S.K. Sahoo, J. - The appellant Nrusingha Mallick faced trial in the Court of learned Adhoc Additional Sessions Judge, Fast Track Court No. II, Cuttack in Sessions Trial No. 421 of 2006 for offence punishable under section 307 of the Indian Penal Code for assaulting Rabindra Kumar Mallick (P.W.2) on 28.02.2006 at about 8.00 a.m. at village Laxminarayanpur under Jagatpur Police Station with an intention to commit murder and also caused hurt to him. The learned Trial Court vide impugned judgment and order dated 10.01.2007 found the appellant guilty under section 324 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for three years.
2. The prosecution case, as per the First Information Report lodged by Nabakishore Mallick (P.W.1) on 28.02.2006 before the Officer-in-charge of Jagatpur Police Station is that on that day at about 8.00 a.m. while he along with his younger brother Rabindra Kumar Mallick (P.W.2) were going to the weekly market on a bicycle and P.W.2 was riding the cycle and P.W.1 was sitting as a pillion rider being a lame man, on the way all on a sudden the appellant assaulted P.W.2 by means of a spade on the head and other parts of the body as a result of which P.W.2 fell down on the ground. The injured sustained severe injuries on different parts of the body and became unconscious. Some of the persons namely, Dijabara Mallick, Narayan Mallick (P.W.3) and others came to the spot and found the appellant assaulting the injured.
On the basis of such First Information Report, Shri Sunil Mohanty, S.I. of Police, who was the officer-in-charge of the Jagatpur Police Station registered Jagatpur P.S. Case No. 19 dated 28.02.2006 under sections 341 and 307 of the Indian Penal Code and directed P.W.8 Satrugnana Sethi, A.S.I. of Jagatpur Police Station to investigate the case.
During course of investigation, P.W.8 examined the informant, visited the spot and prepared spot map Ext.5. He seized the weapon of offence i.e. spade (M.O.I) under seizure list Ext.2. The I.O. arrested the appellant on 28.02.2006 and forwarded him to the Court on 01.03.2006. He issued injury requisition in favour of the injured (P.W.2) and received the injury report. On 02.05.2006 he sent the weapon of offence to the Medical Officer for opinion and received the opinion vide Ext.4/1. After completion of investigation, he submitted charge-sheet against the appellant on 05.05.2006 under section 341, 323 and 307 of the Indian Penal Code.
3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court framed charge against the appellant under section 307 of the Indian Penal Code on 21.11.2006. Since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prove his guilt.
4. During case of trial, in order to establish its case, the prosecution examined eight witnesses.
P.W.1 Nabakishore Mallick is the informant in the case and he is the elder brother of the injured and he is an eye witness to the occurrence.
P.W.2 Babuli @ Rabindra Kumar Mallick is the injured.
P.W.3 Narayan Mallick and P.W.4 Bira Mallick are the eye witnesses to the occurrence.
P.W.5 Satyananda Mallick is another eye witness to the occurrence and he is also a witness to the seizure of spade under seizure list Ext.2.
P.W.6 Khirod Mallick is a witness to the seizure of spade under seizure list Ext.2.
P.W.7 Dr. Jyotiprakash Biswal was working as Casualty Medical Officer in S.C.B. Medical College and Hospital, Cuttack and on 28.02.2006 he examined the injured and noticed injuries and submitted his report Ext.3. He also gave opinion regarding the possibility of the injuries sustained by the injured by the spade which was produced before him by the Investigating Officer and his opinion has been marked as Ext.4/2.
P.W.8 Satrughana Sethi is the Investigating Officer.
The prosecution exhibited five documents. Ext.1 is the First Information Report, Ext.2 is the seizure list, Ext.3 is the injury report, Ext.4 is the requisition of the Investigating Officer and Ext.5 is the spot map.
5. The defence plea of the appellant was one of denial and it was suggested to the injured that his cycle came in contact with Nrusingha Mallick while he was going to Paga weekly market.
6. Coming to the medical evidence, P.W.7 Dr. Jyoti Prakash Biswal examined the injured (P.W.2) at S.C.B. Medical College and Hospital, Cuttack on 28.02.2006 and as per his report Ext. 3, he noticed the following injuries:-
(i) Split laceration over left forehead at fronto parietal junction in a linear way of 3" x �" x skin deep;
(ii) Laceration over right forehead above the right eyebrow of 1" x �" x skin deep;
(iii) Laceration over left arm of size 2" x �" x soft tissue deep and 2 �" x � x skin deep;
(iv) Laceration over right arm of 1�" x �" x skin deep.
(v) Laceration over back at inter scapular region of 4" x �" x skin deep.
7. Mr. Satya Narayan Mishra, learned counsel appearing for the appellant contended that the evidence of the injured as well as the other eye witnesses are not credible and there are discrepancies in their evidence and the medical evidence also does not corroborate the ocular testimony and therefore benefit of doubt should be given in favour of the appellant.
Mr. Jyoti Prakash Patra, learned Additional Standing Counsel on the other hand contended that not only the injured and the eye witnesses but also the medical evidence clearly substantiate the prosecution case that it is the appellant who assaulted the injured on the date of occurrence by spade and the doctor has also categorically opined that the injuries sustained by the injured were possible by means of spade (M.O.I) and therefore the learned trial Court has rightly convicted the appellant under section 324 of Indian Penal Code.
8. Considering the rival contentions raised on behalf of the respective parties and looking at the medical evidence, there is no dispute that the injured P.W.2 had sustained as many as five injuries on his forehead, arms and scapular region. The eye witnesses have stated that M.O.I is the weapon of offence and the doctor (P.W.7) on examining M.O.I has given his opinion vide Ext.4/1 wherein he has stated that the injuries sustained by the injured are possible by M.O.I.
Coming to the evidence of the injured P.W.2, he has stated that on the date of occurrence while he was going with his elder brother (P.W.1) to Paga weekly market to run to their betel business in a cycle, all on a sudden the appellant came with a spade and assaulted him on the head as a result of which he fell down from the cycle and his elder brother also fell down and while he was lying on the ground, the appellant dealt number of blows on the hand, head and back. The evidence of the injured further indicates that he sustained bleeding injuries and thereafter he was shifted to Padmapur Hospital and then to S.C.B. Medical College and Hospital, Cuttack. The evidence of the P.W.2 has practically remained unchallenged and in the cross-examination, he has stated that the accused came from his backside and assaulted him and while the accused was assaulting, he was very close to him. He has specifically stated that he had sustained five injuries which is corroborated by the medical evidence. The evidence of P.W.2 gets corroboration from the other eye witnesses like P.W.1, P.W.3, P.W.4 and P.W.5. Nothing has also been elicited in the cross-examination of those eye witnesses to discredit their version.
P.W.1 and P.W.2 have stated that the appellant was working previously in their betel shop but he committed mischief for which he was ousted from his work and that is why he bore grudge against the injured and assaulted him. On this aspect also the evidence has remained unshaken. Thus the prosecution evidence that there was previous dispute between the parties which is the motive behind the commission of the crime is clearly established. Enmity is a double edged weapon but on that score only, the prosecution case cannot be discarded. The appellant produced the spade before police which was seized under seizure list Ext.2 as stated by P.W.6. Ext.2 also clearly indicates that it is the appellant who produced the spade before the Investigating Officer.
9. After analysing the evidence of the injured, the eye witnesses and the medical evidence so also the surrounding circumstances, it is apparent that the appellant voluntarily caused hurt to P.W.2 by means of spade (M.O.I) and therefore the ingredients of the offence under section 324 of Indian Penal Code is clearly made out. The learned Trial Court has discussed the evidence on record and came to hold that the prosecution has been able to prove a case under section 324 of Indian Penal Code against the appellant instead of the case under section 307 of the Indian Penal Code. I find no infirmity in the impugned judgment and order of conviction of the appellant under section 324 of Indian Penal Code. The learned Trial Court has also imposed a sentence of rigorous imprisonment for three years. Looking at the manner in which the appellant had assaulted the injured P.W.2 and caused as many as five injuries on different parts of the body including the head and taking into account the motive behind the commission of the crime, I find that the sentence awarded was just, proper and adequate.
10. Accordingly, the impugned judgment and order of conviction of the appellant under section 324 of the Indian Penal Code and imposition of sentence of rigorous imprisonment for three years stands confirmed. The appellant was taken into custody on 01.03.2006 and he was throughout in custody during trial. During pendency of the appeal also, he was not released on bail. Therefore he had already undergone the sentence which was imposed on him by the learned Trial Court. The appellant should be set at liberty forthwith, if not already released, if his detention is not otherwise required in any other case.
11. Accordingly, the JCRLA stands dismissed.
