Dama @ Damodar Moharana vs State Of Orissa

V. Narasingh, J

Heard learned Amicus Curiae, Mr. Sethi for the Petitioner and learned AGA for the State.

This Criminal Revision has been filed assailing the Judgment dated 12.02.2002 passed by the learned Sessions Judge, Puri in Criminal Appeal No.30 of 1999 (S.T. Case No.58/225 of 1997), thereby affirming the judgment of conviction and sentence dated 28.10.1999 passed by the learned Asst. Sessions Judge-Cum-CJM, Puri arising out of G.R. Case No.864/95 relating to Town P.S. Case No.115/95 qua the Petitioner, whereby he was convicted for commission of offences punishable under Section 326 of IPC and sentenced him to undergo R.I. for a period of 3 years and to pay fine of Rs.5,000/- (Rupees Five Thousand), in default, to undergo R.I. for a period of 1 year and under Sections 323 and 324 of IPC sentenced to undergo R.I. for a period of 6 months on each count with further direction that all the sentences shall run concurrently and the period of U.T.P be set-off.

The case of the prosecution case, in brief, is that on 04.07.1995, at about 7 P.M., the accused-Petitioner Damodar and three others being armed with sword and iron-pipes entered into the house of Dayanidhi Sahu (P.W.1- informant) at Mangalaghat, Nua Sahi of Puri Town and threatened Banamali Sahu (P.W.3), the elder brother of the informant and inflicted one sword blow on him. P.W.3 raised his right hand and thereby suffered injury on his right-palm.

Fakira Mohan Sahu (P.W.4), father of the informant and the informant objected and therefore, each of them were inflicted with sword-blows, causing cut-injury on the left shoulder of the informant and to the left-ankle-joint of P.W.4. They also assaulted Narakhari Sahu (P.W.2) mother of the informant, Somanath Sahu (P.W.5) the younger– brother and also the informant with such iron-pipes, causing different injuries. Due to the arrival of witnesses, the accused persons fled from the scene. As a result, an F.I.R. was lodged. Thereafter, upon completion of investigation charge-sheet was filed under Sections 452/307/324/34 of IPC.

To drive home the charge, the prosecution examined 14 witnesses out of a total of 17 witnesses, of whom P.W.1 is the informant, P.Ws.2 and 4 are the parents of the informant, P.Ws.1 to 4 are the injured victims, P.W.11 is the scribe of the F.I.R, P.W.6 and 9 are formal witnesses to seizure of sword and blood stained cloth, P.Ws.7, 8 and 10 are witnesses to occurrence but they did not support the prosecution claim, P.W.12 is the I.O and P.Ws.13 and 14 are the medical officers who had examined the injured victims.

Several documents were exhibited and marked as Exts.1 to 10/1 on behalf of the prosecution as well as a sword, wooden covering scathe, Ganji and Gamuchha were admitted as M.O.I to IV.

Neither oral nor documentary evidence was adduced on behalf of the defence. The plea of the defence was one of denial and false implication.

On consideration of the materials on record, the Trial Court convicted the Petitioner for the commission of offences under Section 326 of IPC and sentenced him to undergo R.I. for a period of 3 years and to pay fine of Rs.5,000/- (Rupees Five Thousand), in default, to undergo R.I. for a period of 1 year and under Sections 323 and 324 of IPC to undergo R.I. for a period of 6 months on each count with further direction that all the sentences shall run concurrently and the period of U.T.P be set-off.

On appeal being preferred, the Appellate Court affirmed the judgment of conviction and sentence as imposed. Assailing the same, the Petitioner is before this Court.

It is submitted by the Amicus Curiae, Mr. Sethi, that notwithstanding the limited powers of revision, which is no longer res integra. But in the present case, the appreciation of evidence qua the nature of injury calls for interference since the same has a direct bearing on the conviction and consequential sentence imposed.

Learned AGA for the State, per contra, submits that taking into account the nature of evidence adduced by P.W.14, the doctor and that of the injured-P.W.3, there is no scope for this Court to come to a finding that there is any infirmity much less perversity, in the appreciation of evidence on record, so as to warrant interference by this Court in the exercise of revisional jurisdiction.

It is further submitted by the learned AGA for the state that the exercise of revisional jurisdiction in the present case would result in injustice to the cause of the injured.

This Court perused the evidence of P.W.14, the doctor read with the evidence of P.W.3-the injured as well as the injury report, which is exhibited at Ext.7/2.

On going through the same and taking into account the definition of grievous hurt as stated in Section 320 of the IPC which has also been referred to by the Trial Court and the provisions as contained in Sections 324 and 326 of IPC, this Court is persuaded to hold that taking into account the nature of the evidence which has been brought on record, regarding the injury suffered by the injured-P.W.3, it is a fit case where the conviction is liable to be altered to one from Section 326 of IPC to Section 324 of IPC.

Learned AGA for the State, on instruction, submits that save and except the case at hand, the Petitioner does not have any criminal proclivity.

It is stated at the bar that the occurrence took place in the year 1995 and the Petitioner has suffered incarceration for about three months.

Taking into account the conduct of the Petitioner over the years and that nothing has been brought on record by the prosecution to indicate that, in the meanwhile, he has involved himself in the commission of any other offence, this Court is persuaded to hold that directing him to undergo the incarceration already suffered would serve the ends of justice. It is accordingly so directed.

11-A. In the peculiar factual situation of the present case, the fine amount is set aside.

The CRLREV is accordingly disposed of.

In view of the disposal of the CRLREV, all the pending I.A.(s) stand disposed of.