Partly allowed

Chitaranjan Routray v. State

Orissa HC5 Jul 2021JCRLA/30/2012

Case brief

AI extract

What is this about?

This appeal challenges conviction for multiple IPC offences. The High Court set aside convictions for attempt to murder (Section 307) and creating danger by fire (Sections 436/511) due to doubtful evidence and lack of sustained injury, while upholding convictions for assault and criminal intimidation.

What did the court decide?

Conviction under Sections 307, 436, and 511 IPC set aside; conviction under Sections 451, 323, and 407 IPC upheld.

Chitaranjan Routray Vs State — Domestic Violence | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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JCRLA NO.30 OF 2012

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From the judgment and order dated 29.10.2011 passed by Shri Shantanu Kumar Dash, Ad hoc Additional Sessions Judge, F.T.C., Nayagarh in S.T. No. 24/33 of 2011.

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…. Chittaranjan Routray Appellant -versus…. State of Orissa Respondent

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Appeared in this case by Video Conferencing Mode:
For Appellant Mrs. D. R. Nanda, Amicus Curie.
For Respondent - Mr. Purna Chandra Das, Addl.
Standing Counsel
CORAM:
MR. JUSTICE D.DASH
HEARING & JUDGMENT
5 th July, 2021
D. Dash, J

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The Appellant by presenting this Appeal from inside the jail

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custody has challenged the judgment of conviction and order of sentence dated 29.10.2011 passed by the learned Ad hoc Additional Sessions Judge, FTC, Nayagarh in S.T. Case No. 24/33 of 2011.

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By the above, the Appellant has been convicted and sentenced as under:-

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(i) for commission of offence under section 451 of the Indian Penal Code (for short ‘the IPC’) to Rigorous Imprisonment (‘R.I.’) for a period of six months and

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fine of Rs.500/- in default (i.d.) to R.I. for one month; 323 IPC R.I. for three months; 307 R.I. for five years and fine of Rs.2,000/- i.d. to R.I. for six months; 427 IPC R.I. for six months; 436/511 IPC R.I. for three years and fine of Rs. 1,000/- i.d. to R.I. for three months.

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The Appellant as the sole accused faced the Trial standing

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charged under sections 452/294/506/323/307/427/436/511 IPC.

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Prosecution case runs as under:-

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The Appellant-accused is the husband of the informant namely, Sukanti Pradhan @ Routray who has been examined in the Trial as P.W. 1. Their marriage had taken place 12 years prior to the incident. Sometime after the marriage, P.W. 1 could know the reality that the accused is an antisocial and has the involvement in so many crimes and accordingly had been arrested by police on many occasions. For the above, it became such that there was no peaceful living of P.W. 1 in the house with the accused. Finally, she left him and came with her son to stay with her father. Her period of stay in the father’s house by the time of incident was for about 7 to 8 years. The accused at times used to come to the informant in an intoxicated state and assault her.

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On 28.2.2011 around 11 a.m., the accused came to the house

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where the informant was residing and then he was under the influence of liquor. He abused the informant (P.W.1), her father and other members of

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the family in obscene languages and threatened to kill her and then dragged her the outside of the house. That being protested by her father and brother, they were assaulted. P.W. 1 then being dragged up to a place near the road in front of the house was asked by the accused as to whether she would accompany to his house or not. P.W. 1 had no other option but to refuse. The accused being enraged by that throttled her neck and lifted from the ground. It is said that in that way, he was attempting to kill her. The accused thereafter entered into the house and damaged the household articles and tried to set fire to the house. P.W. 1 having reported the matter at Fategarh Police Station; P.S. Case No. 28 of 2011 was registered and on completion of investigation, charge sheet being finally submitted, the accused came to be tried by the learned Ad hoc Additional Sessions Judge, FTC, Nayagarh.

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Prosecution in order to establish its case has examined in total 11 witnesses whereas the defence has examined none.

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The plea of defence is complete denial.

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The Trial Court on analysis of evidence on record and upon

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their evaluation has found the accused guilty for offence as indicated above and he has been sentenced as aforenoted.

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Learned Amicus Curie on behalf of the Appellant (accused)

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submits that the finding of guilt of offence under section 307 IPC against the accused is not at all sustainable both on facts and law. According to

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him, even if the evidence of P.W. 1 is accepted in toto, it cannot be held to be sufficient to sustain a finding as to the guilt of the accused for the offence under section 307 IPC. It is further argued that in the facts and circumstances of the case the evidence of P.W. 1 is wholly unacceptable; more so when the same does not find corroboration from the evidence of others i.e.oher brother and father in material particulars on which they greatly differ which is irreconcilable. He also argues that learned Trial Court has committed error by accepting the prosecution version as to the happening of the incident, in the manner in which it was said to have taken place and as to the role of the accused therein as deposed to. According to him, the evidence of the prosecution when appear to be doubtful, it has to be held that the prosecution has failed to establish the case beyond the reasonable doubt.

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Mr. P.Ch. Das, Additional Standing Counsel in countering

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the above submits all in favaour of the findings as have been rendered by

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the Trial Court. According to him, the evidence of P.W. 1 is free from

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any blemish and even without any corroboration from any quarter there stands no hurdle for its acceptance as to the happening of the incident and the role played by the accused as stated by her. He further submitted that although no such serious injury has been noticed on the person of the P.W.1 yet it is the ingredients of the offence under section 307 IPC stands

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fulfilled; the finding of the Trial Court as to the guilt of the accused for commission of offence under section 307 IPC is also just and proper;

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In the backdrop of the submission as above, this Court is now called upon the judge sustainability of the finding of the conviction for the offence under sections 451/453/427/436/511 IPC with reference to

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the evidence on record as also taking into account the surrounding circumstances as those emerge from the evidence.

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For the purpose the important evidence is that of P.W. 1. She states that the accused assaulted on her hand and threatened to kill her and then throttled her and in the process lifted her from the ground. P.W. 2 is the brother of P.W. 1. On the above score it is his evidence that the accused caught hold of P.W. 1 dragged her by throttling and then lifted her. P.W. 4 who is the father of P.W. 1 has deposed that the accused came to their house and by threatening P.W. 1 dragged her outside to kill. He then lifted her from the ground. This witness is nowhere stating about the throttling part which is stated by P.Ws. 1 and 2. However, evidence of P.W. 1 as to the throttling is finding support from P.W. 2 and omission on

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the part of P.W.4 to say so cannot be taken to discard the evidence of P.W. 1 on that score in entirety. The question now arises that with such evidence on record whether the finding rendered by the Trial Court holding the accused guilty for offence under section 307 IPC is tenable. The evidence of P.W. 9 who is the Medical Officer and had examined

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P.W. 1 at this juncture need be gone through. He has noticed one bruise of size 1” x 1/4^th ” on the anterior aspect of neck of P.W.1. He has opined the nature of injury to be simple; as might have been caused by blunt weapon. Ext. 3 is the injury report issued by him.

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The Trial Court at paragraph-8 of the judgment having discussed the evidence on record has made reference to some case laws which lays down the position that in order to convict the offender for the offence under section 307 IPC; it is not always essential that the nature of injury must be capable of causing death. The intention can be gathered or deduced from totality of the circumstances and not always with reference to the actual injury caused. Having said so, the Trial Court has found that despite the fact that the nature of injury is simple, on the accepted the evidence on record, a case under section 307 IPC stands established. The view taken by the Trial Court in my considered opinion is not acceptable in the totality of the circumstances surrounding the incident; pre and post the incident being taken into account in their proper perspective. The objective as it appears from the evidence on record coming from thelips of P.Ws. 1, 2 and 4 that it was a move by the accused to somehow take P.W. 1 to his house. He had carried no arm and even at that point of time

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has not attempted to collector any type of weapon to handle. The pressure by throttling is not seen to be with that much of force as to have caused

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any permanent issue in the health of P.W. 1. The external injury on the neck of P.W. 1 is one bruise and it depth is 1/4^th inch.

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For the aforesaid, the conviction under section 307 IPC as

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has been recorded by the Trial Court against the accused thus cannot sustain.

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Coming to the evidence with regard to the other offences, this Court finds that the finding of guilt as recorded by the Trial Court against the accused for commission of offence under sections 451, 323 and 407 are well in order and in consonance with the evidence on record as on those aspects which are free from any blemish.

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In so far as the guilt of the accused for commission of offence under section 436/511 is concerned, this Court finds that the evidence on record are not enough to record such a finding for the discussion as made herein below.

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It is stated by P.W. 1 that the accused at the end by using a

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matchstick attempted to set fire to the house. However, it is not stated that

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he had lighted the matchstick and then either had thrown it inside the house or at some places for fire to engulf in causing destruction. The same is the evidence of P.W. 5. He has slightly improved the version of

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P.W. 1 that the accused was trying to set fire to the house by using match

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stick and throwing it to the thatched roof. The evidence of P.W. 4 is to the extent that the accused attempted to set fire to the house by using match

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stick. No one has said about any damage to the household articles or utensils caused thereby or that fire was spreading in the thatched roof which somehow was saved. P.W. 2 makes an improvement in saying that the accused had lighted the match stick and thrown it to the thatched roof to set fire to that house. Interestingly, it is not stated that either any part of the thatched had been burnt nor it is stated as to how it was saved from

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being burnt and under what circumstances.

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For all these above, prosecution evidence is not found to be

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free from doubt so as to be held sufficient enough to record a finding that the accused is liable for commission of offence under section 436/511

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IPC.

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In the result, the JCRLA is allowed in part and to the extent that the conviction of the accused for offence under section 307 IPC and section 436/511 IPC are set aside and consequently, the orders of sentence on those scores fail.

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The conviction of the accused for commission of offence under sections 451/323/427 IPC being maintained; the orders of sentence on those scores as imposed by the Trial Court are upheld.

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LCR received be sent back forthwith along with a copy of the judgment for carrying out further action as per this judgment and in accordance with law.

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As the restrictions due to resurgence of COVID-19 situation are

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continuing, learned counsel for the parties may utilize a printout of the

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order available in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s Notice No.4587, dated 25^th March, 2020 as modified by Court’s Notice No.4798, dated 15^th April, 2021.

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(D. Dash) Judge

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Orissa High Court, Cuttack Date 5^th day of July 2021/Aswini

Chitaranjan Routray v. State

Case brief

What is this about?

What did the court decide?

Chitaranjan Routray v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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