained some injury and

therefore the possibility of the victim being the aggressor

cannot be ruled out. Alternatively, it is contended that the

petitioner is now aged about 50 years and the differences

between him and his wife have since been resolved and

both are now residing peacefully with each other and their

children. Therefore, the petitioner should be released as

per the provisions of P.O. Act or must be sentenced to the

period already undergone by him.

5. Sri Tripathy has supported the impugned

judgments by contending that the same is based on clear

and unimpeachable evidence of the injured victim as fully

corroborated by eyewitnesses and medical evidence. There

is therefore no reason for this Court to interfere.

6. In order to appreciate the contentions

putforth by the petitioner, this Court has gone through

the evidence on record independently. It is seen that the

victim has clearly and consistently testified about the

occurrence vividly. According to her, the occurrence took

place in front of a cloth store of the market at about 11:30

AM. The accused suddenly came being armed with a knife

and stabbed her in her belly as a result of which she bent

down whereupon the accused dealt 2 to 3 blows with the

knife on her arm. Her version has been corroborated by

P.W.-1 in material particulars. P.W.-3 who was also

present at the spot fully corroborates the version of the

injured victim. The doctors who examined the victim after

the incident have described the injuries in detail as

follows:

"I. Stab wound covered with fresh blood of size 3 cm x 2cm x 2 cm over the lateral side of left forearm 3 cm below the left elbow joint.

II. Stab wound covered with fresh blood size 3 cm x 2 cm x 2 cm over the lateral side of left arm 5 cm above the left elbow joint. The above injuries are simple and caused by sharp pointed cutting weapon. III. Stab wound covered with fresh blood of size 3 cm x 2 cm x 2 cm over lateral side of

left arm 1 cm below and parallel to injury No. II.

IV. Stab would covered weith fresh blood of size2.5 cm x 2.5 cm x muscle deep over the left chest. Opinion to be obtained from the surgery specialist. The injury is caused by sharp pointed cutting weapon. V. Stab would covered with fresh blood of size 5 cm x 2.5 cmx deep into the abdomen over the lumbar region of let abdomen. Opinion to be obtained from the surgery specialist The injury is caused by sharp cutting pointed weapon;

and

I. Incise would 3cm x ½ cm x skin deep at the base of the index finger.

     II.     Incise would 4 cm x ½ cm skin deep it is
             just below the I injury.

Thus, the version of the injured is fully supported by the

eyewitness account as also by the opinion of the doctors.

Nothing substantial has been elicited from either the

injured or the eyewitnesses to even remotely disbelieve

their testimony. Under such circumstances, this Court

finds that the trial court committed no error in convicting

the accused for the aforementioned offences.

7. As regards the contentions raised by the

petitioner that some material witnesses were not

examined by the prosecution, it is to be noted that law of

evidence places importance more on the quality rather

than quantity of evidence. As has already been noted

hereinbefore, the version of the injured victim has been

corroborated by two eyewitnesses and there is nothing on

record to even remotely suggest that they had any justified

reason to depose falsely against the accused. As to the

contention that the shopkeepers of the market had not

supported the prosecution, the same pales into

insignificance in view of the clear and consistent as well

as credible evidence of the injured as corroborated by the

eyewitnesses' account. That apart the medical evidence is

fully consistent with the version of the victim. Therefore

even if the shopkeepers did not come forward to support

the prosecution, the same does not mean that the

prosecution case must of necessity be thrown to the

winds. The contention that P.W.-2 being related to the

injured had a reason to falsely depose against the accused

also cannot be accepted because in view of the clear

evidence of the injured having sustained multiple stab

wounds on her person, it is highly irreparable that a close

relation of the injured would falsely implicate another

person and allow the actual offender to go scot-free. It has

been argued that the accused also sustained some

injuries which suggest that the injured was the aggressor.

This is a fallacious argument in view of the very nature of

injuries sustained by the accused and the injured. It is

seen that none of the contentions raised are strong

enough to persuade this Court to take a different view

than what was taken by the trial court and concurred by

the lower appellate court.

8. On the question of sentence, it is contended

that the petitioner and the injured being husband and

wife are now residing peacefully and happily and that the

occurrence in question had taken place nearly 20 years

ago. It is further contended that the children of the couple

are now grown up. Whatever the petitioner had done at

the relevant time was in a fit of anger and not out of a

definite intention to kill his wife. After considering the

submissions as above, this Court finds some force in it.

The petitioner is aged about 50 years presently. No

criminal antecedents are reported against him. As has

been submitted, the petitioner and his wife are presently

residing peacefully and happily. It appears from the case

record that the petitioner had spent nearly one and half

years in prison during trial and appeal. Therefore taking

all the above facts into consideration, this Court is of the

considered view that ends of justice would be best served

if instead of sending the petitioner to serve the remaining

part of the sentence in prison, the sentence is modified to

the period already undergone by him.

9. In the result, while confirming the order of

conviction passed by the trial Court and confirmed by the

lower appellate Court, the sentence imposed is modified to

the period already undergone by the petitioner.

10. The CRLREV is disposed of accordingly.

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

Sashikanta Mishra, Judge

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