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2025 DAILYLAW 6890 (ORI)

Sudhansu Sethy @ Babuli v. State of Orissa

2025-09-09

Sibo Sankar Mishra

body2025
Judgment: S.S. Mishra, J. The present appeal arises out of the judgment and order of sentence dated 29.10.2005 passed by the learned Ad-hoc Additional Sessions Judge (FT-1), Keonjhar in S.T. Case No.64/31 of 2005/G.R. Case No.919 of 2004, whereby the learned trial Court convicted the accused-appellant under Section 324 of the Indian Penal Code, 1860 (hereinafter referred to as “the Code” for brevity), sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for a further period of three months. Prosecution Story 2. The prosecution case, as disclosed in the F.I.R., reveals that on 03.11.2004, the complainant, namely Purna Chandra Sahu of Birabarpur Patna under Town P.S., Keonjhar, lodged a written report before the O.I.C., Town P.S. It was alleged therein that at about 9.30 P.M. on the said night, while the Laxmi Puja immersion procession was proceeding towards Birabarpur Patna square, the accused, Babuli Sethy, attempted to obstruct the trucks on the road. At that juncture, the injured, Sekharlal Kumar Sahu, who is the brother-in-law of the complainant, questioned the accused as to why he was detaining the trucks. The accused, in response, abused him in filthy language and gave him a push. The members of the procession organising committee intervened and separated the parties, whereafter the procession continued. However, as soon as the procession reached the junction of the street, the accused, all of a sudden took out an axe from an autorickshaw (Tempo) bearing Registration No. O.R.-09-E-2468 and, with the intention to kill, dealt a blow on the back of the head of P.W.2 (the injured), causing him to fell down unconscious on the spot. The members of the organisers immediately shifted the injured to the District Headquarters Hospital, Keonjhar. On the basis of the aforesaid report, the police registered Town P.S. Case No.224 of 2004 under Sections 341/307/294 of the I.P.C. and, after completion of investigation, submitted charge-sheet against the accused. The appellant faced trial on his stance of denial of charges. 3. The members of the organisers immediately shifted the injured to the District Headquarters Hospital, Keonjhar. On the basis of the aforesaid report, the police registered Town P.S. Case No.224 of 2004 under Sections 341/307/294 of the I.P.C. and, after completion of investigation, submitted charge-sheet against the accused. The appellant faced trial on his stance of denial of charges. 3. In support of the prosecution case, eight witnesses were examined out of which P.W.1 was the complainant who was also an eye witness, P.W.2 was the Victim, P.Ws.3, 4 and 5 were the independent witnesses, who were also the eye witnesses, P.W.6 was the doctor, who treated the victim, P.W.7 was the then I.I.C. of Ghasipura, Keonjhar, who has registered the case and P.W.8 was the I.O. of the case. However, the defence did not adduce any evidence in support of its plea. Trial Court’s Analysis and Judgement 4. The learned Trial Court has meticulously dealt with the prosecution story in para 6 of its judgement which is reproduced herein for the convenience of ready reference: 6. The case of the prosecution strongly based on the evidence of eye-witnesses who were present all-through near the injured. P.W.1 is the complainant, while corroborating the F.I.R. story he stated that the Laxmi puja immersion procession started from N.H.-6 and proceeded towards Birabarpur Patna. At about 9.30 P.M. when the procession reached at Birabarpur Patna the accused Sudhansu appeared with an axe in his hand and he dealt a blow to the backside head of the injured. The injured fell to the ground being unconscious and he sustained a bleeding head injury and some other injury due to the fall .P.W.1 along with P.W.5 and others shifted the injured to the District Headquarters Hospital. Immediately thereafter P.W.1 reported the matter to the police by submitting a written report vide Ext.1. According to P.W.1 during the treatment at the hospital, it was felt necessary for further treatment at Cuttack as the attending doctor had advised to shift the patient to S.C.B. Medical College, Cuttack as there was bone injury in the scalp. So the injured was shifted to Cuttack where an immediate operation was required to be undertaken for which the injured was admitted to a Nursing Home as per the instruction of Dr. Srikanta Das, Associate Professor, S.C.B. Medical College, Cuttack. After the patient was admitted an operation was undertaken on the head injury. So the injured was shifted to Cuttack where an immediate operation was required to be undertaken for which the injured was admitted to a Nursing Home as per the instruction of Dr. Srikanta Das, Associate Professor, S.C.B. Medical College, Cuttack. After the patient was admitted an operation was undertaken on the head injury. P.W.2 is the injured victim who in his evidence stated that the accused was standing near him in the middle of the procession and all on a sudden the accused came from his behind and he dealt a blow on his head in the backside by means of an axe and he could see the accused passing through when he fell to the ground. He lost his consciousness after the assault and then he regained his consciousness at the Hospital.P.w.2 corroborated the evidence of P.W.1 in all other material particulars. P.Ws 3, 4 and 5 are all present in the procession and all of them have unanimously stated that as soon as the procession reached Birabarpur Patna chakka the accused who was present in the procession along with them suddenly came from behind the injured with an axe and he dealt a blow on the backside head of the injure. P.W.4 specifically stated that at the relevant time he was facing to the injured and the accused came from his behind dealt a blow and then he fled he away from the spot after the assault. P.Ws. 3, 4 and 5 have clearly corroborated the evidence of P.Ws. 1 and 2 on the factum of assault as well as other material particulars. During course of cross-examination by the defence P.w.1 stated that there was previous enmity between the accused and the injured but he disclosed that during the course of procession when the accused caused traffic problems by stopping the vehicles on the road the injured disuaded him from doing so, but there was an exchange of words between them. Subsequently they proceeded as usual and there was no further disturbance from the conduct of the accused who also came with the procession till Birabarpur Patna chhaka. According to P.W.1 for a moment at the chhaka the accused was found absent and, after a little while he appeared from his behind and the accused dealt the blow by the axe.P.W.1 has seen the accused assaulting the injured. According to P.W.1 for a moment at the chhaka the accused was found absent and, after a little while he appeared from his behind and the accused dealt the blow by the axe.P.W.1 has seen the accused assaulting the injured. He stated that soon after the assault the accused ran away. Nothing material has been elicited by the defence to discredit his evidence. Similarly, nothing was also elicited from P.W.2 by the defence to discredit his evidence. Taken together their evidence, prosecution proved the factum of assault by the accused. However, during cross-examination of P.W. 3, he admitted that even though he was very much present he has not seen the assault or the weapon of offence. During cross-examination by the defence P.W.4 strongly corroborated his evidence in chief, but to a question put by the Court he stated that soonafter the assault he has not seen the accused at that stage. P.w.5 in his cross- examination stated that he was the President of the Puja Committee and he was in the over-all charge. In reply to a question put by the Court he stated that while the accused was in the procession he was not holding the axe in his hand. However, nothing was found discrepant by the defence to discredit his evidence. P.W.6 is the doctor who examined P.W.2 on 3.11.04 at 9.30 PM on on a police requisition and he found two simple injuries, one, an incised looking wound, 4 long slightly curved scalp deep under right parietal region of head and the other injury is a laceration of 1ª length X1/4" width skin-deep under the bridge of the nose between two eyes. He opined that the head injury could be possible by a weapon with a cutting edge such as an axe. The time of injury was within six hours from the time of his examination. He prepared his medical report vide Ext. 2. He opined that the head injury could be possible by a weapon with a cutting edge such as an axe. The time of injury was within six hours from the time of his examination. He prepared his medical report vide Ext. 2. In reply to a que vide Ext.6 by P.w.8 as to whether the injury inflicted on the injured could have caused his death in ordinary course, if timely treatment would not have been provided, P.W.6 opined vide Ext.3 that in cases of head injuries, no definite opinion could be given as to the causing of death of a person but he has opined that if immediate treatment could not have been provided, the injury could have caused the death of the injured -victim.P.W.8 is the 1.0. who took up investigation in to the case as per the direction of P.W.7. During investigation he examined complainant, visited the spot and prepared the spot map vide Ext.2. He then visited the Headquarters Hospital, issued injury requisition vide Ext.4 and he examined the injured. After that he seized a tempo bearing registration NO.OR-09B-2468 and its R.C. Book from the District Headquarters Hospital campus under Ext.5 since the same was involved in the offence. Subsequently on 11.11.04 he arrested the accused on his surrender before the P.S. and on the next day he forwarded him to the Court. P.W.8 issued a query to the doctor who examined the injured on the nature and cause of injury vide Ext.6. During cross-examination, by the defence P.W.8 admitted that he has not examined any resident of the spot locality and he stated that he has not noticed blood at the spot. It was elicited by the defence that the spot according to P.W.8 is the Municipal road.P.W.8 has not examined the injured further after his return from the treatment at Cuttack He could not find the weapon of offence from the Tempo as disclosed by the witnesses and he also could not get the weapon of offence during his investigation despite his search for the same.P.W.8 has not seized the wearing apparels of the injured.P.w.7 is the I.I.C. of the Town P.S. who took charge of the investigation from P.W.8 on 29.12.04. During his part of the investigation he could not get any clue to seize the weapon of offence.P.W.7 explained that he did not seize the wearing apparels of the injured since the same had been washed off by his family members After completion of investigation he submitted charge sheet on 4.1.05 against the accused. From the evidence of P.Ws 7 and 8 nothing is found to say that there is any defect in the investigation process and their investigation is self- explanatory from the exhibits. But admittedly the investigating officer have not been able to get any clue as to the weapon of offence used in the occurrence. It is noticed that P.W.7 is acquainted with the case since its inception as he has registered the case on 3.11.04 at 10.30 P.M vide Town P.S. Case No. 224/04 under Ext.1. This is the whole evidence on record from the side of the prosecution.” 5. Further in para 9 of the impugned Judgement the learned Court below while appreciating the evidence came to the conclusion that the charge u/s 307 of the Code is although serious but the same couldn’t be proved against the present accused, and reached at the following findings: “9. Heard the learned counsels. As seen from the evidence of the eye-witnesses and after going through the respective arguments advanced by the prosecution as well as the defence, it is seen that the prosecution has been able to prove the factum of assault by the accused by means of an axe as a result of which the injured sustained a bleeding back-head injury and soon after the occurrence the injured has been shifted to the District Headquarters Hospital, Keonjhar and underwent a treatment The medical evidence of P.W.6 strongly corroborate the eye-witnesses account of Paus 1,2,4 and 5. It is a fact that the prosecution has failed to prove the weapon of offence as the investigating agency failed to seize the same. But both P.ws 7 and 8 have explained the circumstances under which they could not seize the weapon of offence. The offence U/S 307 I.P.C. is a serious offence and it is not known why the investigating officers could not locate the weapon of offence. Even though it cannot be said to be a serious lapse on the part of the investigation still it is a defect in the process of investigation. The offence U/S 307 I.P.C. is a serious offence and it is not known why the investigating officers could not locate the weapon of offence. Even though it cannot be said to be a serious lapse on the part of the investigation still it is a defect in the process of investigation. The law is well settled that in case of a defect in the investigation the accused does not get any benefit since there is strong evidence of the eye-witnesses. Now coming to the ingredients of Sec.307 1.F.C., the injuries sustained by the injured is admittedly a simple injury and the same has been opined by P.W.6 could be possible by means of an axe. During course of cross-examination by the defence PW1 has clearly stated that while the procession was nearing the occurrence spot at Biraberpur Patne chhaka the accused was found absent for a moment even though he was present all along and after a little while he came with an axe and dealt a blow on the head of the injured from his behind This conduct of the accused has been clearly witnessed by P.Ws 1,2,4 and 5 It is true that P.W.4 has not seen the assault, but he has seen the accused coming with an axe and fleeing away from the spot after the assault Similarly, even though P.W.5 could not say the source from which the accused get the weapon of offence, he has seen the accused assaulting the injured by means of an axe. P.W.5 explained that he was the President of the Organisation and he was in overall charge of the procession Therefore, it is but natural in his part not to focus his attention individually on all friends as nobody expected the accused to commit such an act. The manner of assault and the nature of injury are such that had the accused the intention to commit murder of the injured he would not have caused simple injury by means of an axe, because had he the intention to cause murder of the injured he could atleast have caused a grievous injury as the accused had not been obstructed or resisted by any of the witnesses. Prosecution has failed to prove any further treatment of the injured by any cogent medical evidence. Therefore, prosecution has failed to prove the intention of the accused to commit murder of the injured. Prosecution has failed to prove any further treatment of the injured by any cogent medical evidence. Therefore, prosecution has failed to prove the intention of the accused to commit murder of the injured. Hence the charge U/S 307 1.P.C. fails. The liability of the accused must be limited to the act which he has committed and it should not be extended to the consequences of another act which the accused has not committed. The evidence on record clearly establishes an offence by the accused U/S 324 I.P.C. As regards other charges admittedly, the prosecution has failed to establish the same against the accused.” 6. Consequently, the learned Ad-hoc Additional Sessions Judge (FT-1), Keonjhar in S.T. Case No.64/31 of 2005, convicted the accused-appellant under Section 324 of the Code, sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs.3,000/- (Rupees three thousand), in default to undergo rigorous imprisonment for a further period of three months. Aggrieved by the Judgement of conviction and Order of sentence passed against the appellant, he has filed the present appeal. 7. Heard Mr. Anshuman Ray, learned Counsel for the appellant and Mr. R.B. Dash, learned Additional Standing Counsel for the State. Submissions 8. It was contended by Mr. Ray, learned Counsel for the appellant that the three independent eye-witnesses, namely P.Ws.3, 4 and 5, have not supported the prosecution version in material particulars, inasmuch as none of them have stated to have seen the accused bringing out the axe or assaulting the injured. For ready reference, the relevant portions of their cross-examinations and answers to court questions are extracted herein below: P.W.3 in his cross-examination stated: “ 3. The accused was also dancing with us in the procession to the tune of music within a distance of about 2 Mtrs. I saw P.W.2 when he started falling to the ground and I have not seen the accused or the weapon with which Sekhar, was assaulted or by whom.” Similarly, P.W.4 in his cross-examination, as well as in answer to questions put by the Court, deposed: “2.At the relevant time the Sekhar P.W.2 was along with his friends in the middle of the procession and I was also present near them. I was facing Sekhar and the accused came from my behind. I have not seen the assault. To Court: 3. I was facing Sekhar and the accused came from my behind. I have not seen the assault. To Court: 3. Whether you have seen the accused within few moments of the assault and within falling of the injured to the ground? Ans:-No, I have not seen the accused in that stage.” P.W.5 also made statements in the same vein during cross-examination and in reply to questions of the Court. His deposition reads: “To Court: 2. While the accused was in the procession he was not holding the axe in his hand. Cross-examination 2. I am the president of the Laxmipuja committe and I was in over-all charge of the procession. The process- -ion was also controlled by the police personnel. It is not a fact that I am deposing falsehood at the instance of P.W.2” 9. It is further submitted that even the testimony of the victim, in his cross-examination, does not disclose anything substantial to fasten the liability upon the accused under Section 324 of the I.P.C. or to specifically attribute the assault to him. The relevant portion of his evidence, reproduced for ready reference, reads as follows:: “xxx I was in the middle of the procession and the accused was standing near me in the procession and after a moment all on a sudden I sustained a blow on my head in the backside and immediately I could see the accused passing through ,then I fell to the ground.” (To be corrected) It is also submitted that the accused have already undergone custody for 1 month and 12 days in prison. Analysis and Observations 10. Upon careful scrutiny of the evidence on record and the rival submissions advanced, this Court finds that the conviction of the appellant under Section 324 I.P.C. by the learned Trial Court cannot sustain. The foundation of the prosecution case rests upon the allegation that the accused assaulted the injured (P.W.2) with an axe. However, the consistent testimony of the three independent eye-witnesses, namely P.Ws.3, 4 and 5, does not support the allegation against the accused of either bringing out the axe or using the same in the alleged assault. On the contrary, each of them has categorically stated that they have not seen the accused holding any axe or dealing the blow with such a weapon. 11. On the contrary, each of them has categorically stated that they have not seen the accused holding any axe or dealing the blow with such a weapon. 11. Even the evidence of the injured himself, though suggestive of a sudden assault from behind, does not specifically attribute the use of an axe by the accused. He merely stated that he sustained a blow on the backside of his head and thereafter saw the accused passing through. This testimony, at best, establishes that the accused was present in the procession and in proximity to the injured at the relevant time, but it falls short of conclusively proving that the assault was committed by use of a dangerous weapon. 12. The medical evidence adduced through P.W.6, though proving a head injury consistent with a cutting weapon, cannot by itself establish the involvement of the accused with an axe in the absence of credible and reliable ocular testimony to that effect. The investigating agency also failed to seize the alleged weapon of offence, which further weakens the prosecution version regarding the use of a deadly weapon. 13. In view of the above, this Court is of the considered opinion that the prosecution has failed to prove the use of an axe by the accused beyond reasonable doubt. Nevertheless, there is sufficient material on record to establish that the accused voluntarily caused hurt to the injured in the course of the procession. The ingredients of Section 323 I.P.C. stand clearly attracted inasmuch as the injured sustained bodily pain and injury as a result of the assault attributed to the accused, though not by means of a dangerous weapon. Conclusion 14. Consequently, the conviction of the appellant under Section 324 I.P.C. is set aside. Instead, the appellant is held guilty and convicted for the offence punishable under Section 323 I.P.C. 15. The occurrence in question dates back to the year 2004. It is submitted by learned counsel for the appellant that the appellant has already undergone one month and twelve days of imprisonment during the course of trial and pendency of appeal. In the circumstances, it is prayed that the appellant may not be sent back to custody and that the sentence may be restricted to the period already undergone. 16. This Court finds merit in the aforesaid submission. In the circumstances, it is prayed that the appellant may not be sent back to custody and that the sentence may be restricted to the period already undergone. 16. This Court finds merit in the aforesaid submission. Considering the long lapse of time of about 20 years since the incident and the nature of offence now established, the sentence of the appellant is modified to the period he has already undergone. In addition, the appellant is directed to pay a fine of Rs.5,000/- (Rupees five thousand), in default, to undergo rigorous imprisonment for a period of one month. The fine, when realized, shall be paid to the victim as compensation as per the provisions of Section 357 Cr.P.C. 17. Accordingly, the Criminal Appeal is partly allowed.