Radheshyam Sahu vs State Of Odisha
2023 Latest Caselaw 9191 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                      CRA No.379 of 1993

   (In the matter of an appeal under Section 374(2) of
   the Code of Criminal Procedure).

  Radheshyam Sahu                           .... Appellant

                                 -versus-
  State of Odisha                           ...   Respondent

  For Appellant              :    Mr. H.S. Mishra, Advocate
  For Respondent             :    Mr. S.S.Pradhan, AGA
                                  Mr. T.K. Nayak, Advocate
                                  for Informant


       CORAM:
                      JUSTICE G. SATAPATHY

               DATE OF JUDGMENT: 14.08.2023

G. Satapathy, J.

The appellant before this Court

challenges the correctness of Judgment of conviction

and order of sentence passed on 26th November,

1993 by the learned Assistant Sessions Judge,

Rourkela in Sessions Trial No. 29/6 of 1993

convicting him for offence punishable U/S 307 of IPC

and sentencing him to undergo rigorous

imprisonment (R.I.) for a period of nine years and to

pay a fine of Rs. 500/- in default whereof, to undergo

R.I. for a further period of six months, while

acquitting him of the charge for offence U/S 294 of

IPC and consequently, giving the benefit of set off

U/S 428 of Cr.P.C. as against the substantive

sentence awarded to him.

2. The prosecution case in short was that on

29.06.1993 at about 8 P.M. in the night, the convict-

appellant came to the residence of informant P.W.3

Bijay Kumar Das and owing to previous grudge, on

account of P.W.3 being cited as a witness by Police

with regard to the case relating to possession of

Jwakim Sahoo and as charge sheet witness in another

case pending against Ram Prasad Sahoo and his

brothers, called P.W.3 for a discussion and when

P.W.3 came outside of his house, the appellant

suddenly became furious and caught hold the neck of

P.W.3 and tried to stab him with a Bhujali on his

belly, but due to good luck, P.W.3 could manage to

save himself, however, appellant again rushed

towards him and attempted to dealt a Bhujali blow

aiming to the neck of P.W.3, but P.W.3 caught hold

the hand of the appellant as a result, the appellant

fell down as he was in a inebriated condition. The

occurrence was witnessed by Ajay Kumar Biswal and

Santosh Kumar Pati who came to save P.W.3 and the

appellant fled away from the spot with Bhujali by

abusing P.W.3 uttering obscene words by saying

"MAAGHIA OKILA AJI BANCHIGALU AUTHARE

DEKHIBI".

The criminal law was ultimately set into

motion by the F.I.R. (Ext.1) of P.W.3 before the

Officer-in-charge of Jhirpani Outpost on the same day

at about 9.30 P.M. and the F.I.R. was registered as

Sector-19 P.S. Case No. 95 of 1992 corresponding to

G.R. Case No. 1292/1992 paving the way for

investigation into the matter. Accordingly, P.W.6

investigated the matter and submitted charge sheet

against the appellant resulting in trial in the present

case.

3. In the course of trial, the appellant stood

charged for offence U/Ss. 294/307 of IPC and in

substantiation its case, the prosecution had examined

altogether six witnesses and relied upon the

documents under Exts. 1 to 4 and material object

M.O.I(Bhujali) as against no evidence whatsoever by

the defence.

4. The plea of the appellant in the course of trial

was one of complete denial and false implication. Of

the witnesses examined by prosecution P.W.s. 1, 2,

4, and 5 did not support the prosecution case,

whereas the informant- P.W.3 only tendered evidence

against the appellant, but the learned Trial Court by

mainly relying upon the evidence of P.W.3 and P.W.6,

the Investigating Officer had found the appellant

guilty of the charge for offence U/S 307 of IPC while

acquitting him of the charge U/S 294 of IPC and

sentenced the appellant to the punishment indicated

supra. Being aggrieved with such judgment of

conviction and order of sentence, the convict

preferred this appeal.

5. In the course of hearing of the appeal, the

appellant being represented by his counsel Mr. H.S.

Mishra has filed I.A. No. 02 of 2023 to implead P.W.3

as Respondent No.2 and I.A. No. 01 of 2023 to quash

the impugned judgment of conviction and order of

sentence, mainly on the ground of amicable

settlement between the parties. Similarly, the

informant-cum-P.W.3 has filed another I.A. No. 03 of

2023 after entering appearance through the learned

counsel Mr. T.K. Nayak to quash the impugned

judgment of conviction and order of sentence of the

appellant on the ground of amicable settlement

between the parties.

6. This Court, accordingly, heard Mr. H.S.

Mishra, learned counsel for the appellant, Mr. T.K.

Nayak, learned counsel for the informant and Mr. S.S.

Pradhan, learned A.G.A. in the appeal.

7. Admittedly, the appellant has challenged his

conviction for offence U/s. 307 of IPC, which is

although non-compoundable, but the conviction there

under can be quashed, if the appellant otherwise

establishes the same to be an abuse of process of

Court or to give effect to any order under Cr.P.C. or

to secure the ends of justice. Nevertheless, the

conviction U/S. 307 of IPC cannot be quashed merely

on the ground of amicable settlement/compromise

between the parties. Keeping in view the above

position of law, let us examine whether the conviction

of appellant for offence U/S. 307 of IPC can stand the

scrutiny of evidence or the appellant is liable for any

other offence, which can be fittingly quashed on the

ground of compromise, of course, such prayer has

been made though learned counsel appearing for the

informant without any compromise petition of the

parties.

8. Undisputedly, the learned trial Court had

found the accused guilty for offence U/S 307 of the

IPC by mainly relying upon the sole witness of the

victim since none of the independent witnesses had

supported the prosecution case, but admittedly there

was no injury on the person of the victim-cum-P.W.3

whose evidence transpires that the appellant had

tried to stab him on his belly by means of Bhujali

(M.O.I) and again attempted to stab him by M.O.I

aiming at his neck, but P.W.3 could manage to

caught hold the hand of the appellant with which he

was holding M.O.I and the appellant fell down. The

evidence of P.W.3 further discloses that his neighbour

P.W.1 Santosh Kumar Pati and P.W.2- Ajay Kumar

Biswal rushed to the spot, but the appellant fled away

from the spot with the Bhujali. It is not in dispute

that P.W.s. 1 and 2 had not whispered anything

about the occurrence nor had they stated anything

against the appellant with regard to the occurrence.

Similarly, P.Ws. 4 and 5 being seizure witness had

categorically stated that nothing was seized in their

presence by the Police Officer.

9. Above being the substratum of evidence

available on record, whether it would be safe to

convict the appellant for offence U/S 307 of IPC with

this much of scanty evidence. The offence of attempt

to murder as contemplated U/S 307 of IPC is

referable to the intention or knowledge and the

circumstance by which if the act of the accused could

have caused the death of the victim, the accused

would have been guilty of the murder. It is,

therefore, very clear that even though the act

committed by the accused had not caused the death

of a person, but had the accused being successful in

accomplishing the act, it would have caused death of

the victim is the sole test to bring home the guilt of

the accused for the charge of attempt to murder. On

close scrutiny of evidence of P.W.3 on the anvil of

ingredients of offence U/S 307 of IPC, there is

absolutely no evidence against the convict for having

requisite intention to kill P.W.3 nor had he the

knowledge that by his act, he would have caused the

death of P.W.3, especially when it appears from the

evidence of P.W.3 that the appellant ran away from

the spot with the Bhujali (M.O.I), when P.Ws. 1 and 2

came rushing to the spot, which appears to be

contrary to the evidence of P.Ws. 1 and 2 who had

not spoken a single word regarding the occurrence or

this fact. Had there being any intention on the part of

the appellant to cause death of P.W.3, he could not

have ran away from the spot without making further

attempt to inflict injuries to P.W.3. There appears

from the evidence of P.W.3 that there was also tussle

between P.W.3 and the appellant, but P.W.3 had

strangely not sustained any injury or scratches on his

person nor was he sent to the hospital by the I.O. for

detection of any injury on his person. P.W.6 had also

admitted in his cross-examination that he did not find

any mark of violence at the spot. The evidence of

P.W.3 further transpired that he was targeted by the

appellant because he had been cited as a witness in a

case between the appellant and Jwakim Sahoo and he

was also a witness in a G.R. Case in which the

appellant and his brothers were accused persons.

These evidence might have bearing in the matter, but

P.W.3 had neither sustained any kind of injury by the

attempt of the appellant nor had the seizure witness

supported the seizure of the weapon of offence

(M.O.I). Further, P.W.6 had not been able to prove

the manner and circumstance of seizure of M.O. I

which was also not identified by P.W.3 in the course

of his examination in the Court following due

procedure of recording of evidence. One of the

seizure witnesses P.W.4 was the brother-in-law of

P.W.3, but he had not supported the seizure of M.O.I

and in his cross-examination, he had stated that

P.W.3 and accused (appellant) were quarrelling with

each other and he had gone to the Police Station at

that time and reported orally about the occurrence to

the O.I.C. which he reduced into writing and he had

signed on that report and thereafter Police came to

the spot and arrested the appellant. These were the

evidence which persuades this Court not to accept

the evidence of P.W.3 without any independent

corroboration since the evidence of P.W.3 appears to

be not free from biases and the evidence of P.W.3 in

the circumstance of other evidence cannot be

considered as impeccable evidence to convict the

appellant in view of the fact that neither seizure

witness had supported the seizure of M.O.I nor had

P.W.3 sustained any kind of injury on his person, but

there appears from evidence on record about some

rancor and hostility existing between P.W.3 and

appellant at that point of time. This was how the

evidence of P.W.3 not trustworthy or believable or

cannot be considered as a sterling evidence.

10. Learned trial Court of course had relied

upon the sole evidence of P.W.3 to convict the

appellant by taking recourse to Section 134 of the

Indian Evidence Act which provides that no particular

number of witnesses shall in any case be required for

proof of any fact. This Court is, however, conscious of

the fact that law requires quality of evidence nor the

quantity and if the evidence is unblemished and

beyond all possible criticism with satisfaction of the

Court that the witness was really speaking truth and

his evidence was of such quality, the Court could rely

upon the sole testimony of witness to maintain a

conviction against the accused, but when the

evidence is not sterling quality nor free from any

blemishes, it would not be safe to base conviction on

such doubtful evidence. This Court has already found

the evidence of P.W.3 was of not that quality which

qualifies the test to be relied on U/S. 134 of Indian

Evidence Act.

11. A cumulative reappraisal of evidence on

record, this Court neither finds any quality evidence

nor does consider the evidence of sole witness P.W.3

of any sterling quality to base conviction against the

appellant for any offence. It, therefore, appears to

the Court that the prosecution was not successful in

establishing its case against the appellant beyond all

reasonable doubt in any manner.Hence, the appellant

is, therefore, entitled to a clean acquittal, but the

learned trial Court had misapplied and failed to

appreciate the evidence on record against the

appellant in the impugned judgment to hold him

guilty of the offence. Ergo, the judgment of conviction

and order of sentence passed on 26th November,

1993 by the learned Assistant Sessions Judge,

Rourkela in Sessions Trial No. 29/6 of 1993 for

convicting and sentencing the appellant for offence

punishable U/S 307 of IPC are hereby set aside and

the appellant is acquitted of the charges.

12. In the result, the appeal stands allowed on

contest, but in the circumstance there is no order as

to costs. The bail bond(s) of the appellant stand(s)

discharged.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 14th of August, 2023/Kishore

Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 16-Aug-2023 10:26:48