Mangulu Naik vs State Of Orissa
2025 Latest Caselaw 6697 Ori

Orissa High Court

Mangulu Naik vs State Of Orissa on 5 April, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                   CRLA No.1009 of 2024

   (An appeal U/S.374 of the Code of Criminal Procedure,
   1973 against the judgment passed by Ms. Deepa Das,
   learned Civil Judge(SD)-cum-Asst. Sessions Judge
   (Woman's Court), Boudh in S.T. Case No.10 of 2023
   arising out of Boudh PS Case No.207 of 2022, of the
   Court of SDJM, Boudh).

   Mangulu Naik                      ...         Appellant
                          -versus-

   State of Orissa                   ...       Respondent

   For Appellant           : Mr. B.Karna, Advocate

   For Respondent          : Mr. M.K.Mohanty, Addl. PP

       CORAM:
                   JUSTICE G. SATAPATHY

  F DATE OF HEARING & JUDGMENT:05.04.2025(ORAL)

G. Satapathy, J.

1. This criminal appeal is directed against the

impugned judgment dated 30.09.2024 passed by

learned Asst. Sessions Judge (Woman's Court), Boudh,

in ST Case No.10 of 2023 convicting the appellant for

commission of offences punishable U/Ss.341/324/307

of IPC and sentencing him to undergo Rigorous

Imprisonment (R.I) for a period of 10 years with

payment of fine of Rs.10,000/- in default whereof, to

undergo RI for six months for offence U/S. 307 of IPC;

and to undergo Simple Imprisonment (SI) for a period

of fifteen days for offence U/S.341 of IPC with no

separate sentence awarded for commission of offence

U/S.324 of IPC. The aforesaid sentences are directed to

be run concurrently and with benefit of set off of pre-

trial detention against the substantive sentence.

2. The prosecution case in brief is, on 08.08.2022

at about 5.00 P.M while the injured PW.10 and his wife

were entering to their house with their cow, the

appellant came from back side and dealt blows to the

injured PW.10 on his head by means of an axe, to

which PW.2 (wife of PW10) raised commotion and other

persons arrived at the spot with retreat of the appellant

from the spot. Accordingly, PW.10 was shifted to DHH,

Boudh for his treatment and also referred to VSS

Medical College & Hospital, Burla for his better

treatment and he was admitted therein for four days to

undergo treatment.

On this incident, the younger brother of the

injured PW.1 Sushil Kumar Behera lodged an FIR under

Exhibit P-1 before the IIC Model PS Boudh, who

registered Boudh PS Case No.207 of 2022 and directed

ASI PW.9 Gitanjali Pradhan to investigate the matter.

Accordingly, PW9 proceeded to conduct the

investigation by visiting the spot, preparing spot map,

examining witnesses, arresting the appellant by seizing

weapon of offence i.e. one axe and forwarding the

appellant to the Court. After completing all formalities

of investigation and receiving injury report, PW.9

submitted charge-sheet against the appellant for

commission of offences U/Ss.341,324,354,307 of IPC.

3. On finding prima facie materials, the learned

SDJM, Boudh took cognizance of aforesaid offences and

committed the case record to the Court of Session who

transferred the record to the learned Asst. Sessions

Judge (Woman's Court). Upon going through the

materials placed on record and hearing the parties, the

learned trial Court presuming the appellant to have

committed the offences has framed charge against him

for offences U/Ss.341/ 324/354/307 of IPC, to which

the appellant pleaded not guilty resulting in trial in the

present case.

4. In support of the charge, the prosecution

examined altogether ten witnesses and proved eleven

documents under exhibits P-1 to P-11 as against no

evidence whatsoever by the defence. The plea of the

appellant- convict in course of trial was denial

simplicitor and false implication. On conclusion of trial,

the learned trial Court after appreciating the evidence

on record upon hearing the parties convicted the

appellant for offences U/Ss.341/324/307 of IPC and

sentenced him to the punishment indicated (supra).

Being aggrieved with the conviction and sentence, the

appellant has preferred this appeal.

5. In the course of hearing, Mr. Bikash Karna,

learned counsel for the appellant while assailing the

impugned judgment submits that although the injured

has not been cross-examined, but the learned trial

Court has appreciated the evidence on record

erroneously to convict the appellant for offence

U/Ss.341/324/307 of IPC since the evidence of Doctor

PW.7 discloses the injury to be possible by a fall on a

hard and rough surface and the injured having given

the suggestion in cross-examination to have sustained

such injuries due to fall on the road. Mr. Karna further

submits that due to above reasons, the conviction of

the appellant is bad in the eye of law and liable to be

set aside. Mr. Karna, however, alternatively prays to

set aside the conviction and sentence of the appellant

for offence U/S.307 by maintaining his conviction for

offence U/S. 324 of IPC to award a lenient sentence by

directing the punishment of imprisonment of the

appellant for the period already undergone.

5.1. On the other hand Mr. M.K. Mohanty,

learned Addl. Public Prosecutor however, strongly

opposing the prayer of the appellant submits inter alia

that the injuries to the injured being on vital part of the

body, like on the head and the same having been not

controverted in cross-examination, the conviction of the

appellant cannot be considered to be bad for offence

U/S.307 of IPC and thereby the learned trial Court has

not committed any illegality in convicting the appellant

for offence U/S.307 of IPC and sentencing him thereon.

Accordingly, Mr. Mohanty, prays to dismiss the appeal.

6. After having considered the rival submission

upon perusal of record, since the appellant assails his

conviction for offence U/Ss. 341/324/307 of IPC which

are based on the injuries to the injured, it is considered

apposite to refer to the evidence of injured at the

inception. The injured in this case being examined as

PW.10 has testified in the Court that the appellant dealt

blows on his head by means of an axe and he sustained

severe bleeding injuries on his head and fell down on

the ground. The evidence of injured itself transpires

that the appellant had assaulted him(injured) thrice on

his head and he sustained injuries thereon and was also

shifted to VSS Medical College & Hospital, Burla for his

better treatment and he was admitted there at VSS

Medical College & Hospital for four days, however, no

bed head ticket of the injured has been proved by the

prosecution to establish her admission in hospital for

four days, but the evidence of injured was never

shattered or demolished by the defence in cross-

examination as the defence has not at all cross-

examined the injured on material points of injuries,

except unsuccessfully giving some bald suggestions

that he(injured) sustained injuries as he fell down when

his cow dragged him on the road.

7. Besides, PW.2 being the wife of the injured is an

eye witness to the occurrence and she has testified in

the Court alike her husband by deposing that the

appellant detained them and assaulted her husband by

means of an axe on his head and caused serious

bleeding injuries to his person. The cross-examination

of PW.2 did not yield any result to the benefit of the

defence. Moreover, the Doctor who had examined the

injured being examined as PW.7 has not only proved

the injury report of the injured, but also has stated in

evidence that on examination of the injured, he found

one laceration of size 7 cmx5cmx5cm running on the

scalp posterior and lateral from middle of the scalp. It

is his further evidence that he also found another

laceration on the scalp of the injured with length of 2cm

and also found his skull bone depression which was

irregular in shape and size. PW.7 has in fact clarified in

his evidence that all the injuries sustained by PW.10

were simple in nature. In addition, the prosecution has

also brought evidence for the motive of the crime to be

some civil dispute with regard to giving of Ac.1.5

decimals of land by the injured to the appellant for

cultivation on rent.

8. From a cumulative analysis of evidence on

record together with discussion made hereinabove, it is

in fact very clear that the appellant had assaulted the

injured by means of an axe and the injured has

sustained simple injuries on his head. However, the

prosecution has not been able to establish through any

clear and cogent evidence that the appellant had

intention to kill the injured and in such process, had

assaulted the injured by means of an Axe. Section 307

of IPC makes very clear that unless there is an

intention to kill, no offence U/S.307 of IPC would stand

attracted. The language as used in Section 307 of IPC

refers to "intention or knowledge" and makes it very

clear that under such circumstance that, if he by that

act caused death, he would be guilty of murder. In this

case, neither any intention to kill is attributable to the

appellant nor has any knowledge been ascribed to the

appellant through any clear evidence. On the other

hand, the appellant is found to have inflicted simple

injuries by assaulting the injured with an axe which is

in fact a dangerous weapon as contemplated in Section

324 of IPC which speaks that whoever, except in cases

provided for by Section 334, voluntarily causes hurt by

means of any instrument for shooting, stabbing or

cutting, or any instrument which, used as a weapon

offence, is likely to cause death or by means of fire or

any heated substance, or by means of any poison or

any coercive substance, or by means of any explosive

substance or by means of any substance which it is

deleterious to the human body to inhale, to swallow, or

to receive into the blood, or by means of any animal

shall be punished with imprisonment of either

description for a term which may extend to three years

or with fine or with both. Further, there is no evidence

available on record to say that the appellant had in fact

restrained the injured and his wife to proceed in a

direction in which they have got right and thereby the

offence U/S.341 is also not made out.

9. In view of the aforesaid discussion made

hereinabove together with the evidence as available on

record, this Court is of the considered opinion that the

conviction of the appellant for offence U/S. 307

deserves to be altered/modified to one under Sec. 324

of IPC, but the appellant having charged and convicted

for offence U/S. 324 of IPC, his conviction for offence

U/Ss. 341/307 of IPC is hereby set aside. Accordingly,

the conviction of the appellant is modified/altered to

one U/S. 324 of IPC. It is however, brought to the

notice of the Court that the appellant was all along on

bail during trial and he remained in custody for

seventeen days during trial, but after his conviction, the

appellant is in custody for last six months and five days

and in all total the appellant has already undergone

incarceration for a period of six months and twenty two

days, however, in the facts and circumstance,

especially when the dispute between the injured and

the appellant was for a petty civil matter relating to

cultivation of Ac.1.5 decimals of land on rent and there

being no previous conviction proved against the

appellant, this Court considers in the interest of justice

to modify the substantive sentence of the appellant to

the period already undergone by reducing his default

sentence to some extent. Accordingly, the appellant is

directed to undergo imprisonment for the period

already undergone and to pay a fine of Rs.10,000/-, in

default whereof, to undergo the Rigorous Imprisonment

(RI) for a period of three months. In case of payment

of fine, the same shall be disbursed to the injured on

proper identification.

10. In the result, the criminal appeal succeeds in

part on contest, but in the circumstance there is no

order as to costs. Accordingly, the judgment of

conviction and order of sentence dated 30.09.2024

passed by learned Asst. Sessions Judge (Woman's

Court), Boudh, in ST Case No.10 of 2023 are modified

to the extent indicated above.

Since the appellant is in jail custody, warrant of

modified sentence on appeal in Form No.(M)78 of GR &

CO, (Criminal) Vol-II be immediately sent to the

Officer-in-charge of the concerned jail through e-mail

or any other faster communication mode in view of the

Rule 155 of the GR & CO, (Criminal) Vol-I.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 5th day of April, 2025/Jayakrushna

Location: High Court of Orissa, Cuttack