Partly allowed

Dibyasingh Nayak v. State

Orissa HC1 Dec 2021CRLREV/64/2005

Case brief

AI extract

What is this about?

In a criminal revision, the High Court confirmed the petitioner's conviction for offences under Sections 323 and 294 IPC but modified the sentence. The Conviction was upheld, the substantive sentence dismissed as unconditional jail was deemed improper, and a fine was enhanced with a direction to share proceeds between victims.

What did the court decide?

Revision dismissed. Conviction confirmed. Substantive sentence of imprisonment on personal liberty, remitted. Fine enhanced to Rs.3,000 with direction to pay Rs.1,500 each to two prosecution witnesses

Dibyasingh Nayak Vs State — Cheating and Forgery | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLREV No. 64 of 2005

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An application under Section 401 read with Section 397 of the Code of Criminal Procedure challenging the judgment and order dated 06.03.1998 of J.M.F.C., Bhadrak in G.R. Case No.422 of 1993 (Trial Case No.160 of 1997) and the judgment and order dated 24.01.2004 of Adhoc Addl. Sessions Judge, Bhadrak in Criminal Appeal No.14 of 1998.

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Dibyasingh Nayak …. Petitioner
Versus
State of Orissa …. Opp. Party
Advocates appeared in this case through hybrid mode :
For Petitioner : Mr. P. Behera, Advocate
For Opp. Party : Mr. Sibani Shankar Pradhan,
Addl. Govt. Advocate
CORAM:
JUSTICE SAVITRI RATHO

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.………………………………………………………………………

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Date of hearing : 01.12.2021 Date of Judgment : 01.12.2021 ………………………………………………………………………..

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Savitri Ratho, J .

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The petitioner has been convicted vide judgment and order

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dated 06.03.1998 passed by the learned J.M.F.C., Bhadrak in G.R. Case No.422 of 1993 (Trial Case No.160 of 1997) for commission of offences punishable under Section 323/294 of the Indian Penal Code and sentenced to undergo R.I. for a period of six month and to pay a

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CRLREV No. 64 of 2005

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fine of Rs.500/-, in default to undergo R.I. for a period of one month for commission of the offence punishable under Section 323 of the I.P.C. and to undergo R.I. for a period of two months for the offence punishable under Section 294 of the I.P.C. with a direction for the sentences to run consecutively.

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The conviction and sentence has been confirmed by judgment and order dated 24.01.2004 passed by the learned Adhoc Addl. Sessions Judge, Bhadrak in Criminal Appeal No.14 of 1998.

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The case of the prosecution in brief is that on 09.04.1993 at about 7.30 p.m., the petitioner - accused suddenly got excited, abused the informant and others in filthy language and threw away the straw bundles kept in the Verandah for the purpose of thatching the roof. When the informant and others protested, the accused –petitioner brought an acid bottle and threw acid on them causing injuries on the informant and others and he threatened and abused the informant showing a pistol. On the basis of an FIR lodged by P.W.1 Subrata Kumar Naik, Bhadrak (R) P.S. Case No.92 of 1993 was registered by the I.I.C. and the A.S.I. was directed to take up investigation. On completion of investigation, charge sheet was submitted under Sections 341/323/294/506 of the I.P.C. against the petitioner.

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The defence plea was one of complete denial. No witness

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was examined on behalf of the defence.

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CRLREV No. 64 of 2005

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The prosecution examined nine witnesses to prove its case.

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P.W.1 Subrata Kumar Naik is the informant of this case and

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he has deposed that on 09.08.1993 at about 7.30 pm, the occurrence took place in front of his house, the accused-petitioner abused him in obscene language. When he protested, the petitioner threw the “Chhana” (thatching material) kept in his verandah and on his protest, the petitioner became annoyed and brought one acid bottle and threw acid over him and P.W.8.It fell on his chest , right side arm and right side shoulder injuring him and it also fell on his sister P.W.8 who sustained burn injuries on her face on the left side near the eye. The witness showed the injuries on his right side arm and shoulder at the time of giving evidence. He and his sister went to the Police Station to lodge FIR and they were sent by the police for treatment. He has admitted that the accused has filed a GR Case against his father and him. But his evidence has stood the rigors of cross examination.

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P.W.8 Sakuntala Nayak is the sister of P.W.1 who sustained

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injury on the right side of her face, near the eye due to the acid. She has stated in her evidence that at the relevant time, she heard the accused was asking her father to come out using obscene language. He threw the straw kept on their verandah and threatened to rape his mother and sister in the village street, which caused annoyance to her. Thereafter he went to his house and brought acid and threw it which

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CRLREV No. 64 of 2005

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fell on her and her brother , resulting in injuries and discolouration of

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skin of both of them.

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P.W.2 Tapan Kumar Nayak and P.W.3 Chandramani Nayak

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co-villagers of the injured have corroborated their evidence . P.W 2 is also a witness to seizure of straw , grass and earth from the spot. The evidence of P.W.3 had been challenged by the defence on the ground that he could not have seen the occurrence from his verandah as it was

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a dark night on the occasion of “Krushnapakhya”, but it has been

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turned down by the learned trial Court and he has been believed .

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P.W.4 Prahallad Nayak the uncle of Subrat (P.W.1) and

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Sakuntala (P.W.8) and P.W.5 Chintamani Nayak is the father of the injured P.Ws.1 and 8. Both have corroborated the evidence of the two injured . P.W. 5 has stated that he was present on his front verandah when the incident took place and the petitioner abused in obscene language and threw the straw on his verandah and threw the acid causing injuries on P.Ws.1 and 8.

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P.W.6 Bairiganjan Nayak, whose house is 10 cubits away

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from the spot corroborated the prosecution case . Nothing has been elicited by the defence to disbelieve his evidence .

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P.W.7 Dr. Sashi Naryan Dash is the doctor who was the

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Orthopedic Specialist who examined P.Ws.1 and 8 on the relevant day

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at 10.30 p.m. and found discoloration of skin superficial over right side

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CRLREV No. 64 of 2005

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arm, right side shoulder region and right upper chest on the person of

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P.W.1 and acid burn with blackish discoloration superficial over left side face and left eye brow region of P.W.8. He opined that the injuries are simple and might have caused by acid within six hours of his examination . He has proved the injury reports – Ext 5 and Ext 4.In cross examination he has admitted that he has not stated the size of the injuries in the reports and he has also stated that the said injuries can also be caused by self while throwing acid on others .

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P.W.9 Rabindranath Das is the Investigating Officer who examined the witnesses , seized some straw and grassy soil on which acid had fallen vide seizure list Ext.2, issued requisition for examination of P.Ws. 1 and 8 and after receipt of the injury reports and completion of investigation , submitted charge sheet .

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The prosecution exhibited six documents. Ext.1 is the F.I.R., Exts.2 and 3 are the seizure lists, Ext.4 is the injury report of P.W.8

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Sakuntala Nayak, Ext.5 is the injury report of P.W.1 Subrata Kumar Nayak and Ext.6 is the formal F.I.R.

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The learned trial court after analysing the oral and documentary evidence came to the conclusion that the prosecution has not been able to establish commission of offences punishable under Sections 341 and 506 of IPC against the accused- petitioner and acquitted him from the said charges, but held him to be guilty of

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CRLREV No. 64 of 2005

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commission of offences punishable under Section 323 IPC and Section 294 IPC and sentenced him as aforesaid. The conviction and sentence having been confirmed by the Court of Sessions , the accusedpetitioner has filed this Criminal Revision challenging both the judgements.

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Mr. Behera, learned counsel for the petitioner submits that a case of false implication cannot be ruled out as there is a counter case (G.R. No.425 of 1993) pending against the P.W.1 and P.W.5. He further submits that P.Ws.1 and 8 along with P.Ws.2, 4 and 5 are related witnesses belonging to one family. Their evidence should have rejected on account of prior animosity and as they are interested witnesses and related to P.W.1 and 8. The evidence of P.W.3 should

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have been disbelieved as it was dark night and his house was at a considerable distance from that of P.W.5. The prosecution case is suspicious as P.W.3 who is a co-villager and independent witness did not support the prosecution version. He further states that materials objects seized by the I.O. were neither produced nor exhibited in the Courts below and the sample of hay-stack and contents of the bottle seized were not sent for chemical examination . On account of all this lacuna , the case of the prosecution should have been disbelieved. He also submits that in case the conviction of the petitioner is confirmed the sentence should be modified to the period undergone as more than

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CRLREV No. 64 of 2005

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twenty years have elapsed in the meantime and the petitioner has all

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along remained on bail during trial, pendency of appeal and has been granted bail when the Criminal Revision was admitted by this Court on 16.02.2005.

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Mr. Sibani Shankar Pradhan, learned Addl. Govt. Advocate

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has supported the prosecution case and stated that nothing has been brought out by the defence to disbelieve P.Ws.1 and 8 whose evidence has been corroborated by P.Ws.2, 3, 4, 6 and by the doctor P.W.8 for

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which no interference is warranted in the conviction of the accused – petitioner . When two Courts have arrived at concurrent finding of guilt , in the absence of any compelling reason , this Court should not interfere with the judgments .

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After careful perusal of the judgements of the learned Courts

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which have been challenged in this Criminal Revision , I do not find any infirmity in them so as to warrant any interference in the conviction of the accused-petitioner.

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The evidence of P.Ws.1 and 8 , the injured finds ample corroboration from the evidence of P.W.2 , P.W.3 , P.W.4 , P.W.5 and P.W.6.

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The ocular evidence is corroborated by the medical evidence . Perusal of the evidence of P.W.7, the doctor who examined the two injured persons establishes that the injuries on P.W.1 and P.W. 8 could

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CRLREV No. 64 of 2005

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have been caused by acid. Merely because P.W 7 has stated in cross examination that the said injuries can also be caused by self while throwing acid on others is of no help to the prosecution as there is no evidence that the injured or witnesses were throwing acid on others .

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There is no reason to disbelieve the evidence of P.W.2, P.W.4 and P.W.5 only because they are related to the injured, as there is no reason why relatives of the injured would allow the person who has caused the injury to go scot free and implicate an innocent person.

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Pendency of a GR case against P.W.1 and P.W.5, it is not sufficient to disbelieve them as enmity is a double edged weapon for which their evidence has to be carefully scanned , but does not have to be rejected. In fact , the learned trial court has scanned the evidence of all the witnesses carefully and acquitted the accused petitioner from the charge under Section 341 and Section 506 I.P.C.

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The conviction of the accused – petitioner under Sections - 323 and 294 IPC is therefore confirmed.

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On verification of the Lower Court Record, it appears that accused has remained in custody for two days during investigation. The incident took place on 09.04.1993 and more than twenty six years have elapsed in the meanwhile. I am therefore of the considered view ,

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that it would not be proper to send the petitioner to jail to serve out the remainder of the substantive sentence. The substantive sentence

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CRLREV No. 64 of 2005

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imposed on the accused petitioner is therefore modified to the period

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undergone and the fine of Rs.500/- imposed for commission of the offence under Section -323 I.P.C is enhanced to Rs.3,000/- (Rupees three thousand only), in default to undergo S.I. for a period of six months. If the fine amount is realized, Rs.1,500/- (Rupees one thousand five hundred only) each shall be paid to P.W.1 Subrata Kumar Naik and to P.W.8 Sakuntala Nayak.

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The Criminal revision is dismissed with the aforesaid modification in the sentence.

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The original records received from the learned courts below be sent back.

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Urgent certified copy of this order be granted on proper application.

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.........................
(Savitri Ratho)
Judge

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Orissa High Court, Cuttack Dated 01.12.2021 / Sukanta

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CRLREV No. 64 of 2005

Dibyasingh Nayak v. State

Case brief

What is this about?

What did the court decide?

Dibyasingh Nayak v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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