Partly allowed

Fakir Mohan Behera v. State

Orissa HC15 Mar 2023CRA/68/1993

Case brief

AI extract

What is this about?

The High Court of Orissa allowed a convict's appeal against a conviction for attempted murder (Section 307 IPC). The Court reduced the charge to voluntarily causing hurt (Section 323 IPC) due to a lack of evidence proving intention to cause death via vital parts. The appellant was acquitted of further punishment as he had already undergone the sentenced period.

What did the court decide?

Conviction reduced from Section 307 IPC to Section 323 IPC; sentence confined to custody already undergone.

Fakir Mohan Behera Vs State — Murder and Culpable Homicide | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRA NO.68 OF 1993

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(From the judgment and order dated 8^th February, 1993 passed by learned Sessions Judge, Sambalpur in S.T. No.158 of 1989)

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Fakir Moham Behera

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… Appellant

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-versus-
State of Odisha … Respondent
Advocates appeared in the case through hybrid mode:
For Appellant : Mr.Basudev Pujari,
Advocate (Amicus Curiae)
-versus-
For Respondent : Mr.S.K.Mishra,
Addl. Standing Counsel

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CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT 15.03.2023.

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Sashikanta Mishra,J . The Appellant having been convicted for the

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offence under Section 307 of I.P.C. in S.T. Case

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CRA No.68 of 1993 Page 1 of 10

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No.158/1989 was sentenced to undergo Rigorous Imprisonment for three years as per judgment dated 8^th February, 1993 passed by learned Sessions Judge, Sambalpur.

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2. The prosecution case, briefly stated, is that on 21^st March, 1989 at about 12.30 P.M. in village Padhanpali under Katarbaga Police Station in the district of Sambalpur, the wife of Madan Behera (the co-accused) abused the deceased Hari Shankar and injured Bhubaneswar. The father-in-law of the injured Bhubaneswar prevented her and his son-in-law. Thereafter, the accused persons came near the house of the deceased and the injured with accused Madan being armed with a ‘Budia’ and Fakira, with a ‘Katara’.

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At that moment, the deceased, injured and his fatherin-law were coming out of their house to go for bath. Seeing them, Madan Behera dealt a cut blow by means of the Katara near the right arm-pit of Hari Shankar, as a result of which he sustained bleeding injury and fell down. Injured Bhubaneswar Behera being armed

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CRA No.68 of 1993 Page 2 of 10

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with a lathi tried to catch hold of accused Madan and raised shout that Madan had killed his brother. At that time, accused Fakir dealt a cut blow with a Budia near the left arm-pit of Bhubaneswar Behera. Hearing the shouts, the wife of accused Madan left the spot.

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3. On such allegations a written report was lodged by one Jayananda Khamari leading to registration of Katarbaga P.S. Case No.28(9)/1989 under Section 307/34 of I.P.C. During investigation, the case turned to one under Section 302 read with Section 34 and 307 of I.P.C. as Hari Shankar succumbed to his injuries. Upon completion of investigation, charge sheet was submitted under Section 302 of I.P.C. against the coaccused and Section 307 of I.P.C. against the present Appellant.

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4. The defence took the plea of denial.

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5. In order to prove its case, the prosecution examined 21 witnesses of whom, P.W.1 is the Doctor, P.W.2 is the informant and P.W.3 is the injured eye witness.

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CRA No.68 of 1993 Page 3 of 10

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P.W.19 is another Doctor. Besides, prosecution also

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proved 20 documents and 9 material objects. The defence did not adduce any evidence, either oral or documentary.

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6. After appreciating the evidence on record, the Trial Court held that the prosecution has failed to bring home the charge under Section 302/34 I.P.C. However, as regards the charge under Section 307 of I.P.C. the Trial Court held that the evidence proved that accused Fakira had dealt a Katara blow on the person of the injured Bhubaneswar Behera with clear intention and knowledge of committing his murder. As such, the Trial Court convicted him under Section 307 of I.P.C. and sentenced him as stated herein before.

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7. Heard Mr. Basudev Pujari, learned Amicus Curiae and Mr. S.K.Mishra, learned Addl. Standing Counsel for the State.

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8. Assailing the order of conviction and sentence,

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Mr. Pujari would contend that even on the face of the

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CRA No.68 of 1993 Page 4 of 10

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prosecution evidence, the charge under Section 307 of I.P.C. is not made out at all inasmuch as the injuries sustained by the injured are entirely simple in nature besides not being inflicted on the vital part of the body. He further argues that the prosecution has not proved the nature of two other injuries sustained by the injured which leaves a gap in the prosecution case.

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9. Mr. S.K.Mishra, learned Addl. Standing Counsel,

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on the other hand, has supported the findings of the Trial Court. He contends that the evidence is very clear to the effect that as many as 4 injuries were inflicted by the accused by means of a Katara on the injured. Though two of the injuries are simple in nature but in so far as the other two injuries are concerned, the same were suspected to be fractures and therefore, the injuries must be held to be grievous in nature. Further, the very act of the accused in assaulting the injured by means a sharp cutting weapon proves his intention of causing his death.

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CRA No.68 of 1993 Page 5 of 10

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10. The injury report on police requisition, which was proved as Ext.8 shows the following injuries having been sustained by the injured Bhubaneswar Behera;

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“(i) Incised wound (bleeding), 6”X1/2” depth could not be ascertained because of continuous bleeding in left side of chest. Simple injury.

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(ii) Suspected fracture of left clavicle

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(iii) Suspected internal injuries of chest

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(iv) Incised wound 2” x ½”x ½”. Simple injury.”

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11. It is evident that in so far as Injury Nos.1 and 4 are concerned, both are simple in nature. In so far as Injury Nos.2 and 3 are concerned, the opinion has been reserved. P.W.19 is the Doctor, who issued the injury report after examining the injured. In his crossexamination, he has stated that as regards Injury Nos.2 and 3, they were not visible but are suspected to be fractures. There is no evidence to show that the said injuries were conclusively proved to be fracture injuries. That apart, Injury No.1 was inflicted on the left side of the chest whereas Injury No.4 was on the

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CRA No.68 of 1993 Page 6 of 10

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back of the chest medial to the left shoulder joint. In

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his evidence, the injured Bhubaneswar Behera being examined as P.W.3 stated that the accused had dealt a Katara blow on the left side of his chest, as a result of which he fell down on the ground sustaining injuries. Significantly, he speaks of only one katara blow. He does not say how he sustained the other injuries. Obviously, one blow could not have resulted in four injuries. Thus, the source of the other three injuries

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remains shrouded in doubt.

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12. Be that as it may, this Court finds that the injuries were not inflicted on any vital part of the body. Had it been the intention of the accused to do away with the life of the injured, he could have inflicted a blow even at the neck or any other vital part of the body instead of inflicting such blow on the chest and the shoulder. Even otherwise, from the evidence of the informant (P.W.2), it appears that the occurrence took place at the spur of the moment without any premeditation. It is highly relevant to note that the informant (P.W.2)

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CRA No.68 of 1993 Page 7 of 10

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resiled from her earlier statement and turned hostile.

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Thus, the Court has before it only the evidence of P.W.3 as regards the occurrence. P.W.3 does not whisper a word about any such intention on the part of the accused to kill him. The Court below has drawn inference from the evidence to conclusively held that the accused was actuated with the intention of causing death of the injured. Law is well settled that to justify conviction under Section 307 I.P.C., it is not essential that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act forbidding death. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof. Reference may be had in this regard to the decision of the Apex

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Court in the case of Sagayam vs. State of Karnataka (2000)4 SCC 454. Thus, in view of the discussion made herein before, this Court is unable to accept the reasoning adopted by the court below.

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CRA No.68 of 1993 Page 8 of 10

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13. However, fact remains that there is clear evidence regarding inflicting of a blow by the accused by means of a Katara on P.W.3 causing at least two simple injuries as per medical evidence. Therefore, while disagreeing with the finding of the Court below that the offence is one under Section 307 of I.P.C., this Court finds ample evidence to prove the offence under Section 323 of I.P.C. that is, for voluntarily causing hurt. This Court holds accordingly.

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14. As regards the sentence, it is submitted by learned Amicus Curiae that the Petitioner has undergone imprisonment for nearly one and half years during trial. He was about 22 years at the relevant time. Presently, he is aged about 55 years. No further criminal antecedents are reported against him. Therefore, no further punishment should be imposed on him. This Court finds considerable force in such submissions and holds that ends of justice would be served if the sentence is confined to the period of custody already undergone by the accused.

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CRA No.68 of 1993 Page 9 of 10

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15. In the result, the Appeal is allowed in part. The impugned judgment of conviction is modified to the extent that instead of the offence under Section 307 of I.P.C. the accused stands convicted under Section 323 of I.P.C. In so far as the sentence is concerned, the same shall be confined to the period already undergone.

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…………….…….………..
( Sashikanta Mishra)
Judge
Ashok Kumar Behera

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CRA No.68 of 1993 Page 10 of 10

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CRA No.68 of 1993 Page 11 of 10

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CRA No.68 of 1993 Page 12 of 10

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CRA No.68 of 1993 Page 13 of 10

Fakir Mohan Behera v. State

Case brief

What is this about?

What did the court decide?

Fakir Mohan Behera v. State

Case brief

What is this about?

What did the court decide?

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