Orissa High Court

Girish Meher vs State Of Orissa ....... Opp. Party on 20 June, 2024

      THE HIGH COURT OF ORISSA AT CUTTACK

                  CRLREV No.514 of 2011

(In the matter of an application under Section 401 of the Criminal
Procedure Code, 1973)



Girish Meher                      .......                   Petitioner

                                  -Versus-

State of Orissa                   .......                Opp. Party


For the Petitioner   : Mr. R. K Sahoo, Advocate

For the Opp. Party   : Mr. B.K Ragada,
                       Additional Government Advocate


CORAM:

     THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA


 Date of Hearing: 22.04.2024 ::     Date of Judgment: 20.06.2024

S.S. Mishra, J.

1. The present Criminal Revision filed under Sections 401 of Cr.P.C.

is directed against the judgment and order dated 23.05.2011 passed by the learned Additional Sessions Judge, Bargarh in Criminal Appeal

No.07 of 2010, whereby the judgment of conviction and order of

sentence passed by the learned Chief Judicial Magistrate-cum-Assistant

Sessions Judge, Bargarh in C.T. Case No.129/33 of 2009 arising out of

G.R. Case No.966 of 2004 corresponding to Bhatli P.S. Case No.94 of

2004 was modified in terms of sentence from two years R.I. to one year

R.I., however, conviction was sustained.

2. The petitioner was subjected to prosecution in Bhatli P.S. Case

No.94 of 2004 registered under Sections 147/148/341/323/324/506/149

of I.P.C.

3. The prosecution case in brief is that on 27.12.2004 at about 10.15

A.M., the informant (P.W.1) presented a written report at Bhatli Police

Station that on that day at about 8.30 A.M., the accused persons

including the petitioner formed an unlawful assembly being armed with

Bhujali and other weapons and assaulted him along with his brother

(P.W.2) and mother (P.W.5). The informant (P.W.1) sustained injuries

on his back and left hand, whereas P.W.2 had sustained injury on his

back as well as both hands, P.W.5 had also sustained bleeding injury on

her hand. Thereafter they were treated at Government Hospital.

On the basis of such allegation, F.I.R. was lodged at Bhatli

Police Station, and charge sheet was submitted under Sections

147/148/341/323/324/506/149 of I.P.C. The learned S.D.J.M., Bargarh

vide order dated 21.03.2009 treated this case as a counter case to the

G.R. Case No.965/2004 corresponding to C.T. Case No.89/36 of 2007,

for which the learned S.D.J.M, Bargarh committed this case to the Court

of learned Additional Sessions Judge, Bargarh, even though the charge

sheet did not disclose any offence triable exclusively by the Court of

Sessions. Later on the case was transferred back to the Court of learned

Chief Judicial Magistrate-cum-Asst. Session Judge, Bargrah where

charges were framed against accused persons under Sections

148/324/149 of I.P.C. The petitioner along with other accused persons

were put to trial.

4. To bring home charges, the prosecution examined as many as 10

witnesses including the informant as P.W.1, P.W.2 & P.W.5 were the

injured victim. Whereas P.W.3, 4, 6, 7, 8 were the eye witnesses to the

occurrence and P.W.9 was the I.O. of the case and P.W.10 was the

doctor who examined the injured-victim of the occurrence. The

prosecution exhibited 6 documents. The plea of defence was that of

complete denial. In proof of their plea, defence examined none and

exhibited some documents, i.e., Exts. A to K.

5. The learned Chief Judicial Magistrate-cum-Assistant Sessions

Judge, Bargarh analyzed the entire evidence on record, found the

accused person Nos.2, 3, 4 and 5 not guilty of offences under Sections

148/324/149 of I.P.C. and acquitted them from all the charges, but the

petitioner was found guilty for commission of offence under Section 324

of I.P.C. only and sentenced him to undergo rigorous imprisonment for

two years.

6. The judgment of conviction and sentence dated 05.02.2010 passed

by the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge,

Bargarh in C.T. Case No.129/33 of 2009 was called in question by filing

of Criminal Appeal No.07 of 2010 before the Court of learned

Additional Sessions Judge, Bargarh by the petitioner. The learned

Appellate Court vide its judgment and order dated 23.05.2011 had partly

allowed the appeal inter alia stating as under:

<8. The Criminal Appeal is therefore allowed in part on contest. The impugned order of conviction of the Appellant for the offence under section 324 of I.P.C. needing no interference in this Appellant Forum is upheld. The sentence passed against the convict-Appellant is reduced to Rigorous imprisonment for one year instead of for two years.

7. The petitioner has challenged the judgment/order of conviction

and sentence of both the Courts below in the present Revision Petition.

8. Heard Mr. R.K. Sahoo, learned counsel for the petitioner and Mr.

B.K. Ragada, learned Additional Government Advocate for the State.

9. The prosecution has strongly relied upon P.Ws.1, 2 and 5, who

were the injured witnesses in the present case. P.Ws.3, 4, 6,7 & 8 were

the eye witnesses to the occurrence. P.W.10 was the doctor. From the

testimony of all the witnesses, the fact of occurrence was proved by the

prosecution witness beyond doubt. From the testimony of P.W.10, it is

also illuminating on the record that P.Ws.1, 2 and 5 were assaulted and

had sustained various injuries. The evidence of P.Ws.1, 2 and 5 along

with the evidence of the doctor straightway corroborates with the

testimony of all the eye witnesses deposed before the Court to the extent

that Girish Meher, the present petitioner alone had voluntarily caused

hurt to P.Ws.1, 2 and 5 by means of a knife. Therefore, barring the

petitioner, other four accused persons those who were tried with the

petitioner were rightly acquitted. Relevant would be to reproduce

paragraphs-14 and 15 of the trial Court judgment, which read as under:-

<14. As discussed above, the prosecution has failed to prove regarding the participation of accused persons Bishnu Meher, Mahendra Meher, Susil Meher and Hemanta Meher with accused Girish. Moreover, nothing is forthcoming from the evidence of P.Ws. that the accused persons had formed an unlawful assembly and that they committed rioting in prosecution of the common object of their assembly. The mere fact that accused Girish was holding a knife or caused hurt to some one, is not sufficient to hold that all the accused persons are guilty of rioting. Therefore, the prosecution case must fail U/s. 148 I.P.C.

15. Now it is to be seen, whether accused Girish caused voluntarily hurt to P.Ws 1,2 and 5 by means of a knife. In this regard, the evidence of P.W.2 reveals that accused Girish Meher dealt a knife blow on his back causing bleeding injury. P.W.5 has stated in her evidence that accused Girish Meher assaulted Rajendra Meher and Laba Meher by means of a knife and when she rescued P.Ws. 1 and 2, she sustained injury on her right palm by that knife. On the other hand, P.Ws. 1,2 and 3 have stated that accused Girish dealt a blow on the hand of P.W.5 causing bleeding injury. P.Ws. 1,2,3,5 and 6 have claimed in their evidence that accused Girish assaulted both P.Ws 2 and 5 causing bleeding injury on their person, but their evidence do not find any support from the medical evidence. P.W.10 has clearly and categorically stated in his cross-examination that the injuries found vide Exts 4/2 and 5/2 are not possible by knife blow. P.W.10 has also proved the injury reports in respect of

P.Ws. 2 and 5 as Exts 5/2 and 4/2 respectively. Thus, the medical evidence does not support the ocular evidence of P.Ws 1,2,3,5 and 6 that accused Girish caused voluntarily hurt to P.Ws 2 and 5 by means of a knife. Therefore, no reliance can be placed in the case of the prosecution and the evidence of P.Ws 1,2,3,5 and 6 that accused Girish caused voluntarily hurt to P.Ws 2 and 5.=

10. The present petitioner assailed the aforementioned judgment and

order in the Appeal. The Appellate Court strongly relied upon the

testimony of P.W.10, the doctor and drew corroboration from the

evidence of the eye witnesses and maintained the conviction against the

petitioner for offence punishable under Section 324 of I.P.C.

11. I find no reason to interfere with the judgment of the Courts below

in view of the un-impeachable evidence led by the prosecution to

establish the case against the petitioner. However, it has come on record

that this is a case arising out of a homestead land dispute between two

rival groups. On the intervention of the Panchayat, there was a

settlement. However, defying the settlement terms, the parties had

started quarreling, as a result of which, the occurrence had taken place

on 27.12.2004 at about 8.30 A.M. It has come on record that free-fight

had broken out on the same day, as a result of which, both the sides had

received injuries. It appears that the accused persons were also subjected

to medical examination and there was a cross case as well.

12. In the aforementioned background, I am of the considered view

that sentencing the petitioner and sending him to custody shall serve no

purpose. The present case is rather squarely covered by the judgment of

this Court in the case of Pathani Parida and another vs. Abhaya Kumar

Jagadev Mohapatra reported in 2012 (Supp.-II)OLR-469. Before the

trial Court, the petitioner prayed for the benefit of the Probation of

Offenders Act. However, the same was turned down by the Court below

inter alia stating as under:-

<The convict assaulted P.W.1 by means of a knife causing three incised wounds on his person. Considering the nature and gravity of the offence as well as the age of the convict, I am not inclined to release the convict under any of the provisions of Probation of Offenders Act, even if no previous conviction has been proved to his credit.=

13. In my considered view, the trial Court ought to have extended the

benefit of the Probation of Offenders Act to the petitioner in the facts of

the present case.

14. In view of the aforementioned, the Criminal Revision Petition

although is dismissed and the conviction of the petitioner is upheld, but

instead of sentencing the petitioner to suffer any punishment, I direct that

the petitioner be released under Section 4 of the Probation of Offenders

Act, 1958 for a period of one year on his executing a bond of Rs.5,000/-

with one surety for the like amount to appear and receive the sentence

when called upon during such period. During the probation period the

petitioner shall keep peace and maintain good behavior. The petitioner

shall remain under the supervision of the concerned Probation Officer