Tulu@Niranjan Mohapa Vs State

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THE HIGH COURT OF ORISSA AT CUTTACK

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CRLREV No.634 of 2011

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

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Tulu @ Niranjan Mohapatra ……. Petitioner -VersusState of Orissa ……. Opposite Party

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For the Petitioner : Mr. K.C. Rajguru Mohapatra, Advocate For the Opp. Party : Mr. S.R. Roul, Addl. Standing Counsel

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CORAM:

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THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

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Date of Hearing: 08.04.2024 : Date of Judgment: 15.04.2024

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S.S. Mishra, J. The present Criminal Revision filed under

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Section 401 of Cr.P.C. is directed against the judgment and order dated 02.08.2011 passed by the learned Sessions

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Judge, Nayagarh in Criminal Appeal No.11 of 2009,

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whereby the order of conviction and sentence passed by the

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learned Assistant Sessions Judge, Nayagarh in S.T. Case No.71/437 of 2003 had upheld the conviction U/s. 324 IPC, and modified the sentence.

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2. The petitioner having convicted for offence under Section 307 of the IPC by the learned Assistant Sessions Judge, Nayagarh in S.T. Case No.71/437 of 2003 was sentenced to undergo R.I. for a period of three years and to pay a fine of Rs.10,000/-, in default, to further undergo R.I. for a period of six months.

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3. Being aggrieved with the said judgment and order, the petitioner preferred Criminal Appeal No.11 of 2009 before the learned Sessions Judge, Nayagarh, who after hearing the learned counsel for the parties, modified the order of conviction from Section 307 of the IPC to one under Section 324 of the IPC and reduced the sentence to six months only vide judgment and order dated 02.08.2011. The petitioner

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has now challenged the aforementioned order of conviction and sentence by filing the present Criminal Revision.

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4. The prosecution case in brief is that on 24.08.2002 at 7 A.M. at village-Surukabadi, the petitioner along with other accused persons pelted stones at the house of the informant. They came near the house of the informant (P.W.7), surrounded Prasanna Mohapatra (P.W.10) and assaulted him by means of lathi causing severe injury on his head and rendering him senseless on the spot. The informant tried to rescue Prasanna, but the accused persons also assaulted him by means of lathi. Many persons like Basanta Mohapatra, Brajabandhu Subudi and Gobinda Mohapatra, who were present at the spot, shifted the injured persons to the hospital at Rajsunakhala and on the advice of the Doctor, they shifted the injured persons to S.C.B Medical College & Hospital, Cuttack. It is stated that that the quarrel broke out between the female folks of both

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the parties for the plantation of flower plants in their Bari which led to the aforesaid bloody feud amongst the parties.

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5. On the basis of such allegation, F.I.R. was lodged at Ranapur Police Station, which was registered as Ranapur P.S Case No.103 of 2002 under Sections 341/337/307/34 of IPC. After completion of investigation, charge-sheet was submitted against the accused persons under Sections 341/337/307/34 of IPC and charges were framed against them under those Sections. The petitioner was put to trial.

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6. To bring home the charges, the prosecution examined as many as 10 witnesses and exhibited 6 documents. The plea of defence is that of completely denial. In proof of their plea, defence examined none and exhibited 2 documents.

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7. The learned Assistant Sessions Judge, Nayagarh analyzed the entire evidence on record, found the accused persons not guilty except the petitioner and acquitted them from all charges, but the petitioner was found guilty for

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commission of offence under Section 307 of IPC and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/-, in default, to further undergo rigorous imprisonment for a period of six month.

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8. Against the judgment of conviction and sentence dated 25.02.2009 passed by the learned Assistant Sessions Judge, Nayagarh in S.T. No.71/437 of 2003, the petitioner filed Criminal Appeal No.11 of 2009 before the Court of learned Sessions Judge, Nayagarh.

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9. The learned appellate Court vide its judgment and order dated 02.08.2011 has partly allowed the appeal inter alia stating as under-

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“9. The convict Tulu@Niranjan Mahapatra was aged about 30 years at the relevant time. There is no allegation of proof of previous conviction against him, though there is evidence of prior enmity between the parties. Sec.324 IPC prescribes punishment of imprisonment of either description for a term which may extend to three years or fine or both. Having regard to the age, character, antecedent of the convict, circumstances of commission of offence and gravity of the

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offence, I am not inclined to extend the benefit of the P.O Act in his favour. Considering the degree of culpability, he is sentenced to R.I for six months u/s. 324. 10. In the result, the appeal is allowed in part with modification of the finding of the learned court below. The appellant Tulu @ Niaranajan Mohapatra is acquitted of the charge u/s. 307 IPC, but he is convicted u/s. 324 IPC and sentenced to undergo R.I for six months. He is entitled to set off benefit u/s 428 Cr.P.C. Issue modified warrant accordingly.”

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judgment/order of conviction and sentence passed by the

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Appellate court in the present Criminal Revision.

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11. Heard Mr. K.C. Rajguru Mohapatra, learned counsel

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for the petitioner and Mr. S.R. Roul, learned Additional Standing Counsel appearing for the State at length.

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12. I have gone through the evidence on record and weighed the impugned judgment on the basis of the said evidence.

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13. In the present case, the prosecution had examined ten witnesses. P.Ws.1, 2, 4 & 6 were projected as eye-witnesses to the incident. P.W.7 was the informant of the case whereas P.W.10 is the injured/victim. P.Ws.5 & 9 were the Doctors, who examined the victim.

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14. It is clear from the record that none of the eyewitnesses have supported the prosecution case in unambiguous terms. Therefore, the incident alleged to had taken place on the fateful day has not been proved beyond all reasonable doubt. However, the conviction is recorded against the petitioner on the strength of the testimony of the injured witness, namely, P.W.10 by drawing corroboration from the evidence of the Doctors, namely, P.Ws.5 & 9. P.W.7, the informant has also landed support to the prosecution case. The learned trial Court has evaluated the evidence meticulously. While dealing with the

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evidence of the eye-witnesses, the learned trial Court inter alia observed as under:

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“10. P.W.1 has only stated that he had been to see P.W.10 to the hospital, who had sustained injuries and that police had obtained his signature on a document prepared before him in the hospital marked as Ext.1 P.W.2 has stated that he had been to the hospital to see the injured persons but had not seen the incident. P.W.3 has not whispered a single word about the alleged incident, but has clearly stated that the police had seized one bamboo lathi in his presence under preparation of one seizure list vide Ext.1/2. P.W.4 has stated that he had only heard about the disturbance among the parties. In crossexamination P.W.4 has stated that he is unable to say the names of the persons from whom he had heard about the incident. PW.6 has stated that on hearing hulla on the date and time of the incident he had come to the spot, which was the front side of his house and that coming to that place he had seen the head injury at the head of P.W.10. He has not whispered a single word further, focusing light on the above incident. In cross-examination he has admitted that the injured are his cousin brothers. The above evidence of the above P.Ws. does not depict a clear picture of the alleged incident and is not depict a clear picture of the alleged incident and is not at all inculpatory in nature as against the accused persons . However, they indicate about the same incident on the date and time of the alleged incident, during which P.W.10 had sustained injury. The same may lend assurance to

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the other evidence, cogent, succinct in nature if adduced by the prosecution by examining other material witnesses.”

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15. However, strongly relying upon the testimony of P.W.10, who had stated in his examination that the accused Niranjan had dealt him a blow by means of a lathi at the left side head covering his forehead touched his left eyebrow, as a result of which, he had sustained bleeding injury and after eight days of the said incident, he had regained his senses. The testimony of P.W.10 regarding the injury stands corroborated from the testimony of P.W.5, who inter alia has stated that on police requisition, he had examined P.W.10 on 24.08.2002 at about 9.00 A.M. and had found one lacerated wound of 6 ½” X 1 ½” over his parietal bone which appears to have been caused by a hard and blunt weapon like lathi within six hours of the time of his examination. He had further found bleeding injury from the nose of P.W.10 with vomiting for which he had referred

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the injured to S.C.B. Medical College & Hospital, Cuttack. In S.C.B. Medical College & Hospital, Cuttack, P.W.9, who is another doctor, had examined the injured/P.W.10. Drawing corroboration from the testimony of P.Ws.5 & 9, the evidence of P.W.10 was believed by the learned trial Court. Therefore, the petitioner was convicted for the offence under Section 307 of IPC. While recording the sentence, the learned trial Court has taken into account to mitigate situation regarding a cross case being filed by the petitioner against the injured and sentenced the petitioner to undergo R.I. for three years with fine of Rs.10,000/-.

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16. The petitioner took up the matter to the learned appellate Court. The appellate Court followed the reasoning recorded by the learned trial Court to maintain the conviction and modified the conviction from Section 307 of the IPC to one under Section 324 of the IPC. The appellate Court in Paragraph-7 of its judgment observed as under:

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“7. Admittedly there was prior enmity between the parties. It is also admitted that another case has been filed against the injured persons by the accused persons and in that case Satyabadi Mahapatra was medically examined. Satyabadi Mahapatra has lodged that FIR. The defence has proved the Medical report and FIR of Satyabadi Mahapatra. There might be occurrence involving both the parties, but evidence on record is crystal between female folks of both the parties. There is no evidence on record as to who initiated the quarrel and as to who amongst the parties are the aggressors . The observation of learned Court below does not stand to reason that the accused persons did not take the plea of right of defence. In absence of evidence as to who amongst the parties are aggressors. Both the cases will be tried and judged on its own merit. Otherwise I find no infirmity in the judgment of the Court below holding that accused Niranjan committed the overt act.”

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17. I have analyzed the judgment of both the Courts below. Taking into consideration the fact that the incident happened way back in the year 2002, at that point of time the present petitioner was aged about 30 years, I am of the considered view that although the conviction recorded by the Court below is liable to be confirmed but the sentence awarded by the learned appellate Court needs further

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alteration. Accordingly, by maintaining the conviction recorded by the Court below against the petitioner under Section 324 of the IPC, I modified the sentence and imposed a fine to a fine of Rs.25,000/- (Rupees Twenty Five Thousand), in default, to undergo S.I. for a period of one month. Out of Rs.25,000/-, to be deposited by the petitioner as a fine, Rs.20,000/- (Rupees Twenty Thousand) shall be disbursed to P.W.10/injured Prasanna Mohapatra in accordance with provision under Section 357 of Cr.P.C.

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18. With the aforementioned modification of sentence, the Criminal Revision is partly allowed and accordingly disposed of.

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…………………..

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(S.S. Mishra) Judge

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The High Court of Orissa, Cuttack. Signature Not VerifiedDated the 15^th April, 2024/Amit

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Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CU TTACK Date: 29-Apr-2024 10:05:04

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Tulu@Niranjan Mohapa v. State

Case brief

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Tulu@Niranjan Mohapa v. State

Case brief

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