Kalia Kunda @ Thesa Kalia vs The State Of Odisha .... Opposite Party ...
2024 Latest Caselaw 10499 Ori

Orissa High Court

Kalia Kunda @ Thesa Kalia vs The State Of Odisha .... Opposite Party ... on 25 June, 2024

Author: S.K. Panigrahi

Bench: S.K. Panigrahi

                                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                              CRLREV No.129 of 2024
                     (In the matter of an application under Section 401 read with Section
                     397 of the Code of Criminal Procedure).

                    Kalia Kunda @ Thesa Kalia                    ....           Petitioner(s)
                                                      -versus-
                    The State of Odisha                          ....      Opposite Party (s)

                    Advocates appeared in the case through Hybrid Mode:
                    For Petitioner(s)       :          M/s. Soubhagya Kumar Dash, Adv .
                                                                 Mr. S.K. Tripathy, Adv.



                    For Opposite Party (s)        :               Mr. Dhananjaya Mund, AGA

                                   CORAM:
                                   DR. JUSTICE S.K. PANIGRAHI

                                        DATE OF HEARING:-01.05.2024
                                       DATE OF JUDGMENT: -25.06.2024
                  Dr. S.K. Panigrahi, J.

1. In filing this Criminal Revision, the Revisionist/Petitioner has not only

challenged the judgment of conviction and order of sentence dated

22.02.2024 passed by the learned Sessions Judge, Berhampur, Ganjam in

Criminal Appeal No.37 of 2023, but has also challenged the judgment

dated 10.08.2023 passed by the learned Assistant Sessions Judge-cum-

Chief Judicial Magistrate, Ganjam Berhampur in S.T. No.31 of 2009.

I. FACTUAL MATRIX OF THE CASE:

2. The brief fact of the case in brevity remains:-

Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47

(i) One Brundaban Sahu lodged an F.I.R/ report before the Nuapada

Outpost alleging therein that on 30.05.2008 at about 4.30pm the accused

Kalia Kunda @ Thesa Kalia fell down on the ground losing his balance

on his motorcycle at Patrachudi. During that time, while his nephew

Dusmanta Chandra Sahu tried to rescue him, the accused Thesa Kalia

asked him as to whether he knows him. He also abused him and

threatened to kill.

(ii) After some time while Dusmanta was at village B. Laxminarayanpur,

the accused Thesa Kalia along with another person reached there

holding bamboo Thenga in order to kill him and also assaulted him on

his head and other body parts. When Akura Gouda tried to rescue

Dusmanta, they had also abused him and assaulted him. Due to such

assault, Dusmanta became senseless. On being informed about such

incident, the informant came and took him to the M.K.C.G. Medical

College and Hospital, Berhampur for treatment. Due to such assault

Dusmanta sustained injury on both his hands. It was further alleged

therein that the accused had demanded a sum of Rs.50,000/- from him.

(iii) On receipt of the report, the O.I.C of Nuagaon Police Station registered

the F.I.R under Sections 341/294/323/307/506/385/34 of the I.P.C being

numbered as Nuagaon P.S. Case No.32 of 2008 against the

Revisionist/Petitioner. Upon registration of the F.I.R. copy of the same

was also forwarded to the court of the learned J.M.F.C, Digapahandi.

Accordingly, G.R. Case No.116/2008 was also registered.

(iv) Thereafter, the Police personnel upon conclusion of the investigation as

Signature Notwell as spot visit, on 20.09.2009 submitted the charge-sheet against the Verified Digitally Signed

Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 Revisionist/Petitioner as well as one Kuresh Gouda vide Charge-sheet

No.63. Upon submission of charge-sheet the learned Magistrate took

cognizance of the offences and thereafter, forwarded the case to the

court of the Sessions as the offences involved were triable by the court

of Sessions.

(v) It is pertinent to mention here that during course of trial the case of the

accused Kuresh Gouda was abated vide order dated 27.05.2018. In order

to prove its case, the Prosecution examined all the eight witnesses.

P.W.1 is the seizure witness. P.Ws.2, 3 & 6 are the occurrence witnesses.

P.W.4 is the complainant. P.W.5 is the injured victim. P.W.7 is the I.O. of

the Case. P.W.8 is the Medical Officer, who examined the victim

Dusmanta Chandra Sahu. On the other hand, none has been examined

from the side of the accused.

(vi) Being appreciated with the evidences, the learned trial court came to the

conclusion that the prosecution could not prove the case for the offences

under Sections 341/294/506 & 385 of the I.P.C. and accordingly,

acquitted the Revisionist/Petitioner from those offences, but at the same

time convicted the Revisionist/Petitioner for the offences punishable

under Sections 307/323 & 325 of the I.P.C. and sentenced to undergo R.I.

for two years with fine of Rs.5,000/- or else in default to undergo R.I for

five months for the offence under Section 307 of the I.P.C. No separate

sentence was awarded for the offences under Section 323 and 325 of the

I.P.C.

(vii) Thereafter, being aggrieved by the judgment dated 10.08.2023 passed by

Signature Notthe learned Assistant Sessions Judge-cum-Chief Judicial Magistrate, Verified Digitally Signed

Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 Ganjam-Berhampur in S.T. No.31/2009, the Revisionist/Petitioner

preferred an appeal before the court of the learned Sessions Judge,

Ganjam-Berhampur, which was registered as Criminal Appeal No.37 of

2023.

(viii) Accordingly, upon hearing the above noted appeal the learned lower

appellate court though found that the conviction of the

Revisionist/Petitioner is not made out for the offence under Section 307

of the I.P.C, while setting aside the conviction under Section 307 of the

I.P.C, held that the Revisionist/Petitioner is guilty of offence under

Section 325 of the I.P.C. Accordingly, the learned lower appellate court

modified the sentence to undergo R.I. for a period of one year and to

pay a fine of Rs.5,000/- or else in default of making payment of such fine

to undergo R.I. for five months for the offences under Section 325 of the

I.P.C.

(ix) Being aggrieved by such orders/judgments of the learned trial court as

well as the learned lower appellate court, the Revisionist/Petitioner has

preferred this CRLREV.

II. SUBMISSIONS ON BEHALF OF THE PETITIONER:

3. Learned counsel for the Revisionist/Petitioner earnestly made the

following submissions in support of his contentions.

(i) Challenging the impugned judgments/orders, learned counsel for the

Revisionist/Petitioner submits that the P.W.3/Akuro Goudo in his

evidence before the court in seisin over the matter spoke that he was at a

little bit of distance from the place of occurrence and on hearing shouts

Signature NotheVerified ran to the injured and till his reaching the spot the accused persons Digitally Signed

Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 had already assaulted the injured on his head. At this juncture, he

submits that based on this evidence it is clear that this witness had not

seen any assault over the injured. In the cross examination he admitted

at Para 3 that he, for the first time, deposed regarding the incident

before the court.

(ii) Learned counsel for the Revisionist/Petitioner further contends that in

the chief examination P.W.5 i.e. the injured had stated regarding the

assault over him by the accused person. But, in the cross examination at

Para-5 he specifically stated that as the accused persons assaulted him

from the back side, he cannot say the exact role played by the accused

persons. He had not even stated such fact during the course of

examination before the Police. At the time of assault, he raised his right

hand and consequently sustained injuries on both the hands. At Para 9,

he has also not stated that his uncle Rajendra Sahu and one Damodar

Behera took him to the hospital.

(iii) In this context learned counsel for the Revisionist/Petitioner submits

that it is essential to examine the medical report, based on which the

injured was examined by the P.W.8 i.e. the Doctor. The injury report

marked as Ext.3 discloses that the injured Dushmant Sahu was brought

and identified by the informant Brundaban Sahu/P.W.4 and on

01.06.2008 the Police issued the injury requisition, whereas the injured

was examined on 30.06.2008 and the report of the Doctor was submitted

on 16.07.2008. The Doctor P.W.8 has admitted that bed head tickets of

the injured relating to the initial treatment were not seized by the

Signature NotInvestigating Verified Officer. Therefore, the initial treatment of the injured Digitally Signed

Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 could not be established by the Prosecution, as the history of the injury

always remains on the bed head tickets. But, in the present case the

Doctor admitted that he had not seen the bed head tickets.

(iv) In the circumstance, learned counsel for the Revisionist/Petitioner

submits that there is no nexus between the injuries and the manner of

assault made by the accused persons, as there is no entry made

anywhere regarding the assault made by the accused persons and

subsequently the injured sustained the injuries. He further contends

that P.W.4 i.e. the informant, who is a post occurrence witness had

admittedly stated before the court in seisin over the matter that he had

not stated before the Police on getting a phone call he went to the

injured and subsequently reported the matter.

(v) Learned counsel for the Revisionist/Petitioner also submits that through

the incident took place on 31.05.2008, the FIR was submitted before the

concerned court on 02.06.2008. He, accordingly, submits that delay in

sending the FIR to the court creates a doubt on the false implication on

the accused persons in the present case by the informant and the

injured. He further contends that so far as the investigation part is

concerned; the I.O/P.W.7 had only seized a bamboo stick, but the same

was not supported by any witnesses. The spot map prepared by the I.O

also does not speak about the exact location of the incident.

(vi) In view of such discrepancies in the evidences of the Prosecution and

due to lack of corroboration from other witnesses and also for the

material particulars it cannot be safely concluded that the prosecution

Signature Notcould be able to establish that it is a case beyond all reasonable doubts.

Verified Digitally Signed

Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 Accordingly, the Prosecution was miserably failed to establish that the

case is beyond all reasonable doubts and therefore, the

Revisionist/Petitioner deserves to be acquitted due to lack of substantial

evidence. Learned counsel for the Revisionist/Petitioner, accordingly,

prays for allowing this CRLREV.

III. SUBMISSION OF THE PROSECUTION:

4. Learned counsel for the State submits that the learned trial Court has

vividly discussed about the evidence on record while holding the

Petitioner guilty of offence under Sections 307/323/325 of the IPC. He

further contends that though there is no other direct evidence, the

evidence of the injured-eye witness PW.5 and PW.3 is sufficient to hold

the Petitioner to be the author of the injuries sustained by the injured

PW.5.

IV. COURT'S REASONING AND ANALYSIS:

5. Aside from PW.5 the injured himself, PW.3 is an eye witness to the

incident, who stated about the incident. According to PW.5 on

30/05/2008 at about 04:30 PM while he along with PW.3 had to the place

of construction to supervise the work, at that time both the accused

persons arrived there by means of a motorcycle and said that "MATE

CHINI PARILUKI" and when he denied to identity him, he threatened

him and left the spot and after some time when he was supervising

road work at B. Laxminarayanpur, they again arrived there and tried to

assault him on his head from his backside and when he raised hand, the

blow hit on his right hand and to protest another blow, he again raised

Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47 his left hand and sustained fracture injury on his left hand. The accused

persons also assaulted on his head causing head injury.

6. During the cross-examination, PW.5 deposed that while he was

standing on the road which is connecting to Digapahandi to Turubudi,

the accused persons came there with their motorcycle, which was about

40 to 45 K.M. speed per hour and dashed against the humps and fell

down to the left side of the road at a little distance from him. He had

parked his Pulsar Motorcycle in front of the shop to the road side i.e., on

the footpath and went to the road to supervise the road work. The

accused persons threatened him on the road near the humps at village

Patrachudi at about 04:00 P.M. According to PW.5 in para-5 of his cross-

examination, at about 04:30 PM the alleged occurrence took place,

where he was assaulted by the accused persons. Aside from PW.5 and

PW.3, all other witnesses are post occurrence and hear-say witnesses.

7. PW.8 is the doctor, who treated the injured PW.5 at MKCG Medical

College & Hospital, Berhampur in the Department of Orthopedics and

he found five injuries on the person of PW.5 out of which the injury

No.(v) being fracture of right ulna was opined by him as grievous

injury. He proved the injury report vide Ext.3.

8. On going through the impugned judgment, it is seen that the learned

trial Court has vividly discussed about the evidence on record while

holding the Petitioner guilty under Sections 307/323/325 of the IPC.

Though there is no other direct evidence but the evidence of the

injured-eye witness PW.5 and PW.3 is sufficient to hold the Petitioner to

Signature NotbeVerified the author of the injuries sustained by the injured PW.5. Digitally Signed

Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47

9. Section 307, IPC provides punishment for 'Attempt to murder'. It

provides that any act done with such intention or knowledge and under

such circumstances that, if by that act death is caused then the offender

would be guilty of murder. Section 299, IPC defines the offence

'Culpable homicide'. Section 300, IPC defines the offence 'Murder' and

provides that except the exceptions as provided in that section, culpable

homicide is murder if the act by which death is caused is done with the

intention of causing death or causing such bodily injury as offender

knows to be likely to cause the death or bodily injury so caused is

sufficient in the ordinary course of nature to cause death or the person

committing the act knows that it is so imminently dangerous that it

must, in all probability cause death or such bodily injury as is likely to

cause death. Therefore, an attempt to commit offence fulfilling any of

the aforesaid ingredients (as provided in Section 300 of the IPC)

amounts to an offence under Section 307 of the IPC.

10. In this case PW.5 (injured), PW.3 and PW.4 (informant) have not stated

in their evidence that accused had the intention to kill PW.5. The

grievous injury i.e., the injury No.(v) fracture of right ulna never be said

to be an injury on vital part of the body, thereby attracting the

presumption of causing death of the injury in ordinary course of nature.

The Doctor, PW.8, though stated that injury No.(v) was grievous in

nature, but he did not say if any of the injuries was sufficient in

ordinary course of nature to cause death of PW.5 or was likely to cause

death of the injured or that such injuries were imminently dangerous

Signature Notand, in all probabilities, could have caused death of PW.5.

Verified Digitally Signed

Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47

11. No other evidence was adduced by the prosecution to substantiate the

charge for the offence under Section 307 of the IPC, but the incident as is

seen from the evidence of PW.5 during his cross-examination at para-4

and the FIR narrations was not with any prior planning and it

happened all of a sudden. Thus, merely on the basis of the gravity of the

injury on the person of the injured PW.5, the accused / petitioner could

not have been convicted for the offence under Section 307 of the IPC.

Accordingly, his conviction under Section 307 of the IPC is set aside. But

regard being had to the nature of injuries, the accused / Petitioner is

liable to the offence under Section 325 of the IPC.

12. Accordingly, this Court does not accede to the submissions of the

Petitioner. With respect to the aforesaid discussion, this Court is not

inclined to interfere with the impugned judgement of the trial court.

13. This criminal revision petition is hereby dismissed.

14. Interim order, if any, passed earlier stands vacated.

(Dr. S.K. Panigrahi) Judge

Orissa High Court, Cuttack, Dated the 25th June, 2024/

Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 11:04:47