Orissa High Court
Bapi Pollai vs State Of Orissa .... Opposite Party (S) on 8 November, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Nov-2024 19:24:26
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.374 of 2016
(In the matter of an application under Section 401 read with Section
397 of the Code of Criminal Procedure).
Bapi Pollai .... Petitioner (s)
-versus-
State of Orissa .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Jitendra Samantaray, Adv.
For Opposite Party (s) : Mr. Sonak Mishra, ASC
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-27.09.2024
DATE OF JUDGMENT: -08.11.2024
Dr. S.K. Panigrahi, J.
1. The Petitioner, in this CRLREV, has assailed the judgment dated
21.03.2016 passed by the Additional Sessions Judge, Chatrapur
(Ganjam) in Criminal Appeal No.40 of 2013 affirming the judgment of
conviction and order of sentence dated 19.11.2012 passed by the
Assistant Sessions Judge, Kodala in S.T. No.63 of 2009 whereby he
was found guilty and sentenced to undergo S.I. for six months for the
offence under Section 323 of the I.P.C.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts necessary for disposal of this CRLREV are as follows: -
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Nov-2024 19:24:26
(i) On 18.02.2008/ at approximately 9030 A.M./ Arjun Polei ("the victim")
was en route to the LIC office to deposit funds when he was
intercepted by Bapi Pollai ("the accused")/ who obstructed his passage
by brandishing a firearm. The accused, along with associates, inflicted
severe injuries upon the victim using an iron rod and a spade handle,
resulting in profuse bleeding.
(ii) Upon receiving information about the assault, Sugyani Pollai, the
victim's spouse and complainant ("the informant")/ immediately
proceeded to the scene, where she discovered her husband lying with
significant bleeding injuries. With assistance from local residents, she
transported her husband in an auto-rickshaw to Kabisuryanagar
Medical Center in an unconscious state. Due to the critical nature of
his injuries, the medical officer advised transferring him to M.K.C.G.
Medical College and Hospital, Berhampur, where he received further
treatment. While the victim was undergoing medical care, the
informant filed an FIR, which was registered, and an investigation
ensued.
(iii) During the investigation/ the Investigating Officer ("I.O.") inspected
the crime scene, seized relevant incriminating evidence including the
weapon, prepared a site map, and issued a requisition for medical
examination of the injured. The involvement of the accused was
substantiated, leading to a charge-sheet filed against him under
Sections 341, 323, 204, 307 read with Section 506 of the Indian Penal
Code ("I.P.C."). The accused was subsequently tried before the trial
court on these charges.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Nov-2024 19:24:26
(iv) The defense asserted a plea of complete denial.
(v) In support of its case, the prosecution examined the injured, Arjun
Polei, as P.W.9. The informant, Sugyani Polei, testified as P.W.5.
Additional independent witnesses, including P.W.1-Koili Bisoi, P.W.3-
Bijay Swain, P.W.4-Hazari Polei, P.W.6-Meghanada Polei, P.W.7-
Chatara Polei, and P.W.8-Janaki Polei, were called by the prosecution;
however/ they did not corroborate the prosecution's case and were
declared hostile. The prosecution also examined two medical officers:
Dr. Ashok Kumar Mishra of Kabisuryanagar Medical (P.W.2) and Dr.
Bhupati Bhusan Das of M.K.C.G. Medical College and Hospital,
Berhampur (P.W.11), who verified the injury reports. The
Investigating Officer, Ratha Sethi, was examined as P.W.10. The
prosecution marked the FIR, seizure list, injury report, site map, CT
scan, X-ray, and other evidence as exhibits, with the weapon and the
injured's clothing labeled as M.Os. I to VII.
(vi) The defense called one Laxmi Polei as D.W.1 but did not submit any
documentary evidence.
(vii) After examining the evidence, the trial court found the testimony of
the injured P.W.9 to be credible. Consequently, the court acquitted the
accused of charges under Sections 341, 204, 307, and 506 of the I.P.C.,
yet found him guilty under Section 323 of the I.P.C., resulting in a
conviction.
(viii) During the appellate hearing, counsel for the appellant argued that
the trial court had erroneously assessed the evidence and reached an
unsound conclusion regarding the appellant's culpability which,
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Nov-2024 19:24:26
according to the appellant's counsel/ was unsustainable based on the
evidence presented. It was contended that P.W.9's testimony lacked
sufficient reliability and credibility to warrant conviction. The counsel
argued that the appellant should also have been acquitted under
Section 323 of the I.P.C.
(ix) Conversely, the Additional Public Prosecutor defended the
conviction, asserting that the trial court had appropriately evaluated
the available evidence and correctly determined the accused's guilt.
(x) After reviewing both parties' submissions and the case record, the
Additional Sessions Judge, Chatrapur (Ganjam), concurred with the
trial court's findings, concluding that the evidence was properly
considered and justified the accused-appellant's conviction.
Consequently, the learned Additional Sessions Judge dismissed the
appeal filed by the Petitioner. This revision petition follows.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions.
(i) The impugned judgment of conviction and sentence rendered by the
trial court and subsequently upheld by the Appellate Court are
erroneous and unsustainable in law.
(ii) Both the trial court and the Appellate Court failed to adequately
examine the materials on record, neglecting the manifest
contradictions and legal deficiencies within this case. Consequently,
the judgments issued by the lower courts are legally indefensible.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Nov-2024 19:24:26
(iii) Both the lower courts have committed significant legal errors by
convicting the Petitioner under Section 323 of the I.P.C. in the absence
of substantial and reliable evidence. Thus, the judgment and
conviction order warrant reversal.
(iv) Given that none of the independent witnesses supported the
prosecution's case, the conviction based solely on the uncorroborated
testimony of P.W.9 (the injured party) which is legally untenable and
must be set aside.
(v) The courts below erred in disregarding the testimony of D.W.1, who
explicitly stated that P.W.9 sustained injuries in a motorcycle accident.
Instead, the trial court convicted the petitioner under Section 323 of
the I.P.C., relying solely on P.W.9's testimony and medical reports,
which is legally unsustainable and must be set aside.
(vi) The trial and appellate courts erred grossly by convicting the
petitioner under Section 323 of the I.P.C. while acquitting him of
charges under Sections 341, 294, 307, and 506 of the I.P.C.,
necessitating the reversal of the judgment and conviction.
(vii) Considering the testimony of D.W.1 and the unexplained delay in
lodging the FIR, the trial court ought to have acquitted the petitioner
of the charge under Section 323 of the I.P.C. The resulting conviction
constitutes a miscarriage of justice and should therefore be
overturned.
(viii) Consequently, it is submitted that the impugned orders are liable to
be quashed. Thus, the Petitioner respectfully prayed for the allowance
of this CRLREV.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Nov-2024 19:24:26
III. SUBMISSION OF THE OPPOSITE PARTY/STATE:
4. On the contrary, learned counsel for the State supporting the
impugned judgments rendered by the courts below submitted that the
trial court has considered all the aspects relevant for the purpose of
award of sentence while imposing sentence to undergo S.I. for six
months on the Petitioner. Similarly, the lower Appellate Court
properly while re-appreciating the available evidence on record has
passed the impugned judgment affirming the judgment of conviction
passed by the trial court. There is no cogent reason to interfere with
the same. Therefore, he prayed for dismissal of this Criminal Revision.
IV. COURT'S REASONING AND ANALYSIS:
5. Heard learned counsel for the parties and gone through the findings
recorded by both the courts below so also the materials placed on
record. It is imperative to now examine the legal principles in light of
the merits of the case.
6. The term "hurt" is commonly understood to refer to any act that
results in physical pain, injury, or the onset of disease in an
individual. Hurt can be inflicted either voluntarily or through the use
of dangerous weapons or methods. When hurt is caused voluntarily,
it falls under the purview of Section 323 of the I.P.C., which is
outlined as follows:
"Section 323 - Punishment for voluntarily causing
hurt:
Whoever, except in the case provided for by section
334, voluntarily causes hurt, shall be punished with
imprisonment of either description for a term which
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Nov-2024 19:24:26
may extend to one year, or with fine which may
extend to one thousand rupees, or with both."
7. In order to establish an offence under Section 323 of the I.P.C., the
presence of following ingredients must be present: -
i. The accused must have voluntarily or consciously
caused hurt.
ii. The accused must have caused bodily pain,
disease, or infirmity to the victim.
iii. There must be direct physical contact between the
accused and the victim.
8. When an individual commits the offence of voluntarily causing hurt
under Section 323 of the I.P.C, he/ she is liable to be punished with
imprisonment for a term of up to one year, or with a fine.
9. In the present case, the medical evidence clearly demonstrates that the
accused inflicted injuries on the victim using a blunt object, following
an altercation between the accused and the victim. As a result, the
charge under Section 323 of the I.P.C. is substantiated against the
Petitioner.
10. Upon reviewing the impugned order and the accompanying
documents, it becomes evident that both the Trial Court, and later the
Appellate Court upon re-evaluation, meticulously analysed the
evidence gathered by the police to ascertain whether a prima facie
offence under Section 323 of the I.P.C. was made out.
11. At this stage, the defense is not permitted to challenge the
truthfulness, credibility, or veracity of the prosecution's statements,
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Nov-2024 19:24:26
circumstances, or documents. The question of whether the accused
inflicted grievous harm upon the victim with a rod/wooden handle, or
whether such harm was voluntarily caused, is a matter to be
determined during the evidentiary phase before the Trial Court, and
subsequently, the Appellate Court.
12. The medical report unequivocally confirms that the injury was
inflicted by the accused using a blunt object. Consequently, at the
stage of framing charges, there is no room for a detailed appreciation
of the entire body of evidence. The Trial Court, and subsequently the
Appellate Court, have duly examined the case and determined that a
prima facie case against the accused exists and has rightly convicted
the Petitioner for the offence punishable under Section 323 of the
I.P.C.
13. Upon reviewing the materials on record, it appears that the
independent witnesses called by the prosecution failed to substantiate
the case. However/ P.W.1's testimony indicates that he found Arjuna
lying injured at the scene. In contrast, D.W.1 also testified to ascertain
the veracity of that finding of the victim injured but attributed the
injuries to an accident. As a post-occurrence witness, D.W.1's
testimony does not significantly aid to the defense. The evidence from
both prosecution and defense suggests that the victim sustained
injuries on the day in question, a fact further corroborated by the
medical testimony provided by P.W.2, Dr. Ashok Kumar Mishra, and
P.W.11, Dr. Bhupati Bhusan Das.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Nov-2024 19:24:26
14. The trial court concluded that the informant/ the injured party's wife/
lacked direct knowledge of the incident, rendering her testimony
immaterial to the case. However, the trial court placed substantial
reliance on the testimony of P.W.9, the injured party himself,
following a thorough analysis. In his examination-in-chief, P.W.9
specifically testified that on the day of the incident, the Petitioner
detained him, snatched a chain from him, and pushed him to the
ground. The Petitioner then allegedly struck P.W.9 on the back of his
head and other body parts with a "Kodi Benta/" causing multiple
injuries, and also took Rs.40,000/- from him. During cross-
examination, P.W.9 reiterated these statements, reinforcing his
account. The injury report and bed head ticket further corroborate his
testimony, aligning with the injuries he described. The court found
P.W.9's evidence to be coherent/ credible/ and persuasive/ with no
exaggeration or inconsistencies that would undermine its reliability.
Consequently, the trial court carefully evaluated P.W.9's testimony
and found the Petitioner guilty of the offense under Section 323 of the
I.P.C.
15. The petitioner has shed light on contradiction in the depositions of the
P.Ws. It is, however, well settled in law that the minor discrepancies
are not to be given undue emphasis and the evidence is to be
considered from the point of view of trustworthiness. The test is
whether the same inspires confidence in the mind of the Court. If the
evidence is incredible and cannot be accepted by the test of prudence,
then it may create a dent in the prosecution version. If an omission or
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Nov-2024 19:24:26
discrepancy goes to the root of the matter and ushers in incongruities,
it needs no special emphasis to state that every omission cannot take
place of a material omission and, therefore, minor contradictions,
inconsistencies or insignificant embellishments do not affect the core
of the prosecution case and should not be taken to be a ground to
reject the prosecution evidence. The omission should create a serious
doubt about the truthfulness or creditworthiness of a witness. It is
only the serious contradictions and omissions which materially affect
prosecution case but not every contradiction or omission. The trial
court has duly taken note of the irregularities with due explanation
about them. Thus, this court finds no ground to reconsider the
depositions and the irregularities therein.
16. In such view of the matter, this Court does not find any cogent and
plausible ground to interfere with the impugned judgments/ orders
passed by both the courts below.
17. Accordingly, this CRLREV is dismissed.
(Dr. S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 8th Nov., 2024/ B. Jhankar
