Daka Hemram vs State Of Orissa
2025 Latest Caselaw 1426 Ori

Orissa High Court

Daka Hemram vs State Of Orissa on 18 July, 2025

           THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLA No.124 of 2004

(In the matter of an application under Section 374(2) of Criminal Procedure Code)


Daka Hemram                         .......                          Appellant

                                   -Versus-

State of Orissa                      .......                          Respondent

For the Appellant : Mr. Bishnu Prasad Pradhan, Advocate

For the Respondent : Mr. R.B. Dash, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 10.07.2025 : Date of Judgment: 18.07.2025

S.S. Mishra, J. The present criminal appeal filed by the sole

appellant under Section 374 (2) of Cr.P.C. is directed against the

judgment of conviction and order of sentence dated 31.03.2004 passed

by the learned Additional Sessions Judge, Fast Track Court-IV,

Bhubaneswar in Sessions Trial Case No. 42/297 of 2003, whereby the learned trial Court has convicted the accused-appellant for the offence

punishable under Section 326 IPC and, accordingly, sentenced him to

undergo R.I. for three years and to pay a fine of Rs.500/-, in default of

payment of fine to undergo R.I. for six months.

2. Heard Mr. Bishnu Prasad Pradhan, learned counsel for the

appellant and Mr. R.B. Dash, learned counsel for the State.

3. The prosecution case against the appellant in terse and brief is that

on 03.07.2003 at about 10.30 A.M. while some boys were gambling, the

appellant objected the same and asked the boys not to gamble in the

village. One Rabi Laguri (P.W.1) and Budhibaman Das (P.W.2)

protested to the conduct of the appellant because the appellant was

abusing the children. The appellant became furious and brought a bow

and arrow from his house and shot at Rabi Laguri (P.W.1). The arrow

pierced on the chest of Rabi Laguri, as a result of which he fell down on

the ground. Immediately, he was shifted to the hospital and in the

hospital P.W.1 was operated and the arrow was removed. On the basis of

the aforesaid allegation, Nayapali P.S. Case No.151 of 2003 was

registered, which corresponding to G.R. Case No. 2190 of 2003. The

investigation was carried out by P.W.7 and charge sheet was filed on the

allegation of the commission of offence under Sections 341 and 307 IPC

against the appellant. The court below framed the charge for the offence

as alleged and put the appellant to trial, as the appellant put a stance of

denial and claimed trial.

4. The prosecution so as to establish the charges against the appellant

examined as many as seven witnesses, out of eleven charge sheeted

witnesses. P.W.1 is the injured, whereas P.W.2 is the informant and the

eye witness to the occurrence. P.W.5 and P.W.6 are the doctors, P.W.7 is

the investigating officer in the present case. The other witnesses are the

villagers those who have turned hostile.

5. The trial court, on the basis of the evidence of P.W.1 and P.W.2,

which stood corroborated with the testimony of P.W.5 and P.W.6,

recorded the guilty of the appellant of the offence under Section 326 IPC

instead of the charged offence under Section 307 IPC. The trial court

acquitted the appellant of the charge for the offence under Section 341

IPC. On the said count the trial court has sentenced the appellant to

undergo R.I. for three years and to pay a fine of Rs.500/-, in default to

undergo R.I. for another six months. The appellant is aggrieved by the

judgment of conviction and order of sentence imposed against him.

Hence, he has filed the present appeal.

6. Mr. B.P. Pradhan, learned counsel for the appellant vehemently

argued the case on merits and submitted that this is a fit case for acquittal

because ample evidence has come on record to show that the appellant

was also injured in the incident. From the evidence it could be easily

inferred that the informant with the other villagers were the aggressors.

Therefore, the appellant so as to save him from the attack made by the

entire villagers including the P.Ws.1 and 2 has entered into a quarrel

with the villagers and in the said tussle the injury to P.W.1 has caused

besides the injury caused to him. He has read out the testimony of P.W.5,

the doctor who has stated that "I found some injuries on Daka Hemram,

which was caused by hard and blunt weapon. There was lacerated

wound at the left side of the scalp and it was stitched". Therefore,

convicting the appellant for the offence under Section 326 IPC without

appreciating the stand taken by the appellant in his defence which could

be derived from the evidence of P.Ws.1 and 2, is not sustainable. He has

also stated that in the statement of the accused recorded under Section

313 Pr.P.C. a specific stand has been taken by the appellant which he

could successfully proved through the defence evidence, however the

trial court has blissfully ignored the defence plea.

7. I have carefully gone through the judgment of the trial court. I am

completely in disagreement with the submission made by Mr. Pradhan,

learned counsel for the appellant that the learned trial court has not taken

into account the defence plea at all. Paragraph-8 of the impugned

judgment would reveal that the trial court has very meticulously dealt

with all the defence plea raised by the appellant. For convenience of

ready reference, para-8 of the judgment is reproduced below:-

"8. Coming to the defence case, it is found that the defence has examined two witnesses who deposed that some boys of the Basti were gambling on the date of occurrence. Accused denied them. P.W.1 came and protested. P.W.1 and some other persons assaulted the accused. So the accused tried to ran away. P.W.1 and others chased the accused with bow and arrow. While chasing P.W.1 fell down on the road and the arrow which he was holding pierced on his chest. The defence has not suggested this fact to any of the witness of the prosecution. No question has been asked to P.Ws.1 and 2 that P.W.1 sustained the injury on his chest by the arrow which he was holding and by which he was trying to shot at the accused. When the defence did not reveal this plea in the

cross examination of the prosecution witnesses and asked about it to the prosecution witnesses, it can be held that the defence plea is not true and it is after thought. However, on a careful consideration of the evidence of D.W.1 and 2 it is found that their evidence is not also trustworthy because D.W.1 in his cross examination stated that when D.W.1 fell down on the ground while chasing the accused to assault the arrow pierced on his chest. He intimated the police over phone. Getting his phone message police came to the spot. But in his cross examination he categorically admitted that he has not stated anything before the police about the occurrence. He could not able to speak telephone number from which he booked the call to the police. D.W.2 in his cross examination also stated that he has not stated anything about the occurrence to police. Though he saw that P.W.1 sustained injury due to piercing of arrow on his chest, he did not try to remove him to hospital. It is admitted by him that he is staying with P.W.1 in one Basti but he has not gone to hospital to see P.W.1 though he has no enmity with P.W.1. This conduct of the D.W.1 and 2 does not repose confidence to held that they come to the court with clean hand and to depose about a true fact.

8. I have also gone through the testimony of all the witnesses in very

detail. It is found that the version of P.Ws.1 and 2 are consistent. Both

the witnesses have categorically stated that "the accused went to his

house brought a bow and arrow and short the arrow at Rabi (P.W.1) and

the arrow hit the chest of P.W.1, who fell down. P.W.1 was removed to

Capital Hospital and on the advice of the doctor of Capital Hospital,

P.W.1 was removed to S.C.B. Medical College". This version of P.Ws. 1

and 2 stands corroborated with the testimony of the doctor of Capital

Hospital, i.e., P.W.5 and the doctor at SCB Medical College and

Hospital. P.W.6 in his testimony has stated that "I found an arrow was

pearcing through second intercostal space left. On ex-ray arrow was

seen on pneumothorax left. The arrow was moving with heart bit. Wound

was bleeding. After arranging blood I operated on 4.7.2003. The arrow

was penetrating through second intercostal space and was directed

towards left. A chesty was put on the left side before Anaesthesia. Chest

was exploed through left 3rd. I.C.S. It had peaced through left long. The

lung was repaied. The arrow was removed cutting the second

costochondral junction. Arrow was handed over to the O.T. sister in

charge (Stuti Sahoo). The injury was grievous in nature. Ext.4 is may

report with my signature."

9. By appreciating the afore reproduced evidence on record, the trial

court has arrived at the following findings:-

"P.Ws.5 and 6 are two doctors. P.W.5 is the doctor of Capital Hospital. She deposed that when P.W.1 was brought to Capital Hospital she found the arrow entered into the left

side chest of P.W.1. She did not remove the arrow from the chest of P.W.1 as it requires surgery. She referred the patient to Surgery Specialist. P.W.1 was removed to S.C.B. Medical College Hospital. P.W.6 is the doctor of S.C.B. Medical College Hospital who stated that P.W.1 was brought to him when the arrow was in his chest. The arrow was moving with heart bit. So he arranged for the operation and through chest operation he could able to brought out the arrow from the chest of P.W.1 through surgical operation. The lung was repaired. He gave the arrow to the Nurse present in the operation theatre. P.W.1 was survived. His opinion is that the injury was grievous in nature. These two doctors also cross examined by the defence but nothing has been brought out to arrive at a conclusion that the injury was not grievous in nature and in all human probability would not have caused death. P.W.7 is the police officer who investigated the case. During investigation he seized the arrow from the nurse who attended the operation of P.W.1 in S.C.B. Medical College, Hospital. This witness stated that during investigation he found the accused has intentionally shot the arrow at Rabi Laguri. So he submitted charge sheet. This witness also cross examined at length but from the cross examination the defence could not able to bring out that there is lacuna in the investigation.

10. The findings recorded by the Ld. Trial Court as reproduced above

is a culmination of right appreciation of evidence. Therefore, I am in

complete agreement with the judgment of the trial court. Hence, the

conviction recorded by the learned trial court against the appellant for

the offence under Section 326 IPC sustains. At this stage, Mr. Pradhan,

learned counsel for the appellant submits that the appellant out of the

total sentence of three years awarded to him has already undergone six

months one day custody. He submits that at the time of incident in the

year 2003, the appellant was young and he was 26 years of age. The

appeal has been pending since 2004. The appellant is now 48 years of

age and he has already settled in his life with his family and he has no

criminal antecedents. Therefore, sending the appellant to undergo the

remaining period of custody would be harsh and will have a detrimental

effect on the entire family. Therefore, Mr. Pradhan prays that the

appellant may be given the benefit of Probation of Offenders Act.

11. Considering all the features of the case, I could have dealt with the

appellant under the Probation of Offenders Act, it has however been

brought to the notice by Mr. Pradhan that the appellant has already

suffered an imprisonment pursuant to the sentence imposed for a period

of six months and one day. This aspect of the matter is not disputed by

learned counsel for the State. When the appellant has already suffered an

imprisonment of six months one day, injustice would be compounded if I

would now grant him the treatment under the Probation of Offenders

Act. Therefore, while maintaining the conviction, I reduce the sentence

to the period already undergone by the appellant. However, in so far as

the fine of Rs.500/- imposed by the trial court, I feel it appropriate to

increase the fine amount to Rs.5000/- (rupees five thousand), in default

of making to deposit the fine amount, the appellant shall undergo a

period of one month R.I. The fine amount to be deposited by the

appellant shall be disbursed to the injured (P.W.1) in accordance with

Section 357 Cr.P.C.

12. With the aforesaid modification, the CRA is partly allowed.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack Dated the 18th July, 2025/Ashok

Signed by: ASHOK KUMAR JAGADEB MOHAPATRA

Location: High Court of Orissa