Orissa High Court
Dayasila Garada vs State Of Odisha on 10 August, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
Criminal Appeal No.5 of 2001
An appeal under section 374 Cr.P.C. from the judgment and
order dated 21.12.2000 passed by the Special Judge, Koraput at
Jeypore in T.R. Case No.161 of 1996.
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Dayasila Garada ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Bikash Karna
For Respondent: - Mr. Priyabrata Tripathy
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 10.08.2023
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S.K. Sahoo, J. The appellant Dayasila Garada faced trial in the
Court of learned Special Judge, Koraput at Jeypore in T.R. Case
No.161 of 1996 for commission of offences under section 323 of
the Indian Penal Code (hereinafter 8the I.P.C.9) and section
3(1)(xi) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (hereinafter 8the 1989 Act9)
on the accusation that on 24.11.1996 at about 10.00 p.m., he
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voluntarily caused hurt to Chandrama Benia (P.W.1) in Sunabeda
and he not being a member of Scheduled Caste or Scheduled
Tribe community, assaulted or used force to P.W.1, who was a
person belonging to Scheduled Caste community, with intent to
dishonour or outrage her modesty.
The learned trial Court vide impugned judgment and
order dated 21.12.2000 has been pleased to hold that the
prosecution of the appellant under section 3(1)(xi) of the 1989
Act has been misconceived and cannot be sustained. However,
the appellant was found guilty under section 323 of the I.P.C.
and he was sentenced to undergo rigorous imprisonment for six
months and to pay a fine of Rs.500/- (rupees five hundred), in
default, to undergo simple imprisonment for fifteen days more.
The Prosecution Case:
The prosecution case, as per the first information
report (hereinafter 8F.I.R.9) presented by Subhas Khilla (P.W.2)
before the Officer in-charge of Sunabeda police station on
25.11.1996, is that on 24.11.1996 at about 10.00 p.m., his elder
sister Chandrama Benia (P.W.1) was going to HAL Hospital to
attend her duty from 8U9 Zone and at that point of time near U.P.
School of 8I9 Zone, the appellant came and asked P.W.1 to sit on
his motorcycle and offered to drop her at the hospital but when
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P.W.1 refused to oblige the same, the appellant got down from
his motorcycle, caught hold of the tuft of the hairs of P.W.1 and
assaulted her on the back with his boot. It is stated that at the
time of lodging the first information report, the doctors
suspected that P.W.1 has sustained fracture of her bone. The
appellant also abused P.W.1 in filthy language and also ridiculing
her caste for which P.W.1 became senseless and when she
regained sense, she found herself to be admitted in the HAL
Hospital. The doctor told the informant (P.W.2) that it would be a
police case and he should shift P.W.1 to NAC Hospital and
accordingly, P.W.1 was admitted in the NAC Hospital. On such
F.I.R., Sunabeda P.S. Case No.118 dated 25.11.1996 was
registered under sections 354/294/325 of the I.P.C. and section
3(1)(xi) of the 1989 Act against the appellant.
P.W.6 Kartikeswar Samal, the Officer in-charge of
Sunabeda police station after registration of the F.I.R., took up
investigation of the case. During the course of investigation, he
examined the informant (P.W.2) at the police station, visited
NAC Government Hospital, Sunabeda along with P.W.2 and
examined the injured (P.W.1) and issued injury requisition to the
Medical Officer. He visited the spot on 26.11.1996, examined the
witnesses, prepared the spot map (Ext.4), arrested the appellant
and forwarded him to Court. He seized the caste certificate of
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P.W.1 as per seizure list Ext.5 and on 02.12.1996, he received
the injury report and on completion of investigation, charge
sheet was submitted under sections 354/294/323 of the I.P.C.
and section 3(1)(xi) of the 1989 Act against the appellant.
The learned trial Court, on 22.08.1997, framed
charges against the appellant under section 323 of the I.P.C. and
section 3(1)(xi) of the 1989 Act 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.
Witnesses & Exhibits:
During course of trial, in order to prove its case, the
prosecution has examined as many as six witnesses.
P.W.1 Chandrama Benia is the injured victim in this
case. She narrated about the incident and supported the
prosecution case.
P.W.2 Subhas Khilla is the brother of the victim
(P.W.1) and also the informant in the case. He supported the
prosecution case.
P.W.3 Dr. Satya Sundar Das was the Medical
Surgeon, HAL Hospital, Sunabeda. At the relevant time, he was
working as the Duty Doctor at HAL Hospital.
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P.W.4 Antarjami Sethi was ward-boy in Sunabeda
Hospital and also a post occurrence witness. He stated that at
the relevant time of occurrence, he was going to the hospital to
attend his duty and he saw P.W.1 lying on the ground and crying
due to pain near the boundary gate of the hospital and the
appellant was standing near P.W.1 keeping his motorcycle by his
side.
P.W.5 Dr. Bhaskar Chandra Samantarai was the
Medical Officer, Government Hospital, Sunabeda, who examined
the victim-injured (P.W.1) on police requisition and proved the
medical examination report vide Ext.3.
P.W.6 Kartikeswar Samal was posted as the Officer
in-charge of Sunabeda police station who worked as
Investigating Officer of this case and upon completion of the
investigation, he submitted charge sheet.
The prosecution exhibited five documents. Ext.1 is
the F.I.R., Ext.2 is the attested copy of caste certificate, Ext.3 is
the injury report, Ext.3/3 is the injury requisition, Ext.4 is the
spot map and Ext.5 is the seizure list in respect of caste
certificate.
The defence plea of the appellant is one of denial.
The appellant examined himself as D.W.1 and proved his caste
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certificate, which was issued by the Tahasildar vide Ext.A so also
the record of rights vide Ext.B.
Findings of the Trial Court:
The learned trial Court after assessing the oral as
well as documentary evidence on record came to hold that the
delay in lodging the F.I.R. is of no consequence so far as the
credibility of the story of the prosecution is concerned and basing
on the evidence of P.W.1 and P.W.2 so also the doctor (P.W.5), it
was held that the charge under section 323 of the I.P.C. has
been proved by the prosecution against the appellant and
accordingly, he was held guilty under the said provision.
Contentions of the Parties:
Mr. Bikash Karna, learned counsel appearing for the
appellant contended that the evidence of the victim (P.W.1) is
full of contradictions. He pointed out that though the victim
initially stated that she was abused and assaulted near the
school but at the later point of time, she contradicted her version
and stated that the occurrence took place in front of the HAL
Hospital. Further, it was argued that even if the police station is
just four kilometres away from the place of occurrence, which
has been mentioned to be 8I9 Zone U.P. School, HAL but
strangely, the F.I.R. was lodged on the next day i.e. on
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25.11.1996 at about 9.30 p.m., after almost 24 hours and delay
in lodging of the F.I.R. has not been explained by the
prosecution and in view of the delayed lodging of the F.I.R., the
chance of foisting a concocted case against the appellant on
account of previous dispute cannot be ruled out. Learned counsel
further submitted that the offence is minor in nature and
therefore, it is a fit case where benefit of doubt should be
extended in favour of the appellant.
Mr. Priyabrata Tripathy, learned Additional Standing
Counsel appearing for the State of Odisha, on the other hand,
supported the impugned judgment and submitted that the
evidence of the injured victim (P.W.1) gets corroboration from
the evidence of her brother (P.W.2) so also the two doctors i.e.
P.W.3 and P.W.5, who examined P.W.1 and thus, he stressed
that the contradictions, if any, are insignificant and therefore,
there is no scope for interference in this criminal appeal, which
deserves to be dismissed.
Analysis of Evidence:
Adverting to the contentions raised by the learned
counsel for the respective parties and coming to the evidence of
the star witness on behalf of the prosecution, who is none else
than P.W.1 Chandrama Benia, it appears that she stated in the
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first line of her evidence that she did not know the person
present in the dock. Her evidence was recorded on 09.02.1998
by the learned trial Court and the order sheet dated 09.02.1998
indicates that the appellant was present in the dock and
therefore, such type of statement made by P.W.1 that she did
not know the person present in the dock is a very damaging one
for the prosecution and it raises doubt about the involvement of
the appellant in the crime in question.
P.W.1 stated in her evidence that the occurrence
took place in front of the HAL Hospital at about 10.00 p.m. It has
been confronted to P.W.1 that she had stated before the I.O. in
her 161 Cr.P.C. statement that the incident took place near the
school. Though she denied to have made such statement before
the I.O., but it has been proved through P.W.6, the I.O. that
when he examined P.W.1 and P.W.2 and issued requisition
(Ext.3/3), he mentioned that the incident took place on the way
at 8I9 Zone U.P. School. In fact, in the F.I.R., it is mentioned that
the place of occurrence is near 8I9 Zone U.P. School, HAL. P.W.1
has stated in her evidence that the school situated almost half a
kilometre away from the hospital. Therefore, the place of
occurrence as stated earlier by the informant (P.W.2) so also by
the injured-victim (P.W.1) have been changed and the
prosecution has not offered any explanation as to why such a
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change regarding place of occurrence has been made by the
witnesses during trial. It may be inferred that the school would
be an isolated place at the night time and had a statement been
made that the incident took place near the school, there would
not have been any other witness to corroborate the evidence of
the injured because of the time factor and that may be the
reason for changing the place of occurrence from near the school
to the front of the hospital.
Though the injured (P.W.1) has stated that the
appellant pulled her by holding her saree and came to her front
on a motorcycle and obstructed her when she refused to sit, but
the previous statement of P.W.1 has been confronted to her and
it has been proved through the I.O. (P.W.6) that she has not
stated in her 161 Cr.P.C. statement that the appellant pulled her
by holding her saree and that the appellant came to her on a
motorcycle and obstructed her when she refused to sit. The
injured (P.W.1) has stated that after the occurrence, she was
first taken to HAL Hospital where the doctors expressed their
inability to treat her because of fracture and they advised her to
go to NAC Hospital. However, no doctor from HAL Hospital has
been examined nor any medical examination report was proved
by the prosecution that P.W.1 had sustained any fracture injury.
She has sustained a bruise on the left side back at posterior
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axillary line at the level of 8th and 9th ribs space and an abrasion
on left side of the left knee and both the injuries were opined to
be simple in nature by the doctor (P.W.5), who was the Medical
Officer of Government Hospital, Sunabeda.
P.W.2, who is the brother of P.W.1, has assigned a
different reason as to why P.W.1 was not admitted in the HAL
Hospital and took admission in NAC Hospital. He stated that
though the occurrence took place near the hospital gate, since
they expressed their desire to file a police case, the doctor of the
HAL Hospital told them to take admission in NAC Hospital and
accordingly, he took P.W.1 to her house since the hospital time
was over and then they went to the hospital at about 5.00 p.m.
where P.W.1 was admitted.
Delay in lodging F.I.R.:
Even though as per the formal F.I.R., the place of
occurrence is near 8I9 Zone U.P. School, HAL and it situates at a
distance of four kilometres away from Sunabeda police station
and the occurrence stated to have taken place on 24.11.1996 at
10.00 p.m. but no report was lodged on 24.11.1996 and it was
lodged on 25.11.1996 at about 9.30 p.m., which is almost
twenty four hours after the time of occurrence.
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In the case of Thulia Kali -Vrs.- State of Tamil
Nadu reported in A.I.R. 1973 S.C. 501, it was held that F.I.R
in a criminal case is an extremely vital and valuable piece of
evidence for the purpose of corroborating the oral evidence
adduced at the trial. The importance of the report can hardly be
overestimated from the standpoint of the accused. The object of
insisting upon prompt lodging of the report to the police in
respect of commission of an offence is to obtain early
information regarding the circumstances in which the crime was
committed, the names of the actual culprits and the part played
by them as well as the names of eye witnesses present at the
scene of occurrence. Delay in lodging the first information report
quite often results in embellishment which is a creature of
afterthought. On account of delay, the report not only gets bereft
of the advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated account or
concocted story as a result of deliberation and consultation. It is,
therefore, essential that the delay in lodging of the first
information report should be satisfactorily explained.
However, this Court must clarify that the entire
evidence of the prosecution should not be discarded merely
because there is an unexplained delay in lodging of F.I.R. but at
the same time, the Court ought to assess all the available
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evidence on record scrupulously to see if there is a continuous
chain which inspires the confidence of Court in the prosecution
story. If there is an unbreakable chain implicating the accused
for his overt act and indicating his guilt, then delay of a few
hours in informing the police may not be fatal. The above
position of law is fairly settled by a plethora of decisions of the
Hon9ble Supreme Court. In the case of Rupchand Chindu
Kathewar -Vrs.- The State of Maharashtra reported in
(2009) 17 Supreme Court Cases 37, the Apex Court held that
a mere delay in lodging the F.I.R. would not be fatal to the
prosecution story, but there is a proviso to this broad principle,
that the evidence read as a whole must inspire confidence.
In the case in hand, I am of the humble view that in
view of the nature of injuries sustained by the injured and
distance of place of occurrence from the police station, the
prosecution has not satisfactorily explained the delay of almost
twenty four hours in lodging the first information report and
therefore, the possibility of concoction of the prosecution case
cannot be ruled out.
Discrepancies in Evidence:
It is no more a res integra that while appreciating the
evidence of a witness, minor discrepancies on trivial matters,
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which do not affect the core of the case of the prosecution, must
not prompt the Court to reject the evidence in its entirety. The
irrelevant details which do not in any way affect the credibility of
a witness, cannot be considered as omissions or contradictions.
Nevertheless, the Court must be alive to scrutinise major
contradictions or discrepancies in the deposition of witnesses
which cannot be ignored when they are examined in the correct
perspective. If due to a discrepancy, the chain of links
connecting the accused with crime seems incomplete, then such
contradiction can be proved to be fatal for the prosecution. This
facet of law has been reiterated by the Hon9ble Supreme Court in
the case of Raj Kumar Singh -Vrs.- State of Rajasthan
reported in (2013) 5 Supreme Court Cases 722.
When there is a contradiction regarding the place of
occurrence and there are contradictions in the evidence of the
victim (P.W.1) with reference to her previous statement, which
even though minor in nature but has its significance in a case of
minor offence like one under section 323 of the I.P.C. and when
the delay in lodging of the F.I.R. has not been satisfactorily
explained by the prosecution, I am of the humble view that the
conviction of the appellant under section 323 of the Indian Penal
Code is not sustainable in the eye of law and accordingly, the
same is hereby set aside.
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Accordingly, the Criminal Appeal is allowed. The
appellant is acquitted of the charge. The appellant, who is on bail
by virtue of the order of this Court, is discharged from liability of
his bail bond. The personal bond and the surety bond hereby
stand cancelled.
The lower Court records with a copy of this
judgment be sent down to the learned trial Court forthwith for
information.
Before parting with the case, I would like to put on
record my appreciation to Mr. Bikash Karna, learned counsel for
the appellant for rendering his valuable help and assistance
towards arriving at the decision above mentioned.
..........................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 10th August 2023/RKMishra
Signature Not Verified
Digitally Signed
Signed by: RABINDRA KUMAR MISHRA
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2023 16:47:51
