From Judgment And Order Dated ... vs State Of Odisha
2022 Latest Caselaw 5693 Ori

                     IN THE HIGH COURT OF ORISSA, CUTTACK

                                      JCRLA No.121 Of 2017

        From judgment and order dated 07.07.2017 passed by the
        Additional Sessions Judge, Padampur in C.T. Case No.100 of
        2016.
                                           ----------------------------

               Nila Muna                              .......                            Appellant


                                                   -Versus-


               State of Odisha                        .......                            Respondent


                      For Appellant:                     -       Mr. Akhaya Kumar Beura
                                                                 Amicus Curiae


                      For Respondent:                    -        Mr. Rajesh Tripathy
                                                                  Addl. Standing Counsel
                                           ----------------------------

        P R E S E N T:

                          THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment: 19.10.2022

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S.K. SAHOO, J. The appellant Nila Muna faced trial in the Court of

learned Additional Sessions Judge, Padampur in C.T. Case

No.100 of 2016 for commission of offences punishable under

sections 324/307 of the Indian Penal Code on the accusation that // 2 //

on 12.03.2016 at about 7.00 a.m. in village Barmunda, he

voluntarily caused hurt to Manohar Chhatar (P.W.2) by means of

an axe (M.O.I) and he had intention or knowledge and under

such circumstances that if by that act, he caused the death of

P.W.2 he would have been guilty of murder.

The learned trial Court vide impugned judgment and

order dated 07.07.2017 found the appellant guilty of both the

charges and sentenced him to undergo imprisonment for five

years and to pay a fine of Rs.500/- (rupees five hundred), in

default, to undergo imprisonment for one month for the offence

under section 307 of the Indian Penal Code and imprisonment for

one year and to pay a fine of Rs.500/- (rupees five hundred), in

default, to undergo imprisonment for one month for the offence

under section 324 of the Indian Penal Code and both the

sentences were directed to run concurrently.

2. The prosecution case, as per the first information

report (Ext.1) lodged by Biswanath Karkaria (P.W.1) before the

Officer in-charge of Bijepur police station on 12.03.2016 is that

on that day at about 7 O' Clock in the morning, P.W.2 was

assaulted by the appellant by means of a 'tangia'. It is further

case of the prosecution as per the first information report that

the appellant was frequently quarreling with the sister of the

// 3 //

informant and P.W.2 was opposing to the same for which the

occurrence took place.

As it appears that the informant (P.W.1) had two

sisters and the elder one was P.W.3 Kuni Chhatar to whom the

injured Manohar Chhatar (P.W.2) had married and the appellant

had married to the younger sister of the informant.

On the basis of such first information report, Shri

Nirod Das, the Officer in-charge of Bijepur police station

registered Bijepur P.S. Case No.78 dated 12.03.2016 under

sections 324/307 of the Indian Penal Code and directed the S.I.

of Police of Bijepur police station, namely, Bijay Kumar Swain

(P.W.8) to investigate the matter.

During the course of investigation, P.W.8 examined

the informant and visited Bijepur C.H.C. where he examined the

injured (P.W.2) where he was undergoing treatment and then

issued injury requisition in favour of P.W.2 to the Medical Officer,

Bijepur C.H.C. P.W.8 visited the spot and prepared the spot map

(Ext.5), seized the weapon of offence i.e. one axe lying at the

spot in presence of the witnesses as per seizure list (Ext.2), the

appellant was arrested on 14.03.2016 and forwarded to the

Court on the very day. The Investigating Officer received the

injury report from the concerned Medical Officer and made a

// 4 //

query to him regarding possibility of the injury with such axe and

received the opinion and on completion of investigation, he

submitted charge sheet against the appellant under sections

324/307 of the Indian Penal Code on 22.04.2016.

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 on

26.10.2016 framed charges against the appellant as already

stated and since the appellant refuted the charges, pleaded not

guilty and claimed to be tried, the sessions trial procedure was

resorted to prosecute him and establish his guilt.

4. During course of trial, in order to prove its case, the

prosecution has examined as many as eight witnesses.

P.W.1 Biswanath Karkaria is the informant in the

case and the brother-in-law of the injured (P.W.2) and the

appellant and also a post occurrence witness. He stated that

when he arrived at the spot, he noticed P.W.2 was lying at the

spot with bleeding injury on his waist and ascertained from

P.W.2 that the appellant injured him with an axe in order to kill.

He further stated about the shifting of P.W.2 to Bijepur Hospital

for treatment. He proved the F.I.R. (Ext.1).

// 5 //

P.W.2 Manohar Chhatar is the injured in the case and

he supported the prosecution case.

P.W.3 Kuni Chhatar is the wife of injured (P.W.2) and

also sister-in-law of the appellant. She stated that after hearing

about the occurrence, she came to the spot and found P.W.2

sustained bleeding injury and she also noticed the weapon of

offence lying at the spot. She further stated about the shifting of

P.W.2 to Bijepur Hospital and further stated that prior to the

occurrence, the appellant tortured his wife and the appellant

suspected that P.W.2 was having illicit relationship with his wife.

P.W.4 Sadhu @ Budhu Khamari, P.W.5 Sudam

Khamari and P.W.6 Subal Khamari are the eye witnesses to the

occurrence. They have stated about the assault on the injured

(P.W.2) by the appellant with an axe. P.W.4 and P.W.5 are also

the witnesses to the seizure of weapon of offence i.e. axe.

P.W.7 Dr. Radheshyam Agrawal was the Medical

Officer attached to Bijepur Hospital and he examined the injured

(P.W.2) and found one incised wound over the left flank just

below the left costal cartiledge. He proved the injury report

(Ext.3).

// 6 //

P.W.8 Bijay Kumar Swain was the S.I. of Police of

Bijepur police station, who is the Investigating Officer in the

case.

The prosecution exhibited six numbers of documents.

Ext.1 is the F.I.R., Ext.2 is the seizure list, P.W.3 is the injury

report, Ext.4 is the injury requisition, Ext.5 is the spot map and

Ext.6 is the emergency O.P.D. Register of C.H.C., Bijepur.

The prosecution also proved one material object. The

weapon of offence 'tangia' (axe) was marked as M.O.I.

No witness was examined on behalf of the defence.

5. The appellant admitted to have assaulted the injured

(P.W.2) in his accused statement.

6. The learned trial Court after assessing the oral as

well as documentary evidence on record came to hold that the

evidence of the prosecution witnesses is found to be clear,

cogent and trustworthy and the same has remained unshaken

and the defence has not elicited any material contradiction from

the mouth of either the injured-victim and the witnesses

examined on behalf of the prosecution. The learned trial Court

further held that giving of second blow finds ample corroboration

from all the independent witnesses in this case, namely, P.Ws.4,

// 7 //

5 and 6 as well as the injured-victim and the M.O.I is certainly

an instrument of cutting having the propensity to cause death if

used as a weapon of offence and there is no delay in lodging the

F.I.R. The learned trial Court held that having regard to the part

of the body where the injury was found on the person of the

injured, the weapon of offence used in this case, the conduct of

the accused in inflicting a second blow, he was held guilty under

sections 324/307 of the Indian Penal Code.

7. Though Mr. Arunendra Mohanty, learned counsel was

engaged as the counsel for the appellant but since he was not

present when the matter was called and it is a jail criminal

appeal of the year 2017, Mr. Akhaya Kumar Beura, learned

counsel was engaged as Amicus Curiae for the appellant. He was

handed over paper book and given time for preparation of the

case.

Mr. Akhaya Kumar Beura, learned Amicus Curiae

after going through the case record submitted that there is no

specific motive attributed on the part of the appellant to assault

the injured (P.W.2), who is related to him and the motive

attributed in the first information report as well as during the

trial are discrepant in nature. He further submitted that the

weapon of offence i.e. axe (M.O.I) was not produced before the

// 8 //

doctor for his opinion regarding possibility of the injury sustained

by P.W.2 nor it was sent for chemical examination and no one

has stated to have noticed any blood stain in the axe. He further

submitted that the doctor (P.W.7), who examined the injured

(P.W.2) specifically stated that only one incised wound was

noticed on the left flank just below the left costal cartiledge and

that was opined to be simple in nature. It is further submitted

that though the injured (P.W.2) stated that he remained as an

indoor patient in the hospital for seven days but neither there is

any oral evidence nor any documentary evidence to that effect

and even the Investigating Officer has stated that he could not

say whether the injured was admitted as an indoor patient.

Learned counsel further submitted that the ingredients of the

offence under section 307 of the Indian Penal Code are not

attracted and therefore, the appellant should be given benefit of

doubt and the appeal should be allowed.

Mr. Rajesh Tripathy, learned Additional Standing

Counsel appearing for the State of Odisha, on the other hand,

supported the impugned judgment and submitted that not only

in the question no.1 of the accused statement, the appellant

admitted to have assaulted P.W.2 on the left rib bone near the

waist but also the evidence of the injured has remained

// 9 //

consistent and it is also corroborated by the eye witnesses

P.Ws.4, 5 and 6 and the medical evidence also corroborates the

ocular testimony and the motive behind the commission of crime

has been stated by P.W.3, who is none else than the wife of the

injured and therefore, the learned trial Court has rightly held the

appellant guilty of the offences charged and therefore, the

appeal should be dismissed.

8. Adverting to the rival contentions raised by the

learned counsel for the respective parties and coming to the

evidence of the injured (P.W.2), it appears that he has stated

that on 12.03.2016 at about 7.00 to 8.00 a.m., while he was

returning from the village pond in a bicycle in front of the house

of one Sudam Khamari (P.W.5), the occurrence took place and

the appellant inflicted an axe blow by the side of his left rib

bones near the waist. P.W.2 further stated that on account of

such blow, he fell down from the bicycle and sustained bleeding

injury and then the appellant again attempted to give another

blow but P.W.5 pushed the appellant for which he was saved

from the attack. He further stated that the appellant fled away

leaving the weapon of offence i.e. axe at the spot and then his

family members came at the spot and thereafter, he was

removed to the hospital for treatment. P.W.2 identified the

// 10 //

weapon of offence i.e. axe in Court which has marked as M.O.I.

In the cross-examination, nothing has been elicited to disbelieve

the evidence of the P.W.2. P.W.2 has specifically stated that the

appellant dealt axe blow at a distance of three to four cubits. The

eye witnesses examined in this case are P.Ws.4, 5 and 6 and all

of them have stated about the assault on the injured (P.W.2) by

the appellant with the axe and though the evidence was placed

by the learned Amicus Curiae but it appears that nothing has

been elicited in their cross-examination to disbelieve the

evidence.

P.W.3 has stated that the injured (P.W.2) is her

husband and after hearing about the occurrence, she came to

the spot and found P.W.2 to have sustained bleeding injury and

she also noticed the weapon of offence lying at the spot and she

stated to have removed P.W.2 to Bijepur hospital. P.W.3 further

stated that prior to the occurrence, the appellant used to torture

his wife and the appellant was suspecting that P.W.2 was having

illicit relationship with his wife (appellant's wife). Though P.W.3

was cross-examined at length but nothing has been elicited in

the cross-examination. Of course, she stated that no report was

lodged against the appellant in respect of the alleged torture

meted out to the appellant's wife by the appellant. Even though

// 11 //

the motive behind the commission of crime as mentioned in the

first information report and what stated by P.W.3 are discrepant

in nature, but when the evidence of the injured and other eye

witnesses are consistent, such discrepancies cannot be a factor

to discard the evidence adduced by the prosecution.

9. Coming to the evidence of the doctor (P.W.7), he has

noticed one incised wound of size 3" x ½ cm. x 1 cm. over the

left flank just below the left costal cartiledge and the opinion has

been given that the injury was simple in nature and might have

been caused by sharp instrument. The query was made by the

Investigating Officer regarding possibility of injury by the seized

axe and P.W.7 has opined that the injury was possible by such

weapon. Therefore, the ocular testimony of the witnesses is also

getting corroboration from the medical evidence. Moreover as

rightly pointed out by the learned counsel for the State that to

the question no.1, when the learned trial Court asked referring

to the evidence of the eye witnesses and the injured that they

stated that the appellant inflicted an axe blow on the left rib

bone near the waist of P.W.2, the appellant answered in

affirmative. In view of the available materials on record, I am of

the humble view that the prosecution has successfully

established that on the date of occurrence, the appellant

// 12 //

assaulted the injured (P.W.2) with an axe for which an incised

wound was caused over the left flank just below the left costal

cartiledge.

10. Coming to the contention of the learned Amicus

Curiae regarding absence of any ingredients of the offence under

section 307 of the Indian Penal Code, in case of State of

Maharashtra -Vrs.- Balaram Bama Patil reported in A.I.R.

1983 Supreme Court 305, it is held as follows:-

"9.....to justify a conviction under section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention to the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to the actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under the section. 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

// 13 //

of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."

In case of Rekha Mandal -Vrs.- State of Bihar

reported in 1968 (Volume-8) Supreme Court Decisions

208 wherein 17 injuries consisting of incised and punctured

wounds were caused 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 were cumulatively dangerous to life and the question therefore is whether in these circumstances, it could be held that the offence disclosed was one under section 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."

// 14 //

The Hon'ble Court in the case of Rekha Mandal

(supra) altered the conviction from section 307 to 324 of the

Indian Penal Code.

11. No doubt the injured (P.W.2) has stated that he

remained as an indoor patient in the hospital for seven days, but

the doctor (P.W.7) has not whispered anything in that respect.

The medical report which was proved by the prosecution also

nowhere indicates regarding the indoor hospitalization of the

injured. The injury has been opined to be simple in nature.

Considering the nature of injury and the evidence

adduced by the prosecution, when there is absence of material

that the injury was dangerous to life or sufficient in ordinary

course of nature to cause death, I am of the humble view that

the ingredients of the offence under section 307 of the Indian

Penal Code are not attracted. Accordingly, the conviction of the

appellant under section 307 of the Indian Penal Code is hereby

set aside.

However, so far as the conviction of the appellant

under section 324 of the Indian Penal Code is concerned, I am of

the humble view that the learned trial Court has rightly came to

the conclusion that the prosecution has successfully established

such offence. The sentence which has been imposed for the

// 15 //

offence under section 324 of the Indian Penal Code is also quite

justified.

Accordingly, the Jail Criminal Appeal is partly

allowed.

It appears that the appellant was taken into judicial

custody in connection with this case on 14.03.2016 and neither

he was on bail in the trial Court nor he was granted bail by this

Court during pendency of the Jail Criminal Appeal and thus, he

has already undergone substantive sentence which has been

imposed by the learned trial Court and also confirmed by this

Court for the offence under section 324 of the Indian Penal Code.

Therefore, if the appellant has not yet been released from jail

custody, he shall be set at liberty forthwith, if his detention is not

required otherwise in any other case.

Trial Court records with a copy of this judgment be

communicated to the concerned Court forthwith for information

and necessary action.

Before parting with the case, I would like to put on

record my appreciation to Mr. Akhaya Kumar Beura, the learned

Amicus Curiae for rendering his valuable help and assistance

towards arriving at the decision above mentioned. The learned

// 16 //

Amicus Curiae shall be entitled to his professional fees which is

fixed at Rs.7,500/- (rupees seven thousand five hundred only).

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

S.K. Sahoo, J.

Orissa High Court, Cuttack The 19th October 2022/RKMishra