Bapi @ Santosh Kumar Bedant vs State Of Orissa

S.S. Mishra, J. The instant appeals arise out of the same cause of action and, accordingly, are being heard and disposed of analogously.

Both the appeals are directed against the judgment of conviction and order of sentence dated 09.05.2022 passed by the learned Assistant Sessions Judge (Women’s Court), Jagatsinghpur, in C.T. Case No. 62 of 2018 (Comp.282 of 2018), whereby the appellants have been convicted for the offences punishable under Sections 307/326/34 of the IPC and sentenced to undergo rigorous imprisonment for a period of 9 years and to pay a fine of Rs.10,000/- each, in default whereof to undergo further rigorous imprisonment for a period of 6 months for the offence under Section 307/34 of the IPC, and to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.5,000/- each, in default whereof to undergo further rigorous imprisonment for a period of 3 months for the offence under Section 326/34 of the IPC. The learned trial Court has directed that the substantive sentences shall run consecutively, with the sentence imposed under Section 307/34 of the IPC to run first and, upon its expiration, the sentence imposed under Section 326/34 of the IPC to follow.

The prosecution case, in brief, is that on 18.04.2009 at about 7.15 P.M., the victim, (name withheld), daughter of the informant, Smt. Kabita Roul, was returning from her aunt’s house along with her cousin brother. When they reached near the telephone exchange situated near the rented house of the then Ex-Sarpanch of Kanakpur G.P., Sri Baradaprasana Sahu, the accused persons, namely, Santosh Kumar Bedanta and another person, allegedly hurled acid at the victim and fled from the spot on a numberless motorcycle. Hearing the commotion, local people gathered at the spot and brought the victim to her house. She was thereafter shifted to the Jagatsinghpur Medical and, subsequently, to S.C.B. Medical College and Hospital, Cuttack, where she was undergoing treatment in Surgical Ward, Cabin No.3. On 04.05.2009, the informant lodged a written report at Kanakpur Outpost, on the basis of which Tirtol P.S. Case No.79 of 2009 was registered under Sections 328/307/326/506/34 of the IPC.

During investigation, the Investigating Officer, Pandav Ch. Behera, examined the informant and other witnesses, recorded their statements under Section 161 of the Cr.P.C., visited the spot, prepared the spot map and issued a medical requisition in favour of the victim to the Superintendent, S.C.B. Medical College and Hospital, Cuttack. However, he subsequently submitted a final report stating that the name and address of the accused persons were false and that the case would be reopened if any clue was received in future. Thereafter, on 04.09.2017, the case was reopened on the basis of information received from the victim pursuant to the order of the learned Court. The investigation was thereafter taken up by I.O. Balaram Nayak, who revisited the spot, examined the witnesses, issued a fresh injury requisition in favour of the victim and arrested the accused persons, namely, Santosh Kumar Bedanta and Anil Dalsinghray. Upon completion of investigation, charge-sheet was submitted against them for the offences punishable under Sections 328/326-A/307/506/34 of the IPC. Subsequently, charges were framed against them on 06.08.2018, by the learned CJM-cum-ASJ, Jagatsinghpur for the aforesaid offences U/s.328/326/307/506/34 of IPC. The accused persons denied the charges and claimed to be tried. As a result of which, they were committed to the Court of Sessions for Trial.

In order to substantiate its case, the prosecution examined eighteen witnesses in all. P.W.3, is the victim; P.W.6, Kabita Roul, is the mother of the victim and also the informant; and P.W.7, Bhaskar Das, cousin brother of the victim who is also an eyewitness to the occurrence. P.W.18 is the Investigating Officer, whereas P.W.16, Dr. Srikanta Panda, is the medical officer who examined the victim. P.Ws.4, 9, 11 and 13 are the seizure witnesses. The remaining witnesses are post-occurrence witnesses. The prosecution also relied upon the documentary and material evidence brought on record. The accused persons, however, did not adduce any evidence in their defence.

The present case involves an allegation of violence against a woman, and the learned trial Court, in arriving at its conclusion, has placed considerable reliance upon the evidence of the victim, the eyewitness, who is stated to be the cousin brother of the victim, and the other prosecution witnesses. In order to properly appreciate the findings recorded by the learned trial Court and before examining the impugned judgment, it would be apposite to revisit and carefully analyse the evidence of the victim and the eyewitness to the occurrence.

The relevant part of the evidence of the P.W.3 is reproduced hereunder for ready reference:

The aforesaid testimony of P.W.3 is relevant for the purpose of appreciating the manner in which the occurrence took place and the injuries sustained by her. Though she was extensively examined and cross-examined, she remained consistent on the material particulars of the occurrence, particularly with regard to the identity of the assailants and the manner in which the acid was allegedly poured upon her. During her further examination, she also stated that, “On account of acid attack I have sustained 46% burn injury and 86% disability.”

The evidence of P.W.7, Bhaskar Das, who is stated to have accompanied the victim at the time of occurrence and to have witnessed the incident, also assumes significance. His testimony contains a detailed account of the occurrence and materially corroborates the version of P.W.3 with regard to the presence of the accused persons at the spot and the manner in which the occurrence took place. It would, therefore, be apposite to refer to the relevant portion of his evidence. In his evidence, he stated thus:

By relying principally upon the evidence of the prosecutrix (P.W.3), the eyewitness (P.W.7), the informant (P.W.6) and the other prosecution witnesses, the learned trial Court proceeded to assess the prosecution case. The learned trial Court attached considerable significance to the fact that P.W.3 herself was the injured victim of the occurrence and had withstood extensive cross-examination without any material contradiction or infirmity being brought out in her testimony. The learned trial Court also took note of the fact that P.W.3 had identified the accused persons as the persons responsible for the occurrence. While dealing with the evidentiary value of the testimony of an injured witness, the learned trial Court relied upon the decisions of the Hon’ble Supreme Court in State of Madhya Pradesh v. Man Singh and others^{11.2003 (3) Crimes 380 (SC)} and Bijay Sankar Sindhe v. State of Maharashtra^{22.2008 (1) Crimes 216 (SC)}, and observed that the testimony of an injured witness ordinarily carries greater evidentiary weight and is not to be discarded lightly in the absence of compelling reasons.

The learned trial Court further found corroboration to the testimony of P.W.3 in the evidence of P.W.6, the mother of the victim, who stated that accused Santosh used to disturb the victim while she was proceeding to college and had also telephoned her and expressed his desire to marry her, which proposal had been declined by the victim and her family members. According to the learned trial Court, this circumstance furnished a possible motive for the occurrence and lent assurance to the version of P.W.3 regarding the conduct of accused Santosh immediately preceding the incident.

The learned trial Court also considered the absence of any suggestion in cross-examination as to why the victim would falsely implicate the accused persons in an incident of such a serious nature. It observed that no material had been brought on record to suggest any reason for P.W.3 to falsely implicate the appellants or to shield the actual perpetrators of the crime. On the question of the applicability of Section 307 of the IPC, the learned trial Court proceeded on the premise that the consequence of pouring a large quantity of corrosive substance upon the head of the victim was such that the accused must be attributed with the requisite knowledge or intention that such an act was likely to cause death. On the cumulative assessment of the evidence, the learned trial Court accordingly concluded that the prosecution had established the charge under Section 307 of the IPC.

In a similar manner, upon appreciation of the ocular and medical evidence, the learned trial Court also held the appellants guilty of the offence punishable under Section 326 read with Section 34 of the IPC. However, it did not find the prosecution case sufficient to establish the charges under Sections 328 and 506 read with Section 34 of the IPC. Thus, while recording a finding of guilt in respect of the offences under Sections 307/326/34 of the IPC, the learned trial Court acquitted the appellants of the offences under Sections 328/506/34 of the IPC. The relevant findings recorded by the learned trial Court are extracted hereunder:

It would thus appear from the aforesaid findings that the learned trial Court principally founded the conviction upon the testimony of the injured victim, P.W.3, which it found to be trustworthy and consistent, and upon the corroborative evidence of the other prosecution witnesses. The learned trial Court also relied upon the evidence regarding the alleged prior conduct of accused Santosh towards the victim as furnishing the background and motive for the occurrence. In addition, the evidence of P.W.7 assumes significance as an eyewitness account which, if found reliable, provides material corroboration to the version of P.W.3 regarding the presence of the accused persons and the manner of occurrence.

It is, however, relevant to notice that the learned trial Court was conscious of the distinction between the charges framed against the appellants and did not accept the prosecution case in its entirety. While it found the evidence sufficient to establish the offences under Sections 307/326/34 of the IPC, it extended the benefit of doubt to the appellants in respect of the offences under Sections 328/506/34 of the IPC. The conclusion of the learned trial Court was thus based upon its assessment of the evidence on a charge-wise basis. The ultimate conclusion recorded by the learned trial Court reads as follows:

The aforesaid conclusion of the learned trial Court has been assailed in the present appeals. Aggrieved by the judgment of conviction and order of sentence dated 09.05.2022, whereby the appellants have been convicted for the offences punishable under Sections 307/326/34 of the IPC and sentenced as stated hereinbefore, the appellants have preferred the present appeals. The principal question that, therefore, arises for consideration is whether the evidence led by the prosecution, particularly the testimony of P.W.3, the injured victim, and P.W.7, the alleged eyewitness to the occurrence, inspires confidence and is sufficient to sustain the conviction of the appellants for the offences under Sections 307/326/34 of the IPC.

Having given anxious consideration to the evidence on record, the findings recorded by the learned trial Court and the submissions advanced on behalf of the appellants, this court find no compelling reason to take a different view of the matter. The evidence of P.W.3, the injured victim, is of considerable significance. She has given a clear and consistent account of the occurrence and has specifically attributed the act of pouring acid upon her head to appellant Santosh. Her testimony further discloses the circumstances immediately preceding the occurrence, including the demand made by Santosh that she should marry him and the threat accompanying such demand. The fact that P.W.3 herself sustained extensive and serious injuries in the occurrence lends substantial assurance to her presence and version. Her evidence has remained substantially intact despite extensive cross-examination and no material contradiction or omission has been brought to notice which would render her testimony unworthy of reliance.

The testimony of P.W.3 receives material corroboration from the evidence of P.W.7, Bhaskar Das, who was admittedly accompanying the victim at the relevant time. P.W.7 has furnished a direct account of the occurrence and has specifically stated that the appellants came on a motorcycle, approached the victim, and that Santosh, after asking the victim to marry him, took out a bottle from his bag and poured acid upon her. He has also described the immediate physical condition of the victim after the occurrence and the conduct of the accused persons in fleeing from the spot. The presence of P.W.7 at the place of occurrence is natural, as he was accompanying the victim while returning from their aunt's house. There is, therefore, no apparent reason to discard his testimony merely because he happens to be related to the victim. Relationship by itself is not a ground to reject otherwise cogent and trustworthy evidence, particularly when the witness is a natural eyewitness and his testimony finds substantial corroboration from the evidence of the injured victim.

The evidence of P.W.6, the mother of the victim, also assumes relevance. Her testimony regarding the conduct of appellant Santosh towards the victim prior to the occurrence including his alleged proposal of marriage and the victim's refusal thereof, furnishes a background to the occurrence. More importantly, the immediate disclosure made by the injured victim to her mother after she was brought home is consistent with the prosecution version. Such contemporaneous disclosure assumes significance in appreciating the credibility of the victim's testimony.

The nature and gravity of the injuries sustained by P.W.3 also cannot be lost sight of while appreciating the ocular evidence. The evidence on record indicates that the victim sustained extensive injuries to her face, scalp, ear, eyes and other parts of her body and underwent prolonged treatment. Her evidence that her left ear was destroyed, her facial skin and other parts of the body were severely scarred and that she suffered serious damage to her eyes presents a compelling account of the consequences of the occurrence. The medical evidence and the subsequent treatment undergone by her lend assurance to the core of the prosecution case that she was subjected to a serious acid attack. The injuries are wholly consistent with the manner of occurrence spoken to by P.W.3 and P.W.7.

This Court also find no substance in the submission that the appellants have been falsely implicated. No plausible reason has been brought on record as to why P.W.3, who herself suffered such serious and permanent consequences, would falsely implicate the appellants while sparing the actual assailants. Equally, no convincing reason has been suggested for P.W.7, a natural eyewitness to the occurrence, to falsely support the version of P.W.3. The absence of any credible motive for false implication assumes significance in the present case. The learned trial Court has rightly assessed the evidence in its entirety rather than relying upon any isolated circumstance.

The learned trial Court has also rightly distinguished the charges which stood proved from those which were not established by the prosecution. While finding sufficient evidence to sustain the charges under Sections 307/326/34 of the IPC, the learned trial Court acquitted the appellants of the charges under Sections 328/506/34 of the IPC. Such an approach demonstrates that the learned trial Court did not accept the prosecution case mechanically or in its entirety, but scrutinized the evidence with reference to the individual charges. The finding of guilt under Sections 307/326/34 of the IPC is consequently based upon a cumulative appreciation of the ocular, medical and surrounding evidence.

So far as the offence under Section 307 of the IPC is concerned, the act attributed to the appellants, particularly the pouring of acid upon the head and face of the victim, coupled with the nature and extent of the injuries caused to her, clearly demonstrates the seriousness of the assault. The manner in which the corrosive substance was used and the part of the body targeted are circumstances from which the requisite intention or knowledge can legitimately be inferred. The subsequent consequences suffered by the victim further reinforce the gravity of the act. The learned trial Court was, therefore, justified in holding that the prosecution had established the charge under Section 307 read with 34 of the IPC.

The conviction under Section 326 read with Section 34 of the IPC also warrants no interference. The evidence establishes that the appellants acted in furtherance of the common intention emerging from their concerted conduct at the place of occurrence. The presence of appellant Anil as the person riding the motorcycle, the manner in which both the accused persons approached the victim together, and their conduct immediately before and after the occurrence constitute relevant circumstances for drawing the necessary inference regarding their participation in the occurrence. The fact that the actual act of pouring acid is attributed specifically to Santosh does not, in the facts and circumstances of the case, absolve the other appellant of liability when the evidence establishes the common participation of both in the occurrence.

Upon an overall assessment of the evidence, it is found that the learned trial Court has assigned cogent and legally sustainable reasons for recording the conviction. The appreciation of evidence by the learned trial Court does not suffer from any perversity, material misreading of evidence or disregard of any material circumstance. The findings recorded are supported by the testimony of the injured victim, the eyewitness, the informant and the medical and surrounding circumstances. The appellants have failed to demonstrate any material infirmity in the reasoning adopted by the learned trial Court warranting interference by this Court in appellate jurisdiction.

In view of the foregoing discussion, this Court is of the considered opinion that the prosecution has succeeded in establishing the guilt of the appellants beyond reasonable doubt for the offences punishable under Sections 307/326/34 of the IPC.

At this stage, Mr. Zafarulla, learned counsel appearing for the appellants, without entering into the merits of the case, confines his submissions to the question of sentence. It is submitted that the appellants have already undergone more than eight years of incarceration. Learned counsel further contends that the learned trial Court erred in directing the substantive sentences imposed under Sections 307/34 and 326/34 of the IPC to run consecutively, instead of concurrently, particularly when both the offences arise out of the same occurrence and form part of the same transaction. According to learned counsel, directing the sentences to run consecutively has the effect of subjecting the appellants to successive punishment in respect of offences arising from the very same transaction, which is impermissible in the facts and circumstances of the present case. It is, therefore, submitted that, having regard to the period of custody already undergone by the appellants and the fact that the offences arise out of the same transaction, the substantive sentences may be directed to run concurrently. In support of his submission, learned counsel has placed reliance upon a catena of decisions of the Hon’ble Supreme Court.

Learned counsel for the State, Ms. Moharana, on the other hand, opposes the prayer for making the substantive sentences concurrent and submits that, having regard to the nature and gravity of the offences and the sentence imposed by the learned trial Court, no interference is warranted with the direction that the sentences shall run consecutively.

In considering the question as to whether the substantive sentences imposed upon the appellants should run concurrently or consecutively, it would be apposite to refer to the judgment of the Hon’ble Supreme Court in O.M. Cherian v. State of Kerala^{33.(2015) 2 SCC 501}, wherein the Hon’ble Supreme Court, while considering the scope of Section 31 of the Cr.P.C. and the principle governing concurrent sentences, referred to the earlier decisions in V.K. Bansal v. State of Haryana^{44.(2013) 7 SCC 211}, Mohd. Akhtar Hussain v. Collector of Customs^{55.(1988) 4 SCC 183} and Manoj v. State of Haryana^{66.(2014) 2 SCC 153}. In paragraph 16, the Hon’ble Supreme Court observed as follows:

The Hon’ble Supreme Court further referred to the decision in Mohd. Akhtar Hussain (supra) and noticed the principle of the “single transaction rule” in the following terms:

It is, however, equally necessary to bear in mind the subsequent clarification made by the Hon’ble Supreme Court in the same judgment. While considering the effect of Section 31 of the Cr.P.C., the Hon’ble Supreme Court observed:

The position was ultimately authoritatively settled by the Hon’ble Supreme Court in paragraph 21 of the said judgment, which reads as follows:

A conjoint reading of the aforesaid observations makes the legal position clear. The earlier decisions referred to by the Hon’ble Supreme Court recognise that where multiple offences arise out of a single transaction, concurrent running of sentences is a permissible and legitimate course and that the principle of extending such benefit to the prisoner is well recognised. At the same time, paragraph 21 of O.M. Cherian makes it equally clear that such concurrency is not an inflexible or automatic consequence of the offences arising from one transaction. Similar principle was also reiterated in the Judgement of Sunil Kumar v. State of U.P.^{77.(2021) 5 SCC 560}. Section 31 of the Cr.P.C. vests the Court with discretion to determine whether the sentences should run concurrently or consecutively, having regard to the nature of the offences and the attendant aggravating or mitigating circumstances. Thus, the single-transaction principle remains a relevant and important consideration, but it operates as a factor guiding the exercise of judicial discretion rather than as an absolute mandate. The aforesaid principle has also been followed by a Coordinate Bench of this Court in Ramesh Chandra Behera V. State of Orissa^{88.CRLREV No. 305 of 2026} wherein, relying upon the aforesaid principles, the Coordinate Bench exercised its discretion to modify the direction of consecutive sentencing and directed that the substantive sentences imposed upon the accused therein shall run concurrently.

While exercising such discretion in the matter of sentence, the Court is also required to bear in mind the broader philosophy of sentencing. The sentencing process is not confined merely to the punitive aspect of the offence, but also encompasses the principles of proportionality, reformation and rehabilitation. In this context, the observations of the Hon’ble Supreme Court in Mohd. Giasuddin v. State of A.P.^{99.(1977) 3 SCC 287}, speaking through Justice V.R. Krishna Iyer, are apposite. The Hon’ble Supreme Court observed:

The aforesaid observations emphasise the reformative dimension of sentencing and the need to balance the punitive aspect of punishment with the possibility of reformation and rehabilitation of the offender. At the same time, such considerations cannot be viewed in isolation from the nature and gravity of the offence, the impact upon the victim and the attendant circumstances of the case. The discretion vested in the Court under Section 31 of the Cr.P.C. is, therefore, required to be exercised upon a careful balancing of the aggravating and mitigating circumstances.

Tested on the anvil of the aforesaid principles, the present case stands on a somewhat distinct footing. The convictions of the appellants under Sections 307/326/34 of the IPC arise out of the same occurrence and the same transaction. The offences, though distinct in their legal ingredients, arise from the very same act and are founded upon substantially the same set of facts and evidence. At the same time, the devastating consequences suffered by the victim and the seriousness of the offence cannot be overlooked. On the other hand, the appellants have already undergone more than eight years of incarceration. Balancing the nature and gravity of the offence with the aforesaid mitigating circumstances, and keeping in view that both the offences arise from a single transaction, this court is of the considered view that the ends of justice would be met if the substantive sentences are directed to run concurrently.

Accordingly, the judgment of conviction dated 09.05.2022 passed by the learned Assistant Sessions Judge (Women’s Court), Jagatsinghpur, in C.T. Case No. 62 of 2018 (Comp.282 of 2018), convicting the appellants for the offences punishable under Sections 307/326/34 of the IPC, is hereby upheld. The order of sentence is also affirmed, however, subject to the following modifications:

the fine imposed for the offence under Section 307/34 of the IPC is enhanced to Rs.40,000/- each, in default whereof the appellants shall undergo further rigorous imprisonment for a period of one year; and

the fine imposed for the offence under Section 326/34 of the IPC is enhanced to Rs.10,000/- each, in default whereof the appellants shall undergo further rigorous imprisonment for a period of three months.

It is further directed that the substantive sentences imposed under Sections 307/34 and 326/34 of the IPC shall run concurrently instead of consecutively.

The fine amount so realized shall be disbursed to the victim as compensation in accordance with Section 357 of the Cr.P.C.

Accordingly, the CRLAs are dismissed.