Kasti Behera And Others vs State Of Odisha
2023 Latest Caselaw 2367 Ori

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                    CRA NO.144 OF 1993

              (From the judgment and order dated 26th April, 1993 passed
              by learned Addl. Sessions Judge, Titilagarh in S.C. No.91/33
              of 1991)

                    Kasti Behera and others
                                                              ...        Appellants

                                                -versus-

                    State of Odisha                            ...        Respondent



                Advocates appeared in the case through hybrid mode:

                       For Appellants : Mr.S. Panda
                                        Advocate

                                                            -versus-

                      For Respondent: Mr.S.N.Das,
                                      Addl. Standing Counsel

                ---------------------------------------------------------------------------
                       CORAM:

                                      JUSTICE SASHIKANTA MISHRA

                                                    JUDGMENT

23.03.2023.

Sashikanta Mishra,J. The Appellants question the correctness of the

judgment dated 26th April, 1993 passed by learned

Addl. Sessions Judge, Titilagarh In S.C. No.91/33 of

1991 whereby they were convicted for the offence

under Sections 147/341 of I.P.C. and sentenced to

undergo one year R.I. for the offence under Section 147

of I.P.C. and one month R.I. for the offence under

Section 341 of I.P.C. with both the sentences to run

concurrently. Be it noted that the Appellant Nos.1 and

4 having expired, the appeal against them has abated.

2. The prosecution case, briefly stated, is as follows;

On 11th February, 1993, one Bajranglal Sharma

lodged F.I.R. before the Kantabanjhi P.S. alleging that

while he, one Rabi Mohapatra, Salim Khan and others

had been to the house of Kapil Singh Thakur to attend

a marriage feast on 26/27.3.1991 and were returning

from such feast at about 12.30 A.M. on a Bullet Motor

Cycle, they were obstructed by all the accused-

Appellants along with 20-30 persons and severely

assaulted. The informant and his friends attempted to

escape but they were chased and assaulted by deadly

weapons. As a result, the injured Rabi sustained

injury on his left eye while Salim sustained bleeding

injuries on his head and right hand. Basing on such

report, Kantabanjhi P.S. Case No.30/1991 was

registered under Sections 147/148/341/323/

324 /307/149 of I.P.C. followed by investigation. Upon

completion of investigation charge sheet was submitted

against the accused persons under the aforementioned

sections.

3. The defence took the plea of denial.

4. In order to prove its case, the prosecution examined

20 witnesses and proved 17 documents. Out of the

witnesses, P.W.16 is the informant, P.Ws.6 and 7 are

the injured victims, Rabindra Kumar Mohapatra and

Salim Khan respectively and P.Ws.1,2,3,13,14 and 19

are doctors who examined the injured persons at

different times, and P.W.20 is the I.O. The defence, on

the other hand, examined three witnesses and proved

one document. No material object was proved.

5. After appreciating the evidence on record, the trial

Court held the offence under Section 307/149 of I.P.C.

as not established but held the other offences to be

clearly proved. However, in so far as the present

Appellants are concerned, the trial Court held them

guilty under Sections 147/341 of I.P.C. and sentenced

them as already stated herein before.

6. Heard Mr. S. Panda, learned counsel for the

Appellants and Mr. S.N.Das, learned Addl. Standing

Counsel for the State.

7. Mr. S. Panda has assailed the impugned

judgment of conviction on the ground that the defence

plea of false implication because of prior enmity was

not considered at all by the trial Court even though the

same was available to be seen from the evidence on

record. Mr. Panda further contends that it is borne out

from the evidence on record that the injured persons

were heavily drunk at the relevant time and fell down

from the Motor Cycle and sustained injuries. The Trial

Court did not take into account this aspect also even

though the same is established from the evidence on

record. Mr. Panda finally argues that the offence

under Section 147 of I.P.C. is not made out at all

inasmuch there is no allegation of any assault being

made by the present Appellants.

8. Mr. S.N.Das, learned State counsel, on the other

hand, has contended that there is clear evidence of

obstruction by the Appellants including the other

accused persons due to which the Motor Cycle on

which the informant and the injured were riding had to

be stopped. Further, they were assaulted after the

motor cycle had stopped. Mr. Das further argues that

since there is clear proof of the Appellants being

present at the spot along with the co-accused persons

being part of an unlawful assembly, they are

vicariously liable for any act of assault committed by

any member of such assembly notwithstanding the fact

that there is no specific allegation of assault against

them.

9. As regards the plea of false implication, it is seen

that in the statement of the accused persons recorded

under Section 313 of Cr.P.C., all the accused persons,

except Kuber Prasayat (deceased) stated that they were

falsely implicated without saying anything more. In so

far as Kuber Pasayat is concerned, apart from saying

that he was falsely implicated, he also stated that Rabi

and Salim (injured persons) were drunk at the relevant

time which caused the motor cycle accident and that

they had not assaulted them. This Court has perused

the depositions of all the witnesses including that of

the injured witnesses namely, Rabindra Kumar

Mohapatra (P.W.6) and Salim Khan(P.W.7). In so far

as P.W.6 is concerned, nothing was asked to him in

cross-examination as regards false implication.

Similarly in the cross examination of P.W.7 it was only

suggested to him that P.W.6 had falsely foisted a case

against the accused persons on account of previous

animosity with him and that one or two criminal cases

are now pending against him (P.W.6) and P.W.7 is the

co-accused with him in those cases. Nothing specific

has been stated as regards the reason for such

animosity, if at all between the parties. It is the settled

position of law that the defence plea has to be

crystallized specifically through suggestions given

during cross-examination of the prosecution witnesses

for the same to be acceptable. It has been argued by

Mr. Panda, learned counsel for the Appellants, that

there is admission by one of the witnesses, P.W.15 that

P.Ws.6 and 7 were in drunken state when they

attended the feast in his house. The above plea is not

backed by any other ocular or medical evidence. Both

P.Ws.6 and 7 were medically examined by Dr.

Surendra Kumar Meher (P.W.13). He has described the

injuries found on the bodies of the injured persons.

However, he has not mentioned anything regarding any

kind of intoxication of P.W.6 or P.W.7. Significantly,

same was not even suggested to the Doctor. Therefore,

it is difficult to accept the plea of false implication due

to prior enmity as also the plea that the accident took

place as P.Ws.6 and 7 were heavily drunk at the

relevant time.

10. It is next argued by Mr. Panda that the offence

under Section 147 is not attracted inasmuch as

neither P.W.6 nor P.W.7 has attributed anything to the

present appellants as far as the assault is concerned.

In this regard, it would be apt to refer to the provision

of Section 147 of I.P.C., which reads as under;

"147. Punishment for rioting.--Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

11. Thus, to bring home the charge under section

147 of I.P.C. the prosecution is required to prove that

the accused persons had formed an unlawful assembly

with a common object of committing any of the acts

mentioned under Section 141 of I.P.C. It is clearly

borne out from the evidence on record that two other

persons were present with the present Appellants and

therefore, it is clear that there were at least 5 persons.

It is also stated that there were many other persons

yet, there is no acceptable or specific evidence

regarding presence of any such person at the spot.

However, it is also borne out from the evidence on

record that the Appellants or at least some of them

were armed with lathis and sharp cutting weapons

with which they assaulted P.Ws.6 and 7 causing

grievous injuries. Of course in so far as the present

Appellants are concerned, as already stated, there is

no allegation of assault as such against them but in

view of the evidence showing their presence at the spot

being part of the unlawful assembly, they would be

held vicariously liable for any act committed by any

other member of the said assembly. It must be kept in

mind that one of the co-accused persons namely,

Kuber Pasayat (deceased-appellant) was convicted for

the offence under Sections 341/324/147 of I.P.C.

There is an allegation of accused-Appellant No.5

(Jeet Singh) having assaulted by means of a 'Gupti' but

the same was disbelieved by the Court below.

Nevertheless, there is clear evidence of assault by the

accused-Kuber. Therefore, the present Appellants are

also liable being part of the unlawful assembly.

12. As regards the offence under Section 341 of I.P.C.,

it has been argued that in the evidence of P.W.6 and 7

there is nothing to show that they were physically

obstructed by the Appellants and on the contrary,

there is evidence that they were chased by the

Appellants from the spot, which does not establish the

offence under Section 341 of I.P.C.

13. Reading of the evidence of P.Ws.6 and 7 reveals

that while he and P.Ws.4 and 7 were going on a Bullet

motor Cycle after attending the marriage feast, they

were stopped by the accused persons along with other

persons near the Chowk. Thereafter, accused-Kuber

Pasayat abused him in vulgar language for which he

stopped his motor cycle and thereafter there was

assault. P.W.7 has also stated in similar lines. Both of

them categorically stated that the accused persons

obstructed their passage. Nothing has been elicited

from them in cross-examination to disbelieve their

sworn testimonies. Since there is no evidence to show

that the injured persons had fallen down from the

motor cycle due to any reason including the reason of

intoxication, the only inference there is available to be

drawn is that they were obstructed due to which they

stopped their motor cycle whereupon they were

assaulted, as a result of which, they fell down on the

road. The contention raised by the learned counsel for

the Appellants is therefore, not acceptable.

14. Reading of the impugned judgment reveals that

the trial Court has properly appreciated the evidence

on record minutely. In fact, the trial Court has

segregated the allegation of assault by holding the

accused-Kuber Pasayat guilty on such score only.

After perusing the impugned judgment, this Court

finds no infirmity or error in the reasoning adopted by

the trial Court to hold the accused-Appellants guilty of

the offences under Sections 341/147 of I.P.C.

15. It is alternatively contended by Mr. Panda that

the offence took place way back in the year 1991,

which is more than 30 years back. The accused-

Appellants are now aged nearly 60 years. In fact, the

Appellant No.5 (Jeet Singh) is presently aged more

than 70 years. All of them have undergone

imprisonment for some time during trial. He therefore,

submits that it would be too harsh to send them to

prison at this belated stage.

In response, Mr. S.N.Das has contended that

the offence being clearly proved and the minimum

punishment having been imposed by the trial Court,

no further leniency should be shown to the accused-

Appellants.

16. This Court finds considerable force in the

submission of Mr. Panda. The occurrence took place

more than 30 years back. The Appellants are now

elderly persons with one of them being aged more than

70 years. The prosecution has not shown any criminal

activity on their part after the occurrence. Moreover,

they have spent some time in prison during trial. This

Court is therefore, of the considered view that ends of

justice would be served if the sentence is modified to

the period already undergone instead of directing the

Appellants to serve the remaining part of sentence at

this distance of time.

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

order of conviction is maintained. The sentence passed

by the trial Court is however, modified to the period of

custody already undergone by the Appellants.

.................................. (Sashikanta Mishra) Judge

Ashok Kumar Behera