Radheshyam Sahu vs State Of Odisha

G. Satapathy, J

The appellant before this Court challenges the correctness of Judgment of conviction and order of sentence passed on 26th November, 1993 by the learned Assistant Sessions Judge, Rourkela in Sessions Trial No. 29/6 of 1993 convicting him for offence punishable U/S 307 of IPC and sentencing him to undergo rigorous imprisonment (R.I.) for a period of nine years and to pay a fine of Rs. 500/- in default whereof, to undergo R.I. for a further period of six months, while acquitting him of the charge for offence U/S 294 of IPC and consequently, giving the benefit of set off U/S 428 of Cr.P.C. as against the substantive sentence awarded to him.

The prosecution case in short was that on 29. 06.1993 at about 8 P.M. in the night, the convict-appellant came to the residence of informant P.W.3 Bijay Kumar Das and owing to previous grudge, on account of P.W.3 being cited as a witness by Police with regard to the case relating to possession of Jwakim Sahoo and as charge sheet witness in another case pending against Ram Prasad Sahoo and his brothers, called P.W.3 for a discussion and when P.W.3 came outside of his house, the appellant suddenly became furious and caught hold the neck of P.W.3 and tried to stab him with a Bhujali on his belly, but due to good luck, P.W.3 could manage to save himself, however, appellant again rushed towards him and attempted to dealt a Bhujali blow aiming to the neck of P.W.3, but P.W.3 caught hold the hand of the appellant as a result, the appellant fell down as he was in a inebriated condition. The occurrence was witnessed by Ajay Kumar Biswal and Santosh Kumar Pati who came to save P.W.3 and the appellant fled away from the spot with Bhujali by abusing P.W.3 uttering obscene words by saying “MAAGHIA OKILA AJI BANCHIGALU AUTHARE DEKHIBI”.

The criminal law was ultimately set into motion by the F.I.R. (Ext.1) of P.W.3 before the Officer-in-charge of Jhirpani Outpost on the same day at about 9.30 P.M. and the F.I.R. was registered as Sector-19 P.S. Case No. 95 of 1992 corresponding to G.R. Case No. 1292/1992 paving the way for investigation into the matter. Accordingly, P.W.6 investigated the matter and submitted charge sheet against the appellant resulting in trial in the present case.

In the course of trial, the appellant stood charged for offence U/Ss. 294/307 of IPC and in substantiation its case, the prosecution had examined altogether six witnesses and relied upon the documents under Exts. 1 to 4 and material object M.O.I(Bhujali) as against no evidence whatsoever by the defence.

The plea of the appellant in the course of trial was one of complete denial and false implication. Of the witnesses examined by prosecution P.W.s. 1, 2, 4, and 5 did not support the prosecution case, whereas the informant- P.W.3 only tendered evidence against the appellant, but the learned Trial Court by mainly relying upon the evidence of P.W.3 and P.W.6, the Investigating Officer had found the appellant guilty of the charge for offence U/S 307 of IPC while acquitting him of the charge U/S 294 of IPC and sentenced the appellant to the punishment indicated supra. Being aggrieved with such judgment of conviction and order of sentence, the convict preferred this appeal.

In the course of hearing of the appeal, the appellant being represented by his counsel Mr. H.S. Mishra has filed I.A. No. 02 of 2023 to implead P.W.3 as Respondent No.2 and I.A. No. 01 of 2023 to quash the impugned judgment of conviction and order of sentence, mainly on the ground of amicable settlement between the parties. Similarly, the informant-cum-P.W.3 has filed another I.A. No. 03 of 2023 after entering appearance through the learned counsel Mr. T.K. Nayak to quash the impugned judgment of conviction and order of sentence of the appellant on the ground of amicable settlement between the parties.

This Court, accordingly, heard Mr. H.S. Mishra, learned counsel for the appellant, Mr. T.K. Nayak, learned counsel for the informant and Mr. S.S. Pradhan, learned A.G.A. in the appeal.

Admittedly, the appellant has challenged his conviction for offence U/s. 307 of IPC, which is although non-compoundable, but the conviction there under can be quashed, if the appellant otherwise establishes the same to be an abuse of process of Court or to give effect to any order under Cr.P.C. or to secure the ends of justice. Nevertheless, the conviction U/S. 307 of IPC cannot be quashed merely on the ground of amicable settlement/compromise between the parties. Keeping in view the above position of law, let us examine whether the conviction of appellant for offence U/S. 307 of IPC can stand the scrutiny of evidence or the appellant is liable for any other offence, which can be fittingly quashed on the ground of compromise, of course, such prayer has been made though learned counsel appearing for the informant without any compromise petition of the parties.

Undisputedly, the learned trial Court had found the accused guilty for offence U/S 307 of the IPC by mainly relying upon the sole witness of the victim since none of the independent witnesses had supported the prosecution case, but admittedly there was no injury on the person of the victim-cum-P.W.3 whose evidence transpires that the appellant had tried to stab him on his belly by means of Bhujali (M.O.I) and again attempted to stab him by M.O.I aiming at his neck, but P.W.3 could manage to caught hold the hand of the appellant with which he was holding M.O.I and the appellant fell down. The evidence of P.W.3 further discloses that his neighbour P.W.1 Santosh Kumar Pati and P.W.2- Ajay Kumar Biswal rushed to the spot, but the appellant fled away from the spot with the Bhujali. It is not in dispute that P.W.s. 1 and 2 had not whispered anything about the occurrence nor had they stated anything against the appellant with regard to the occurrence. Similarly, P.Ws. 4 and 5 being seizure witness had categorically stated that nothing was seized in their presence by the Police Officer.

Above being the substratum of evidence available on record, whether it would be safe to convict the appellant for offence U/S 307 of IPC with this much of scanty evidence. The offence of attempt to murder as contemplated U/S 307 of IPC is referable to the intention or knowledge and the circumstance by which if the act of the accused could have caused the death of the victim, the accused would have been guilty of the murder. It is, therefore, very clear that even though the act committed by the accused had not caused the death of a person, but had the accused being successful in accomplishing the act, it would have caused death of the victim is the sole test to bring home the guilt of the accused for the charge of attempt to murder. On close scrutiny of evidence of P.W.3 on the anvil of ingredients of offence U/S 307 of IPC, there is absolutely no evidence against the convict for having requisite intention to kill P.W.3 nor had he the knowledge that by his act, he would have caused the death of P.W.3, especially when it appears from the evidence of P.W.3 that the appellant ran away from the spot with the Bhujali (M.O.I), when P.Ws. 1 and 2 came rushing to the spot, which appears to be contrary to the evidence of P.Ws. 1 and 2 who had not spoken a single word regarding the occurrence or this fact. Had there being any intention on the part of the appellant to cause death of P.W.3, he could not have ran away from the spot without making further attempt to inflict injuries to P.W.3. There appears from the evidence of P.W.3 that there was also tussle between P.W.3 and the appellant, but P.W.3 had strangely not sustained any injury or scratches on his person nor was he sent to the hospital by the I.O. for detection of any injury on his person. P.W.6 had also admitted in his cross-examination that he did not find any mark of violence at the spot. The evidence of P.W.3 further transpired that he was targeted by the appellant because he had been cited as a witness in a case between the appellant and Jwakim Sahoo and he was also a witness in a G.R. Case in which the appellant and his brothers were accused persons. These evidence might have bearing in the matter, but P.W.3 had neither sustained any kind of injury by the attempt of the appellant nor had the seizure witness supported the seizure of the weapon of offence (M.O.I). Further, P.W.6 had not been able to prove the manner and circumstance of seizure of M.O. I which was also not identified by P.W.3 in the course of his examination in the Court following due procedure of recording of evidence. One of the seizure witnesses P.W.4 was the brother-in-law of P.W.3, but he had not supported the seizure of M.O.I and in his cross-examination, he had stated that P.W.3 and accused (appellant) were quarrelling with each other and he had gone to the Police Station at that time and reported orally about the occurrence to the O.I.C. which he reduced into writing and he had signed on that report and thereafter Police came to the spot and arrested the appellant. These were the evidence which persuades this Court not to accept the evidence of P.W.3 without any independent corroboration since the evidence of P.W.3 appears to be not free from biases and the evidence of P.W.3 in the circumstance of other evidence cannot be considered as impeccable evidence to convict the appellant in view of the fact that neither seizure witness had supported the seizure of M.O.I nor had P.W.3 sustained any kind of injury on his person, but there appears from evidence on record about some rancor and hostility existing between P.W.3 and appellant at that point of time. This was how the evidence of P.W.3 not trustworthy or believable or cannot be considered as a sterling evidence.

Learned trial Court of course had relied upon the sole evidence of P.W.3 to convict the appellant by taking recourse to Section 134 of the Indian Evidence Act which provides that no particular number of witnesses shall in any case be required for proof of any fact. This Court is, however, conscious of the fact that law requires quality of evidence nor the quantity and if the evidence is unblemished and beyond all possible criticism with satisfaction of the Court that the witness was really speaking truth and his evidence was of such quality, the Court could rely upon the sole testimony of witness to maintain a conviction against the accused, but when the evidence is not sterling quality nor free from any blemishes, it would not be safe to base conviction on such doubtful evidence. This Court has already found the evidence of P.W.3 was of not that quality which qualifies the test to be relied on U/S. 134 of Indian Evidence Act.

A cumulative reappraisal of evidence on record, this Court neither finds any quality evidence nor does consider the evidence of sole witness P.W.3 of any sterling quality to base conviction against the appellant for any offence. It, therefore, appears to the Court that the prosecution was not successful in establishing its case against the appellant beyond all reasonable doubt in any manner.Hence, the appellant is, therefore, entitled to a clean acquittal, but the learned trial Court had misapplied and failed to appreciate the evidence on record against the appellant in the impugned judgment to hold him guilty of the offence. Ergo, the judgment of conviction and order of sentence passed on 26th November, 1993 by the learned Assistant Sessions Judge, Rourkela in Sessions Trial No. 29/6 of 1993 for convicting and sentencing the appellant for offence punishable U/S 307 of IPC are hereby set aside and the appellant is acquitted of the charges.

In the result, the appeal stands allowed on contest, but in the circumstance there is no order as to costs. The bail bond(s) of the appellant stand(s) discharged.

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