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High Court Of Orissa
B. N. DASH
KANHU CHARAN PATRA - Appellant
Versus
STATE OF ORISSA - Respondent
CRI. REV. 595 Of 1990
Decided On : 12/13/1994
CRIMINAL LAW - SECTION 457/34 AND 354/34 IPC - HOUSE-BREAKING BY NIGHT WITH INTENT TO COMMIT OFFENCE AND ASSAULT OR CRIMINAL FORCE TO WOMAN WITH INTENT TO OUTRAGE HER MODESTY - CONVICTION - EVIDENCE - APPRECIATION - COMMON INTENTION - BENEFIT OF PROBATION OF OFFENDERS ACT.
Fact of the Case:
The petitioners were convicted by the trial court and the appellate court for house-breaking by night with intent to commit an offence and assault or criminal force to a woman with intent to outrage her modesty under Sections 457/34 and 354/34 IPC, respectively. The petitioners challenged their conviction and sentence in the High Court.
Finding of the Court:
The High Court found that the evidence of the prosecution witnesses was consistent and reliable, and that the defence witnesses had admitted a substantial part of the prosecution case. The Court held that the petitioners Santosh alias Nepali and Gopal Krushna were rightly convicted under Sections 457/34 and 354/34 IPC, respectively, as there was direct evidence against them. The Court also held that the petitioner G. Simadri Patra was rightly convicted under Section 354 IPC with the aid of Section 34 IPC, as there was evidence to show that he had told the other petitioners to finish their work soon.
Issues: 1. Whether the evidence of the prosecution witnesses was consistent and reliable. 2. Whether the defence witnesses had admitted a substantial part of the prosecution case. 3. Whether the petitioners Santosh alias Nepali and Gopal Krushna were rightly convicted under Sections 457/34 and 354/34 IPC, respectively. 4. Whether the petitioner G. Simadri Patra was rightly convicted under Section 354 IPC with the aid of Section 34 IPC. 5. Whether the petitioner Kanhu Charan Patra was rightly convicted under Sections 457/34 and 354/34 IPC.
Ratio Decidendi: 1. The Court held that the evidence of the prosecution witnesses was consistent and reliable, as it was corroborated by the evidence of the defence witnesses and the medical evidence. 2. The Court held that the defence witnesses had admitted a substantial part of the prosecution case, as they had admitted that the petitioners had broken open the door of the house and that the petitioners had assaulted the victim. 3. The Court held that the petitioners Santosh alias Nepali and Gopal Krushna were rightly convicted under Sections 457/34 and 354/34 IPC, respectively, as there was direct evidence against them that they had molested the victim after breaking open the door of the house. 4. The Court held that the petitioner G. Simadri Patra was rightly convicted under Section 354 IPC with the aid of Section 34 IPC, as there was evidence to show that he had told the other petitioners to finish their work soon. 5. The Court held that the petitioner Kanhu Charan Patra was not rightly convicted under Sections 457/34 and 354/34 IPC, as there was evidence to show that he had entered the house to prevent the other petitioners from committing any crime.
Final Decision: The High Court allowed the revision petition filed by the petitioner Kanhu Charan Patra and set aside his conviction and sentence. The Court dismissed the revision petitions filed by the other petitioners.
B. N. DASH, J.
( 1 ) THESE two revision petitions are directed against the judgement of the learned Second Addl. Sessions Judge, Ganjam, Berhampur whereby he has confirmed the judgement of the trial court convicting the petitioners under Sections 457/34 I. P. C. and 354/34 I. P. C. and sentencing them to each undergo rigorous imprisonment for two years and to pay fine of Rs. 500/-, in default, to undergo rigorous imprisonment for a further period of six months under Section 457/34 and to undergo rigorous imprisonment for one year under Section 354/34 IPC, with a direction that the sentences shall run concurrently.
( 2 ) SHORTLY stated, the prosecution case is that on 2-7-1989 at about 11. 30 P. M. while Radha Charan Patnaik (P. W. 10) was returning to his rented house from the market, he found on a junction near his house some persons to have been injured. He rushed to his house and returned to the junction with some face powder and neosprin ointment. Not being satisfied with such medicine, the petitioners who were there in the junction assaulted P. W. 10 mercilessly and threw him to a road side drain. Having heard the hue and cry raised by P. W. 10, his family members came to their outer varandah which was covered by wooden jeffry but did not dare to come to the rescue of P. W. 10 because of the golmal going on there. Thereafter, the accused persons broke open the jeffry with the weapons of offence they were holding and went inside the house which consisted of three rooms one behind the other. Out of fear of assaults, the wife (P. W. 3) and the two daughters (P. Ws. 7 and 8) of P. W. 10 went inside the house and bolted the entrance door from inside. It is alleged that the accused persons broke open the door and went to the second room to find P. W. 3 there. Out of fear, P. Ws. 7 and 8 who are young girls entered inside the third room. P. W. 3 told the accused persons to take away her life if they liked but not to harass her daughters. In the meanwhile, both the sons of P. W. 10 namely, Sushil Kumar Patnaik (P. W. 1) and Sunil Kumar Patnaik (P. W. 4) returned to the house after closing their betal shop situated nearby and found all the accused persons to be there inside the house. At that time, accused Santosh alias Napali Patnaik and Gopal Krushna Panda went inside the third rooms and selected the two girls (P. Ws. 7 and 8 ). Somehow or other P. Ws. 7 and 8 made good their escape by scaling over the wall of their back side bari and took shelter in the house of one Suadhin Patra (not
examined) situated in another Oshi. P. W. 1 rushed to the nearby Gauri Sahi and implored some people to come to his rescue. Some persons of Gauri Sahi rushed to the spot along with him and at their sight the accused persons took to their heels. P. W. 10 was rescued from the drain and he gave out that the culprits had taken away his wrist-watch from his hand and Rs. 500/- from his shirt pocket. First information report to the above fact (Ext. 1) having been lodged by P. W. 1 in the same night at 1. 30 A. M. , the police rushed to the spot, seized the broken doors, sent the injured i. e. P. Ws. 3 and 10 for medical examination, arrested the accused persons, sent some of the accused persons for medical examination and after completion of investigation submitted charge-sheet. The case having been committed, not only the four petitioners but also one Nirakar Mohanty faced trial in the court of the Chief Judicial Magistrate-cum-Assistant Sessions Judge, Berhampur. As already indicated earlier, the petitioners were convicted and sentenced and although accused Nirakar Mohanty was convicted under Sections 457/34 and 354/34 I. P. C. , he was released on Probation of Offenders Act. The said accused Nirakar Mohanty has not filed any revision although his appeal against the order of conviction and sentence was dismissed by the appellate court.
( 3 ) ACCUSED Santosh alias Nepali Patnaik took the plea of alibi saying that at the time of the alleged occurrence
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