Jatia Meher Vs State

THE HIGH COURT OF ORISSA AT CUTTACK

CRLREV No.38 of 2011

(In the matter of an application under Section 401 & 397 of the Criminal Procedure Code, 1973)

-----------
Jatiya Meher and another ……. Petitioners
-Versus-
State of Odisha ……. Opp. Party
For the Petitioners : Mr. S. K. Joshi, Advocate
For the Opp. Party : Mr. B. K. Ragada,
Addl. Government Advocate
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

¶5

_________________________________________________________ Date of Hearing: 02.04.2024 :: Date of Judgment: 08.04.2024 _________________________________________________________ S.S. Mishra, J.

¶6

1. The present case relates to an incident happened on 15.08.2001.

¶7

One Mithila Meher, wife of Hari Meher lodged a report at Bangomunda

¶8

Police Station with an allegation that on 15.08.2001 at about 6.00 A.M. while she was sleeping in her house, the Petitioner No.1-Jatiya Meher

¶9

damaged her earthen pot by hurling abuses in obscene languages such as <Dari Ghudaghei=. The Petitioner No.2 also joined the Petitioner No.1 in abusing her. Both the accused persons have physically attacked her by lathi and caused injury to her. The said incident was witnessed by Arjun

¶10

Meher (P.W.2), Charan Meher (P.W.4) and Ghana Tandi (P.W.7). She

¶11

has also stated that this has happened because there had been past enmity amongst themselves. Therefore, Bangomunda P.S. Case No.38 of 2001 was registered and investigation was initiated against the Petitioners. After investigation, charge-sheet was filed against the Petitioners under Sections 341, 323, 294 and 34 of I.P.C. The Petitioners were put to trial.

¶12

2. The prosecution in order to prove its case examined as many as eight witnesses. P.W.1 is the informant, P.W.2, P.W.4 and P.W.5 are the F.I.R. named witnesses, whereas P.W.3 is the husband of the informant

¶13

who is a post occurrence witness and P.W.6 is the doctor who examined the informant.

¶14

3. The learned trial Court by evaluating the entire evidence on record came to the conclusion that the prosecution could not prove the case insofar the offences under Sections 341, 294 and 34 of I.P.C. are

¶15

Page 2 of 11

¶16

concerned. However, opined that the prosecution could prove beyond all reasonable doubt regarding the commission of the offences under Sections 323 and 34 of I.P.C. by both the Petitioners. The learned trial Court accordingly convicted the Petitioners under Sections 323 and 34 of I.P.C. While recording the acquittal in favour of the Petitioners insofar as

¶17

the offences under Sections 341, 294 and 34 of I.P.C. are concerned, the

¶18

learned J.M.F.C., Kantabanji vide its judgment dated 17.02.2010 has inter alia stated as under:-

¶19

<In the present case the evidence of the P.W.I (injured) is consistent with the contents of the F.I.R. and also with the statements given by her before police. Not a single contradiction has been brought out in the cross-examination to her earlier statement before police. Therefore, the injured informant (P.W.1) has categorically narrated the details of the incident happened at the spot. That apart, the eye witness also supported the evidence of the P. W.1 regarding assault given by the accused persons to P.W.1. The evidence of the P.W.1 also finds support from the evidence of the treating Doctor. Nothing substantial has been brought out in the cross-examination to disbelieve or discredit the evidence of the injured. Considering the above evidence on record come I to the conclusion that prosecution has well proved its case u/S. 323/34 I.P.C. against both the accused persons.

¶20

From the F.I.R. it appears that the occurrence started when accused Jatiya broken the earthen pot of the informant. Thereafter, accused Baibasuta came to the spot and abused

¶21

Page 3 of 11

¶22

the informant. At that time informant opposed the accused persons. There is no evidence on record that accused persons voluntarily obstructed the informant so as to prevent her from proceeding in any direction in which informant had a right to proceed. In absence of such evidence, it is held that the accused persons cannot be held liable for committing the offence of wrongful restrain. As such prosecution has failed to establish its case u/S.341/34 I.P.C. against the accused persons.

¶23

In view of my above discussion and finding I come to the conclusion that prosecution has failed to prove its case against the accused persons u/S.294/341/34 I.P.C. and accused persons are acquitted from those offences as per provision u/S.255(1) of Cr.P.C., but prosecution has well proved its case against both the accused persons u/S.323/34 I.P.C. As such, accused persons are found guilty of the offence u/S.323/34 I.P.C. and I convict them there under.=

¶24

4. The learned Court below awarded sentence of six months Rigorous Imprisonment against the Petitioners on account of the conviction under Sections 323 and 34 of I.P.C. While sentencing them, the Court below has also recorded that Under Trial Period (U.T.P) undergone shall be set-off as per the provisions of Section 428 of the Cr.P.C.

¶25

5. The Petitioners being aggrieved by the said conviction and sentence dated 17.02.2010 passed by the learned J.M.F.C., Kantabanji,

¶26

Page 4 of 11

¶27

filed a Criminal Appeal No.3 of 2010 before the learned Additional Sessions Judge, Titilagarh by assailing the order of conviction and sentence.

¶28

6. Vide judgment dated 18.12.2010, the learned Additional Sessions Judge, Titilagarh has rejected the Appeal by uphelding the conviction and sentence order dated 17.02.2010 passed by the learned J.M.F.C.,

¶29

Kantabanji.

¶30

7. The present Petitioners have challenged the judgment dated 18.12.2010 passed by the learned Additional Sessions Judge, Titilagarh

¶31

in Criminal Appeal No.3 of 2010 by filing the present Criminal Revision Petition.

¶32

8. Heard Mr. S. K. Joshi, learned counsel for the Petitioners and Mr. B. K. Ragada, learned Additional Government Advocate for the State.

¶33

9. Perusal of the judgments of the learned J.M.F.C., Kantabanji and

¶34

learned Additional Sessions Judge, Titilagarh would lead to the conclusion that the conviction of the Petitioners under Sections 323 and 34 of I.P.C. is solely based on the evidence of P.W.1, who is the

¶35

informant in the present case. The Courts below have drawn up corroboration with the testimony of P.W.1 from the evidence of P.W.6,

¶36

who is the doctor examined the informant and the testimony of P.W.4,

¶37

Page 5 of 11

¶38

who has deposed that he has only seen P.W.1 bleeding, but not seen who has assaulted her.

¶39

10. P.W.1 in her evidence has reiterated her version as per the narration in the F.I.R. The learned Courts below have believed the testimony of P.W.1 merely drawing corroboration from the doctor’s evidence, who inter alia stated that P.W.1 has received various injuries namely (i) cut injury on the middle of the head about 1= length likely to be caused by hard object like stick, (ii) bruises on the right arm lateral side, simple in nature caused by weapon such as stick, (iii) contusion on right arm 2= above wrist joint, (iv) pattened bruises 10=x 1/2cm on the back at the label of lower angle of scapula. The doctor has also opined that all the injuries are simple in nature. Therefore, the Courts below have concluded that P.W.1 has received injuries and her testimony is corroborating with the F.I.R. as well.

¶40

11. The vital point missed by the Courts below are that in the F.I.R. there were three eye witnesses named, they are Arjun Meher (P.W.2), Charan Meher (P.W.4) and Ghana Tandi (P.W.7). None of the eye witnesses named in the F.I.R. have deposed before the Court supporting prosecution regarding the fact that they have seen the Petitioners assaulting P.W.1. On the contrary, P.W.3, who is the husband of P.W.1

¶41

Page 6 of 11

¶42

and a post occurrence witness to the incident has deposed before the Court that he heard from his wife that both the accused persons abused

¶43

her in filthy language namely <Dari Ghudaghei= and also attempted to commit rape on her. The said statement of P.W.3 is nothing but improvisation. Therefore, the defence stand of the Petitioners that they were falsely implicated in the present case because of the past enmity

¶44

gathers strength from the improvised version of P.W.3. That apart, P.W.1 herself in her testimony has also stated that she was not pulling on

¶45

well with the accused Jatiya Meher and they have previous disputes. It is borne out from the record that the Petitioners and the informant have past enmity. Therefore, the probability of false implication of the Petitioners in the instant case cannot be ruled out, if the evidence of P.W.1 and P.W.3 are conjointly taken into account.

¶46

12. The learned Courts below have recorded an acquittal in favour of

¶47

the Petitioners insofar as the offences under Sections 294, 341 and 34 of I.P.C. are concerned. Both the Courts below have come to the conclusion

¶48

that the prosecution could not prove beyond all reasonable doubt regarding the abuses hurled by the Petitioners to P.W.1. Therefore, recorded an acquittal.

¶49

Page 7 of 11

¶50

13. The presence of the Petitioners at the place of occurrence also creates a doubt on conjoint reading of all the prosecution evidences. One more vital aspect of this matter is that the I.O. has neither seized the weapon of offences nor any other apparatus or articles to draw corroboration with the evidence of either P.W.1 or P.W.3. In absence of

¶51

any recovery, the narrative of prosecution in the mouth of P.W.1 creates

¶52

a serious doubt.

¶53

14. While analyzing the aforementioned evidence on record, the finding of the Appellate Court cannot be lost sight of. The relevant part of the finding of the Appellate Court reads as under:-

¶54

<7. No doubt, it has been elicited during crossexamination of P.W.1 that they had prior dispute with the accused persons. Further, previous cases were pending between them prior to the alleged date of occurrence. The lower court in its judgment has observed that enmity is a double edged weapon and it may be cause of the incident or may be the cause of false implication. But, unless specific evidence has been adduced by the accused persons in this regard, the evidence of the prosecution witnesses cannot be thrown out on the same ground. It is well settled in the case of Akulu Ahir Vrs. Ramdeoram, reported in A.I.R. 1973 Supreme Court-2145 that enmity as usual is a double edged weapon, providing motive both for the offence as well as for false implication. The evidence in such case has to be scrutinized with care. Therefore, in the present case under consideration, the evidence of

¶55

Page 8 of 11

¶56

P.W.1 cannot be totally discarded, but it should be carefully scrutinized before keeping reliance on it. However, the fact of assault on P.W.1 gains support from medical evidence of P.W.6, P.W.2 has also given out in his evidence to have seen the accused persons assaulted the informant (P.W.1). No doubt, P.W.5(Dillip Suna) has not given out in his evidence regarding assault on P.W.1

¶57

by the accused persons. He has testified that while he was going by that way he saw several persons had gathered at the spot and he had not seen the actual occurrence. P.W.7 has given out in his evidence that while he was going with his rickshaw found there was exchange of hot words between Mithila and the accused persons. During cross-examination he has stated that Mithila as telling as to why the accused persons broke the mud pot and the accused persons were scolding in obscene languages to Mithila . P.W.4 has given out in his evidence that hearing shout he ran to the spot and found there was bleeding on the head of Mithila, and that he had not seen who assaulted her. Thus, the fact that Mithila had sustained injury on her head gains corroborationl from the evidence of P.W.4. No doubt, the evidence of P.Ws. 4, 5 and 7 does not reveal the accused persons had assaulted P.W.1. Only by reason that P.Ws.4, 5 and 7 did not support the fact of assault by the accused persons on P.W.1, the evidence of P.Ws.1 and 2 cannot be thrown out for that reason as the evidence of P.W.1 regarding sustaining of injuries on different parts on her body gains corroboration from the medical evidence of P.W.6. The submission of the learned Advocate for the appellants that when the fact of wrongful restrain and abused by the accused persons has been disbelieved by the

¶58

Page 9 of 11

¶59

lower court, the fact of assault by the accused persons should have been disbelieved does not hold good because of the fact that the fact of assault on P.W.I gains independent corroboration from the medical evidence. Moreover, only by reason that when a person has been charged for commission of several offences and the prosecution failed to establish its case against one or two offences due to want of proper evidence by the witnesses; the same would not be a ground to acquit the accused persons in respect of other offences which has been proved by the witnesses. Only by reason that the I.O. did not seize the weapon of offence i.e. lathy or blood stained cloth of the victim, the same would not be a ground to disbelieve the evidence of the injured-victim and others regarding assault on the victim by the accused persons. In view of my aforesaid discussions, I am of the opinion that no wrong or error has been committed by the lower court while finding the accused persons guilty 323/34 I.P.C. and convictions them there under.=

¶60

15. By analyzing the evidence adduced by the prosecution, the Appellate Court returned a finding that the eye witnesses namely P.W.4, P.W.5 and P.W.7 in their testimony have deposed that none of them have

¶61

seen the Petitioners/accused persons assaulting P.W.1. On the face of the said finding, the conviction of the Petitioners for the charge under Section 323 I.P.C. is not sustainable. However, taking into consideration

¶62

the evidence of P.W.1 and drawing corroboration from the evidence of

¶63

Page 10 of 11

¶64

P.W.6, the Appellate Court recorded a conviction against the Petitioners

¶65

for the offences under Sections 323 and 34 I.P.C.

¶66

16. In view of the above, I am of the considered view that the prosecution has miserably failed to prove its case beyond all reasonable doubt against the Petitioners for the offences under Sections 323 and 34

¶67

I.P.C. Hence, the Petitioners are acquitted from the charges of the

¶68

offences under Sections 323 and 34 I.P.C. as well.

¶69

17. Accordingly, the CRLREV is allowed and the judgment and order dated 18.12.2010 passed by the learned Additional Sessions Judge,

¶70

Titilagarh in Criminal Appeal No.3 of 2010 is set aside.

¶71

………………
S.S. Mishra
(Judge)

¶72

The High Court of Orissa, Cuttack. Dated the 8^th April, 2024/ Swarna, Sr. Stenographer

¶73

Signature Not Verified

¶74

Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 09-Apr-2024 13:01:45

¶75

Page 11 of 11

Jatia Meher v. State

Case brief

What is this about?

What did the court decide?

Jatia Meher v. State

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Naresh Chandra Nayak Vs State of Odisha

Narasimhamurty Panigrahi Vs Saroj Kumar Panda

Anjan Kumar Sahu Vs State of Odisha

Sunil Kumar Routray Vs Uttarani Shoe Store

Padmabati Dash Vs Mukundadev Acharya

Sarada Prasad Mishra@Kalia Vs State of Odisha