Afr Dinabandhu Lenka & Another vs State Of Odisha
2023 Latest Caselaw 2737 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                             CRA No. 29 of 1995

       (An application under Sub-Section (2) of Section 374, read with
       Section 382, Criminal Procedure Code, 1973)
                                   ---------------

AFR    Dinabandhu Lenka & Another                     ......    Appellants

                             -Versus-

       State of Odisha                               ......   Respondent

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Appellants      :     M/S. D.P.Dhal,
                                   A.K.Acharya, D.K.Das, B.R. Panda
                                   Advocates.

          For Respondent     :     Mr. R.N.MIshra-II
                                   Additional Government Advocate
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                                  JUDGMENT

4th April, 2023

SASHIKANTA MISHRA, J. The appellant questions the correctness

of the judgment of conviction and sentence passed on

07.01.1995 by learned Additional Sessions Judge, Bolangir

in S.T. Case No. 32/190 of 1993 whereby he was convicted

for the offence under Section 332 IPC and sentenced to

undergo R.I. for 8 months and to pay fine of Rs. 500/-, in

default, to undergo further R.I. for one month. Be it noted

here that the appeal was originally filed by two appellants

including the present appellant and one Ramakanta Biswal

but, during pendency of the appeal, the said Ramakanta

Biswal having expired his appeal has abated.

3. Prosecution case, briefly stated, is that on

27.03.1993 the informant Swapna Ranjan Mohapatra, S.I. of

Soro police station, along with APR personnel consisting of

one Havildar, one Naik and eight other armed constables

were on duty and had gone to apprehend the culprits in

another case in the police jeep. While performing duty as

such near Sabira Railway Passenger Halt Platform, they saw

some persons dragging and manhandling a man named

Rabindra Sial on the railway platform. The deceased

appellant, Ramakanta Biswal was one of the culprits named

in the FIR. When the informant and his staff intervened, the

culprits assaulted then by lathis, iron rod and knife etc. They

were assisted by 15-20 other persons who rushed to the spot

at that time. The informant identified the deceased appellant

Ramakanta Biswal who assaulted him from the back with an

iron rod. Accused Debendra also dealt a lathi blow from his

back side. The other personnel were also assaulted. The

informant and others sustained bleeding injuries. On his

return to the police station, the informant lodged the FIR on

the basis of which Soro P.S. Case No. 81 of 1993 was

registered under Sections 395/397/332 IPC followed by

investigation. After completion of investigation charge-sheet

was submitted against them also under aforementioned

sections.

4. The accused persons took the plea of denial.

5. To prove its case, prosecution examined 13 witnesses

including the informant as P.W. 1 and other members of the

police party. P.W. 9 is the person who was allegedly man

handled by the accused persons at the spot. P.W. 12 is the

Doctor who examined the injured persons and P.W.13 is the

Investigating Officer. Besides, prosecution proved 14

documents and 3 material objects. Defence did not adduce

any evidence, either oral or documentary.

6. After appreciating the evidence on record and mainly

placing reliance on the evidence of P.W.1, 2, 3 and 11, the

trial court held that the offence under Section 395 is not

proved but there is clear evidence of commission of the

offence under Section 332 by the accused persons. On such

finding the accused persons were convicted and sentenced as

already stated hereinbefore.

7. Heard, Mr. B.S.Das Parida, learned counsel for the

appellant and Mr. S.N.Das, learned Additional Standing

counsel.

8. Assailing the findings of the trial court Mr. Das Parida

contends that no Test Identification Parade being conducted

in the case and the accused persons identified being

identified for the first time by the witnesses in the Court, the

order of conviction based on such testimony becomes

vulnerable. He further contends that the prosecution case as

laid is patently unbelievable in view of the fact that P.W.9, for

whose rescue the entire incident is said to have occurred,

turned hostile. Alternatively it is contended by Mr. Das

Parida that the incident took place nearly 30 years back and

the accused appellant has spent more than the period of

sentence of imprisonment during trial. Therefore, a lenient

view should be taken in the matter of sentence.

9. Mr. S.N.Das on the other hand, submits that there is

clear evidence of the commission of the offence inasmuch as

the informant P.W. 1 deposed about the occurrence giving

vivid details thereof and nothing substantial was elicited from

him in cross-examination to disbelieve his sworn testimony.

He further submits that there being no evidence of any prior

enmity between the informant and the accused there is no

reason as to why he would depose falsely only to implicate

them in the case. As regards the sentence imposed, Mr. Das,

submits that having regard to the nature of the offence that

is, assault on police officer while on duty, no leniency should

be shown to the accused.

10. A perusal of evidence of the informant P.W.1 reveals

that, apart from fully corroborating the FIR story he clearly

deposed that while an attempt was being made to rescue

Rabindra Sial who was being assaulted by the accused

persons, he (informant) was assaulted on his head from the

back side and on turning around he saw accused Ramakanta

Biswal (deceased appellant) holding an iron rod who then

dealt a blow to his back with that iron rod. He further

deposed that then accused Dinabandhu Lenka (appellant)

dealt a lathi blow to his back. He has further deposed about

the specific overt acts of the other accused persons but the

same is not relevant in the present context. This Court

further finds that P.W.1 was cross-examined extensively.

Though he admits that there was doad-shedding in the

platfrom at the time of occurrence yet he was acquainted

with the accused whom he knew before the occurrence.

Moreover, he specifically admitted that since the accused

persons used to visit the Railway Station during night time

he had been there to apprehend them. Thus, there is no

reason to doubt his version that he had identified both the

accused persons at the time of assault. The fact that he

sustained injuries is proved through the Doctor examined as

P.W.12 who proved the injury report marked Ext. 8. In his

deposition he stated about the details of the injuries

sustained by the informant and the other injured namely,

Amba Prasad Singh. The injuries are consistent with the

version of P.W.1 that the same were caused by a weapon

used by the accused persons from the back. It has been

argued that Rabindra Sial (P.W.9) did not support the

prosecution case. What would be the effect of the above ?

According to this Court, merely because P.W.9 turned hostile

will not by itself demolish the case entirely in view of the

other ocular and medical evidence establishing the

commission of the crime. It was further argued that since

there was darkness and no TI parade was conducted, the

identification by P.W. 1 of the accused persons in the Court

could not have been relied upon by the trial Court. This

Court is not impressed with such argument for the reason

that P.W. 1 has not only named the accused persons in the

FIR but also has deposed that he knew them before the

occurrence as they used to visit the railway station.

Moreover, this Court after going through the evidence of the

witnesses does not find that the question of identity of the

accused person was ever raised by the defence by making

appropriate suggestions during cross examination. As it

appears, such plea is being taken for the first time before this

Court.

11. After going through the judgment passed by the trial

Court, this Court finds that the evidence of P.Ws. 1,2, 3 and

11 have been relied upon along with the medical evidence on

record. Having independently gone through the evidence of

the aforementioned witnesses this Court no finds no reason

to differ from the conclusions drawn by the trial court so as

to be persuaded to interfere. Thus, this Court also finds that

the offence under Section 332 of IPC is clearly established

from the evidence on record.

12. As regards the sentence, the accused was sentenced to

Rigorous Imprisonment for eight months. Undoubtedly the

occurrence took place nearly 30 years back. The accused was

aged about 22 years at the relevant time and therefore, must

be now aged about 52 years. Prosecution has not shown any

criminal activity of the accused after the occurrence. Further,

the accused has spent considerable time in prison during

trial. Therefore, in the considered view of this Court, ends of

justice would best be served if the sentence is modified to the

period already under gone instead of directing the accused to

serve the remaining part of his sentence at this belated stage.

13. In the result, the appeal is allowed in part. The

impugned judgment of conviction is maintained. The

sentence is however modified to the period already under

gone.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, 4th April, 2023/ Deepak