Mahendra Bag vs State Of Orissa
2023 Latest Caselaw 11815 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                     CRA NO.65 of 1995

   (In the matter of application under Section 374(2) of
   the Criminal Procedure Code, 1973.).

   Mahendra Bag                            ....    Appellant
                           -versus-

   State of Orissa                         ....   Respondent


   For Appellant       : Mr. A. Mohanty, Amicus Curiae


   For Respondent : Mr. S.S. Pradhan, AGA

       CORAM:
                   JUSTICE G. SATAPATHY

                   DATE OF JUDGMENT:29.09.2023

G. Satapathy, J.

1. This criminal appeal impugns the judgment

passed on 30.01.1995 by the learned Sessions Judge,

Sambalpur in S.T. Case No.267 of 1994 convicting

the appellant for offence under Section 307 of IPC

and sentencing him to undergo Rigorous

Imprisonment (RI) for a period of five years.

2. An overview of facts involved in this case

were on 12.10.1994 at about 9.45 PM, PW2 while

returning from a cloth shop after making some

purchase had a collision with the appellant at

Baidyanath Chowk and on this, when PW2 asked the

appellant to walk properly on the road, the appellant

being annoyed, went to a nearby place and brought

out a sword and chased PW2 to assault, but

PW2(injured) accordingly ran towards Kansaripada

with appellant following behind him by holding a

sword, however, the appellant could be successful in

reaching near PW2 in front of the residence of

Headmaster, Town High School and dealt successive

blows on the head and back of PW2 by means of the

sword resulting in bleeding injuries on his persons.

This incident was witnessed by PW1-Milan Maharana,

PW4-Ashok Nepak and PW-5-Jagadish Mahapatra and

out of whom, PW1 had unsuccessfully tried to rescue

PW2 ending only with receiving injury on his right

index finger. Immediate after the occurrence, PWs.1

and 2 went to the police station and PW2 orally

reported the incident and, thereafter, both of them

receive treatment at a hospital.

3. On the same date i.e. on 12.10.1994 at

about 10.10 PM, PW2, however, lodged FIR against

the appellant, which paved the way for registration of

Sambalpur Town P.S. Case No.354 of 1994, which

culminated in submission of charge-sheet against the

appellant for offence under Sections 307/324 of IPC

read with Section 27 of Arms Act, but the learned

trial Court proceeded against the appellant in the trial

by framing charge under Section 307/324 of IPC

without assigning any reason for not proceeding

against the appellant for offence under Section 27 of

Arms Act. This was how the trial commenced in the

case.

4. In support of its case, the prosecution

examined altogether 6 witnesses vide PWs.1 to 6 and

relied upon five documents under Ext.1 to 5 as

against no evidence whatsoever by the defence in

support of its plea of false implication and innocent of

the offence.

5. After appreciating the evidence on record

upon hearing the parties, the learned the learned trial

Court by the impugned judgment, convicted the

appellant for commission of offence U/S.307 of IPC

and sentenced him to the punishment indicated

(supra). The learned trial Court, however, considered

the charge under Section 324 of IPC against the

appellant as an alternative charge and accordingly,

appeared to have ignored to consider such charge

against the appellant after his conviction for higher

offence U/S.307 of IPC. It appears from the

impugned judgment that the learned trial Court had

convicted the appellant by mainly relying upon the

evidence of eye witnesses PWs.1, 2 and 5.

6. In this case, PW2 being main injured

witness-cum-informant, his evidence requires to be

scrutinized first in the sequence. The evidence of PW2

transpired that on 12.10.1994 at about 9.30 PM, he

had a collision with the appellant at Baidyanath

Crossing and, accordingly, cautioned him to walk

properly on the road, but the appellant brought out a

sword and chased to assault him and the appellant

accordingly, dealt sword blows on his head and back,

as a result he sustained bleeding injuries on his

person. It was his further evidence that when PW1

intervened to rescue him, one of the sword blows

made by the appellant struck on the tip of the right

index finger of PW1 causing bleeding injury to him. In

addition to his oral evidence, PW2 had also proved

the FIR under Ext.1. Since the evidence of PW2

disclosed PW1 to be an injured, it is considered

apposite to examine the evidence of PW1, whose

testimony transpired that on 12.10.1994 at about

9.50 PM, the appellant while chasing PW2 with a

sword became successful in striking on PW2 by the

said sword in front of the house of Headmaster, Town

High School and he had also sustained injury on his

right index finger while intervening in the matter.

PW1 had also clearly stated in his evidence that the

appellant had dealt strokes by means of a sword on

the person of PW2, who had sustained injuries on his

head and neck by such assault of the appellant.

7. Mr. A. Mohanty, learned Amicus Curiae has,

however, termed PWs.1, 2 and 5 as interested

witnesses and he has accordingly submitted not to

rely upon the evidence of aforesaid highly interested

witnesses. It is also submitted by Mr. Mohanty that

the injured in this case was an anti social element,

which was clearly reflected in the judgment and the

prosecution having not been able to unearth the

motive behind the crime, it would not be proper to

confirm the conviction of the appellant. Mr. Mohanty,

however, has acknowledged the evidence of PWs.1, 2

and 5 led by the prosecution against the appellant,

but he has definitely tried to make out a case in

favour of the appellant by terming these witnesses as

interested witnesses and thereby, he has urged to

disbelieve their evidence.

8. On the other hand, Mr. S.S. Pradhan,

learned AGA has, however, strongly urged this Court

to rely upon the evidence of these witnesses by

terming the evidence of eye witnesses to be

independent evidence unconnected with the appellant

and the informant-injured. Learned AGA accordingly

has drawn the attention of the Court to the evidence

of another injured independent witness as well that of

PW5 and has prayed to confirm the conviction.

9. The plea of interestedness of witnesses was

taken by the defence in the learned trial Court, which

on close scrutiny, had rejected such plea by assigning

the following reason "as admitted by the said PWs, all

of them are not only close friends, but associates of

one another and have been entangled in commission

of many anti social offences, but what is significant is

that their evidences get good amount of

corroboration from the evidence of PW3 (Doctor) and

PW6 (IO)".

10. The testimony of PW3 disclosed that PW1

had received one cut injury of size ½" X ¼" over his

right index finger, which was opined by PW3 to be

simple in nature and would have been caused by a

sharp cutting weapon. PW3 had also stated in his

evidence that he had examined PW2 on police

requisition and found one cut injury of size 6'' in

length and 2'' in breadth over the left scapula (back)

and one cut injury of size 3" X ½" X ½" over the back

of the vertex (head) and the aforesaid injuries were

opined by PW3 to be simple in nature and might have

been caused by a sharp cutting weapon. PW3 had

also stated in his evidence that these cut injuries

were possible by means of a sword (Talwar).

11. On coming back to the testimony of PW5,

who was another eye witness to the occurrence, it

appears that PW5 had not only reiterated the assault

made by the appellant on the injured-informant PW2

as well as the other injured PW1 by means of a

sword, but also had given a detailed picturesque of

the transaction as to how the appellant attacked and

inflicted injuries to PWs.1 and 2 and the reason for

such attack. It can neither be denied nor disputed

that the defence had not been successful in

demolishing the evidence of all these three witnesses

i.e. the evidence of PWs.1, 2 and 5 and their evidence

not only corroborated to each other in material

particulars, but also vividly described the mode and

manner of assault by appellant on PWs.1 and 2. It

cannot be disputed that the evidence of PW2 was

squarely corroborated by Ext.1(FIR) so also by Ext.3.

It, however, appears that Mr. A. Mohanty, learned

Amicus Curiae has assailed the evidence of PWs.1, 2

and 5 on the ground of interested witnesses, but such

contention appears to be the imagination of the

appellant and in no circumstance, the evidence of

PWs.1 and 5 can be rejected en-bloc merely because

they were friends of PW2, but their evidence,

however, was strongly corroborated by the medical

evidence of PW3. The learned Amicus Curiae has also

argued that the sword was never seized by the IO,

rather one barber knife was seized by him, but such

submission merits no consideration in view of the

overwhelming oral evidence of PWs.1, 2 and 5 which

was supported by the medical evidence of PW3.

12. In the aforesaid circumstance and on

meticulous appreciation of evidence of prosecution

witnesses together with failure of the defence to

impeach the veracity of the evidence available on

record and there being ample evidence against the

appellant, this Court is of the considered view that

the appellant had attacked PWs.1 and 2 and caused

injuries to them by use of sharp cutting weapon on

the relevant date and time of occurrence, which was

the main substratum of evidence against the

appellant and the same was squarely established by

the prosecution against the appellant beyond all

reasonable doubt. At this juncture, this Court,

however, noted a fact that the learned trial Court had

ignored the charge sought to be established against

the appellant for offence under Section 324 of IPC by

considering it to be an alternative in character, but

this Court considers it proper to remind that the

appellant was not only allegedly charged for

assaulting the informant-injured(PW2), but also

injuring PW1, however, the learned trial Court while

framing charge had forgotten to frame charge against

the accused for injuring PW1, who had made valiant

attempt to rescue PW2 in the course of occurrence,

but such lapses would not have any effect on the

case of prosecution which was already established

against the appellant by way of unimpeachable

evidence for attacking and assaulting the injured-

informant and, thereby, inflicting injuries to PW2.

13. This Court, however, considers it apposite to

find out as to whether the act of the appellant

established his guilt either for offence under Section

307 of IPC or for any other offences and in the

pursuit of such determination, it appears to this Court

that neither there was any medical evidence available

on record to indicate that the injuries sustained by

PW2 on the assault of appellant were sufficient in

ordinary course of matter to cause death of a person

nor was there any evidence on record to disclose any

grievous injuries to PW2. There is no cavil of doubt,

even without injuring a person, an accused can be

made liable for offence under Section 307 of IPC

provided there must be evidence against him beyond

reasonable doubt establishing his intention to commit

the murder of the injured. Hence, the intention plays

an important role in prosecution against the accused

for commission of offence under Section 307 of IPC.

14. In common parlance, nature of injuries

caused by the offender more than often depict/

reveal the intention of such offender, but they are by

themselves not decisive factor to determine the

mensrea in terms of Section 307 of IPC, however,

bodily injuries capable of causing death in ordinary

course is one of the relevant consideration for

attracting the charge under Section 307 of IPC, which

may of course be attracted even in absence of

injuries, if there is unimpeachable evidence that the

offender does such act with intention or knowledge

and under such circumstances, by which he would

have killed the victim, who had survived because the

act of the offender failed or missed the target.

Reverting back to the evidence on record keeping in

view the aforesaid legal principle to find out the

requisite intention/knowledge of the appellant for the

offence U/S. 307 of IPC, it appears that the learned

trial Court in its judgment had explained that

inflicting successive blows by means of a sword

projects the intention of the appellant to commit

murder of PW2 in an affirmative manner, but the

ocular testimony of PW2 disclosed that the appellant

had dealt blows by means of a sword on his head and

back and he had sustained bleeding injuries due to

such blows of the appellant on his person. On the

other hand, it was the evidence of PW1 to the extent

that the appellant dealt strokes by means of the

sword on the person of the injured Lingaraj, who

sustained injuries on his head and back. PW5,

however, stated in his evidence that the appellant

dealt a sword blow on the head of the injured

Lingaraj and second blow with the same sword on the

back of the Lingaraj. None of the aforesaid three

witnesses had ever whispered about the intention of

the appellant to commit murder of the injured which

assumes great significance in absence of medical

evidence as to the sufficiency of the injuries in

ordinary course of nature to cause death of PW2. Had

there been any intention on the part of the appellant

to commit murder of the injured, he could have given

blows to the injured repeatedly by means of the

sword, which he was wielding at that time when the

injured fell down on the ground and he would not

have escaped from the spot. Besides, the injuries

found on the injured as per medical evidence were

simple in nature, but would have been caused by

sharp cutting weapon.

15. In the backdrop of aforesaid facts and

situation coupled with analysis of evidence on record,

this Court is unable to subscribe to the view of the

learned trial Court that the appellant was having

intention to kill the injured, but subsequently,

prevented in not achieving the desired result,

however, the act of the appellant was squarely

covered by the ingredients of offence under Section

324 of IPC and, therefore, the conviction of the

appellant is required to be modified for offence under

Section 324 of IPC which is punishable with

imprisonment of either description up to three years

or with fine or with both. It is not in dispute that the

appellant was convicted in this case more than 28

years and 6 months back, when he was aged about

25 years. There is also no dispute about the appellant

to be involved in other serious cases like dacoity as

revealed from the impugned judgment and the

appellant, therefore, is not entitled to the beneficial

provision of either PO Act or Section 360 of the

Cr.P.C. Moreover, the appellant was in judicial

custody for near about five and half months in this

case as revealed from the record, but taking into

consideration the nature of injuries sustained by the

injured and the act of the appellant, this Court

considers that a sentence of Rigorous Imprisonment

for one year to the appellant would meet the ends of

justice.

16. In the result, the appeal stands allowed in

part on contest, but in the circumstance there is no

order as to costs. The impugned judgment of

conviction and sentence passed by learned Sessions

Judge, Sambalpur in S.T. Case No.267 of 1994 are

hereby set aside and modified to offence under

Section 324 of IPC with sentence of Rigorous

Imprisonment of one year to the appellant.

17. Be noted, since the petitioner was directed

to be released on bail by an order passed by this

Court on 30.03.1995 in this appeal, the bail bond(s)

of the appellant is/are hereby cancelled and the

appellant is directed to surrender to custody not later

than 1st November, 2023, to suffer the remainder of

his sentence, failing which the concerned IIC will take

proper steps to commit the appellant to prison.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 29th day of September, 2023/Subhasmita

Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Jr.Stenographer Reason: Authentication Location: High Court of Orissa Date: 29-Sep-2023 16:52:43