Orissa High Court
Purna Chandra Hota vs State Of Orissa ..... Opp. Party on 30 May, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 413 of 2006
An application under Section 401 of the Code of Criminal Procedure
challenging the judgment and order dated 06.05.2003 of learned Judicial
Magistrate First Class, Bargarh in G.R. Case No. 722 of 1997 (Trial No.
526 of 2001) and the judgment and order dated 20.06.2006 of learned
Addl. Sessions Judge, Bargarh in Criminal Appeal No. 23 of 2003.
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1. Purna Chandra Hota
2. Ananda Sagar Hota (dead) ..... Petitioners
-versus-
State of Orissa ..... Opp. Party
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For Petitioners : Mr. Kamalakanta Sethi, Adv.
along with Mr. Ansuman Ray, Adv.
on behalf of Mr. D.P. Dhal, Sr. Adv.
For Opp. Party : Ms. S. Mishra, A.S.C.
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CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
30.05.2025
Savitri Ratho, J. This application under Section 401 of the Code of
Criminal Procedure has been filed challenging the judgment and
order dated 20.06.2006 passed in Criminal Appeal No. 23 of 2003
by the learned Addl. Sessions Judge, Bargarh confirming the
conviction of the petitioners under Sections 326/34 of IPC and
sentence to undergo R.I. for one year imposed by judgment dated
06.05.2003 of the learned Judicial Magistrate First Class, Bargarh
in G.R. Case No. 722 of 1997 (Trial No. 526 of 2001).
During pendency of this Criminal Revision, the I.I.C.
Bheden Police Station confirmed that Petitioner No.2 Ananda
Sagar Hota, father of Petitioner No.1 Purna Chandra Hota had died.
So this Criminal Revision abates so far as Petitioner No.2 is
concerned).
PROSECUTION CASE
2. The prosecution allegation in brief is that on 22.12.1997
at about 8.00 a.m., the accused Purna Chandra Hota assaulted the
P.W.2, wife of the P.W.1 the informant by means of a Chapal.
P.W.2 informed this to her husband, P.W.1 when he returned to his
house around 11.00 a.m. When P.W.1 went to the accused and
enquired about the cause of assault, Petitioner No.1 Purna holding
axe and Petitioner No.2 Ananda holding lathi respectively abused
him. Petitioner No.1 Purna dealt an axe blow to the head of P.W.1
and Petitioner No.2 Anand assaulted him with lathi. As a result of
assault, P.W.1 sustained bleeding injury on his head and hand and
fracture on his hand and fell down on the ground. P.W.3 and one
Sankari Suna intervened and rescued P.W.1 from the clutches of
the petitioners. P.W.1 lodged a report before the O.I.C., Bheden
Police Station who registered the P.S. Case No. 97 of 1997 and
directed ASI, L.N. Panda to take up investigation. During course of
investigation the ASI, P.W.5 visited the spot, examined the
witnesses, sent the injured for medical examination, seized the
weapon of offence and received the injury report. After completion
of investigation, he submitted charge sheet on 28.02.1998.
DEFENCE PLEA
3. The defence plea was of complete one of denial and false
implication.
WITNESSES
4. During course of trial, in order to prove its case, the
prosecution examined seven witnesses.
P.W.1 Brajabandhu Hota is the informant and injured.
P.W.2 Debahuti Hota is the wife of informant and eye
witness to the occurrence.
P.W.3 Surubali Suna is the labourer who was engaged in
construction work on that day.
P.W.4 Dr. Gopabandhu Thakur was Asst. Prof. of
Orthopedic Surgery of V.S.S. Medical College and Hospital who
had examined injured-P.W.1.
P.W.5 Netrananda Parida is the investigating officer.
P.W.6 Manbodh Sahu is a cultivator.
P.W.7 Dr. Brajakishore Mohanty is the medical officer
attached to Bheden C.H.C. who examined P.W.1 and issued the
injury report vide Ext.2.
The petitioner no.2 Ananda Sagar Hota examined
himself as D.W.1. As stated earlier, he has died during pendency of
this Revision.
EXHIBITS
5. The prosecution exhibited six documents. Ext.1 is the
FIR, Exts.2 and 6 are the injury reports, Exts.3 and 4 are the
discharge certificates and Ext.5 is the seizure list.
The defence exhibited one document. Ext.A is the
certified copy of the judgment of M.S. 25 of 2001.
JUDGMENT OF THE LEARNED TRIAL COURT
6. After analyzing the evidence of the witnesses on record
and the injury report, the learned trial Court held that the
prosecution had failed to prove the charges against both the
petitioners under Sections 341, 294/34 of the IPC and acquitted
them of the charges. But relying on the evidence of P.W.7, the
doctor, he convicted the petitioners for commission of offences
under Section 326/34 of IPC and sentenced them to undergo R.I.
for one year and declined to extend benefit of the Probation of
Offenders Act to them.
JUDGMENT OF THE LEARNED APPELLATE COURT
7. The learned Appellate Court held that the petitioner
Purna Chandra Hota had caused grievous hurt, so the finding of the
Court below that the petitioners committed acts attracting
culpability under Section 326/34 of IPC is unassailable and
dismissed the appeal.
STATUTORY PROVISIONS
8. Section 319, 320, 323 and 326 of the IPC, which are
relevant for deciding this Criminal Revision are extracted below.
"Section 319. Hurt.--Whoever causes bodily pain,
disease or infirmity to any person is said to cause hurt.
320. Grievous hurt.--The following kinds of hurt only
are designated as "grievous":--
First.--Emasculation.
Secondly.--Permanent privation of the sight of either
eye.
Thirdly.--Permanent privation of the hearing of either
ear.
Fourthly.--Privation of any member or joint.
Fifthly.--Destruction or permanent impairing of the
powers of any member or joint.
Sixthly.--Permanent disfiguration of the head or face.
Seventhly.--Fracture or dislocation of a bone or tooth.
Eighthly.--Any hurt which endangers life or which
causes the sufferer to be during the space twenty days in
severe bodily pain, or unable to follow his ordinary
pursuits"
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 may
extend to one year, or with fine which may extend to one
thousand rupees, or with both.
324. Voluntarily causing hurt by dangerous weapons
or means.--Whoever, except in the case 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 of offence, is likely
to cause death, or by means of fire or any heated
substance, or by means of any poison or any corrosive
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.
326. Voluntarily causing grievous hurt by dangerous
weapons or means-- Whoever, except in the case
provided for by section 335, voluntarily causes grievous
hurt by means of any instrument for shooting, stabbing
or cutting, or any instrument which, used as a weapon of
offence, is likely to cause death, or by means of fire or
any heated substance, or by means of any poison or any
corrosive 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 for life, or with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine."
SUBMISSIONS
9. Mr. Kamalakanta Sethi and Mr. Ansuman Ray, learned
counsel appearing on behalf of the petitioner submit that in absence
of x-ray plate being exhibited, the conviction of the petitioner
under Section 326 of IPC is liable to be set aside. They also submit
that the incident is of the year 2006 and about 18 years have
elapsed since then. So in case the conviction of the petitioner is
maintained, the sentence may be modified to fine only. They have
relied on the decisions of this Court in the case of (i) Brundaban
Behera vs. State of Orissa reported in (2017) 66 OCR 835 and (ii)
State of Chhattisgarh Through District Magistrate vs. Amrikabai
& Others reported in 2024 SCC Online Chh 1839.
10. Ms. S. Mishra, learned Addl. Standing Counsel for the
State relies on the decision of the High Court of Judicature at Patna
in the case of Vyshmuni Dubey & Others vs. State of Bihar in
Criminal Appeal (SJ) No. 282 of 2002 decided on 11th July, 2017.
JUDICIAL PRONOUNCEMENT
11. In the case of Brundaban Behera (supra), this Court had
confirmed the conviction of the accused under Section 326 IPC but
modified the sentence to the period already undergone as many
years had elapsed.
12. In the case of Amrikabai (supra), the Chhattisgarh High
Court confirmed the acquittal of the accused in revision. In the said
case the appellate court found that the x-ray plate had not been
exhibited and seizure of the weapon of offence had not been
proved and had acquitted the accused.
13. In the case of Vyshmuni Dubey (supra), the High Court
of Patna has held that the absence of the injury report and non-
examination the treating doctor, confirmed the conviction of
accused under Section 323 of IPC basing on statement of the
injured.
ANALYSIS AND CONCLUSION
14. Perusal of the deposition of P.W.4 Dr. Gopabandhu
Thakur reveals that he was the Assistant Professor, Orthopedic
Surgery in VSS Medical College and Hospital, Burla on
22.12.1997. He examined the injured Brajabandhu Hota on police
requisition and found the following injuries:
"(a) Lacerated injury size 6 cm x 0.5 cm over left
side scalp on parietal eminence.
(b) Lacerated size ½" x ¼" over postero medial
aspect of left forearm.
(c) Lacerated injury 5 cm x 0.5 cm on dorsal aspect
of right elbow. The injuries are simple and might
have been caused by a blunt weapon.
(d) Compound fracture of left ulna bone and left
forearm which has been opined to be grievous injury
and might have been caused by a sharp weapon by
direct hit."
He has stated that Injury no.4 is not possible by blunt
weapon.
In paragraph 12 of his cross-examination, he has stated
that forearm is normally fractured if a direct blow is given by a
blunt weapon. In this case only one bone i.e. ulna was fractured, so
he opined that it might have been caused by a sharp edged weapon
and injury no. d is not possible by blunt weapon.
15. Allegations against the petitioner no.1 is that he has
assaulted P.W.1 on his head and hands with the axe. The allegation
against petitioner no.2 Ananda Sagar was that he had assaulted the
injured with a lathi. P.W.1 has sustained a lacerated injury on left
side of his scalp on the parietal eminence and lacerated injury over
posterior medial aspect of left forearm and lacerated injury on
dorsal aspect of right elbow. P.W.4 has stated that the injury on left
ulna bone was a fracture which was opined to have been caused by
a sharp weapon by a direct hit. He has stated that a hit by a blunt
weapon would have resulted in fracture of both radius and ulna.
The fracture has been reported by Dr. B.B. Panda., but he has not
been examined. The axe in question has not been seized by the
police. Nor has the x-ray plate indicating the fracture been seized
by the police. The bamboo lathi has however been seized.
16. Section 324 IPC deals with the case of causing hurt by
the use of dangerous weapon and means. Section 326 IPC deals
with the case of causing grievous hurt by the use of dangerous
weapon and means. The instrument must be one which is likely to
cause death. Cutting implements or weapons like spear, dao and
axe are considered to be dangerous weapons. Clause seventhly in
Section 320 of the IPC provides that a fracture or dislocation of a
bone is a grievous injury. In the present case, P.W.1 is stated to
have a suffered a fracture on his fore arm (ulna) and hence the
charge and conviction under Section 326 of IPC. P.W.4 opined that
compound fracture on left ulna bone was caused by direct blow
given by a sharp edged weapon. The ocular evidence indicated that
an axe was being used as a weapon of offence. Other injuries were
lacerated wounds, but the X-ray plate has not been proved to
confirm the fracture. In the absence of the X-ray plate in my
considered view the petitioner cannot be convicted for the offence
under Section 326 of the IPC.
17. P.W 4 the doctor who examined P.W.1 the injured has
described the injuries sustained by P.W.1. Apart from fracture,
other injuries have been sustained by P.W.1. Merely because the
axe has not been seized, that cannot be a ground for disbelieving
P.W.1 and P.W.2 that the Petitioner No.1 Purna Chandra Hota
assaulted P.W.1 with a sword which is a dangerous weapon. This
makes out an offence under Section 324 of IPC against the
petitioner- Purna Chandra Hota.
18. Therefore while setting aside the conviction of the
petitioner under Section 326 IPC, he is convicted under Section
324 of IPC.
19. As far as the sentence is concerned, in view of the fact that
about 27 years have elapsed since the date of occurrence, the
petitioner is sentenced to pay a fine of ₹3,000/-, in default, to
undergo RI for six months for commission of offence under
Section 324 of the IPC. The fine amount shall be deposited within
three months hence and shall be paid to P.W.1 the injured.
20. The Criminal Revision is partly allowed.
21. The trial court records be returned to the learned trial
court alongwith a copy of this judgment forthwith.
...........................
(Savitri Ratho)
Judge
Orissa High Court, Cuttack.
The 30th May, 2025.
S.K. Behera, Senior Stenographer.
Signed by: SUKANTA KUMAR BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2025 20:17:19
