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IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. Sahoo, J.
Durga Soren – Appellant
Versus
State of Orissa – Respondent
Jail Criminal Appeal No. 16 of 2013
Decided On : 14-02-2019
Indian Penal Code - Conviction under sections 307 and 448 - [SLEEPING WITH HUSBAND - INDIAN PENAL CODE 448, 307] - The court discussed the nature of the injury sustained by the victim, the absence of medical evidence from other hospitals, and the definition of house trespass under section 442 of the Indian Penal Code. The court altered the conviction under section 307 to one under section 324 and set aside the conviction under section 448.
Fact of the Case:
The appellant was convicted under sections 307 and 448 of the Indian Penal Code for injuring a woman while she was sleeping with her husband on the verandah of their house.
Finding of the Court:
The court found the appellant guilty under section 324 instead of section 307 and set aside the conviction under section 448.
Issues: The issues revolved around the nature of the injury, the absence of medical evidence from other hospitals, and the definition of house trespass under section 442 of the Indian Penal Code.
Ratio Decidendi: The court considered the nature of the injury, absence of medical evidence from other hospitals, and the definition of house trespass under section 442 of the Indian Penal Code in reaching its decision.
Final Decision: The conviction under section 448 was set aside, and the conviction under section 307 was altered to one under section 324. The appellant's sentence was modified, and he was ordered to be released from custody.
JUDGMENT :
S.K. Sahoo, J.
1. The appellant Durga Soren has preferred this appeal challenging the judgment and order dated 14.03.2012 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No. 34 of 2010 in convicting him under sections 307 and 448 of the Indian Penal Code and sentencing him to undergo R.I. for a period of ten years and to pay a fine of Rs. 1,000/- (rupees one thousand), in default, to undergo further R.I. for a period of one year under section 307 of the Indian Penal Code and R.I. for a period of one year under section 448 of the Indian Penal Code and directing both the sentences to run concurrently.
2. The prosecution case, in short, is that on 14/15.01.2010 during midnight while the injured PW-9 Sarfa Soren was sleeping with her husband Gujai Soren (PW-8) on the verandah of their house situated in village Bhulupahadi, Kuder Sahi under Rairangpur Rural police station in the district of Mayurbhanj, the appellant came there and dealt a blow by means of a Budia (axe) near the right ear of PW-9 and also dragged her. When PW-9 shouted, her husband (PW-8) got up whereafter the appellant fled away from the spot. PW-9 was shifted to S.D. Hospital, Rairangpur where he was treated by PW-3 Dr. Debendra Nath Tudu, Asst. Surgeon. She was then taken to Baripada Hospital and Cuttack Hospital.
On 30.01.2010 PW-8 Gujai Soren lodged the first information report before Hatbadra Outpost which was received by PW-10 Gayadhar Behera, A.S.I. of Police attached to the said Outpost who after making S.D.E. No. 468 dated 30.01.2010, sent the F.I.R. to Rairangpur Rural police station where the Officer in charge of the said police station registered Rairangpur Rural P.S. Case No. 04 of 2010 under sections 448, 307 and 506 of the Indian Penal Code against the appellant and directed PW-10 to take up investigation of the case. PW-10 examined the informant (PW-8), visited the spot and prepared spot map (Ext.4). He examined other witnesses, seized one axe (M.O.I) under seizure list Ext.2. He issued injury requisition to S.D. Hospital where PW-9 was earlier treated and received the injury report. On 02.02.2010 he arrested the appellant and forwarded him to Court. He sought for the opinion from the Medical Officer of S.D. Hospital regarding possibility of injury on PW-9 with the seized axe and received opinion vide Ext.5/2. After completion of investigation, he submitted charge sheet on 13.04.2010 against the appellant under sections 448, 307 and 506 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 charged the appellant under sections 448, 307 and 506 of the Indian Penal Code on 05.10.2010 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.
4. In order to prove its case, the prosecution examined ten witnesses:
PW-1 Sarat Kumar Giri is the scribe of the first information report and a witness to the seizure of axe under seizure list (Ext.2).
PW-3 Dr. Debendra Nath Tudu was the Asst. Surgeon, S.D. Hospital, Rairangpur who examined PW-9 and proved the injury report (Ext.3).
PW-8 Gujai Soren is the husband of the injured and he is also the informant in the case.
PW-9 Sorfa Soren is the injured eye witness.
PW-10 Gayadhar Behera was the A.S.I. of Police, Hatbadra Outpost who is the Investigating Officer.
The prosecution exhibited five documents. Ext.1 is the first information report, Ext.2 is the seizure list of the axe, Ext.3 is the injury report of PW-9, Ext.4 is the spot map and Ext.5 is the query report.
The prosecution also proved the weapon of offence i.e. axe as M.O.I.
5. The defence plea of the appellant was one of denial.
6. The learned trial Court after assessing the evidence on record though acquitted the appellant of the charge under section 506 of the Indian Penal Code but mainly
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