Asit Kumar Sahu Vs. State of Orissa - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 5. the learned counsel for the petitioner contends that the non-mention of the petitioner's name in the fir as well as in the 161, cr. 7 was not known to the petitioner earlier, his identification in the court ought not to have been believed and as such, the order of conviction was bad in law and liable to be set aside.p. k. mohanty, j.1. this revision is directed against the appellate judgment of the learned sessions judge, cuttack confirming the convictionand sentence passed by the learned assistant sessions judge, cuttack holding the petitioner guilty of offences under section 324, indian penal code and section 27 of the arms act, 1959 and sentencing thereunder. 2. the petitioner along with another was tried for commission of offences punishable under sections 307/326/34, ipc and section 27 of the arms act. on the basis of the fir lodged by p.w. 7 (the injured, due to pistol shot injury on his belly) at the s. c. b. medical college and hospital, cuttack on 14.10.1993 at about 10.00 p.m., purighat p.s. case no. 409 of 1993 was registered under sections 307/ 326/34, ipc read with section 27 of the arms act. the fir story is that p.w. 7 ananda das, the injured-informant, earlier had informed the police regarding movement of one anil sen of his sahi and his friends with pistols, the persons were arrested and pistols were seized from his friends and as such anil sen allegedly bore grudge against the informant. on 14.12.1993 at about 10.30 p.m., while the informant was purchasing cheese, anil sen along with two of his friends came towards his house and anil identified the informant and his house to his friends. after their departure, the informant had gone to durga mandap and came out wearing his sweater, he was seen by anil and his two friends. suddenly, one of the friends of anil came near him and fired the pistols pointing to his belly. the informant, however, caught hold of one of the persons with the pistol, while anil and others fled away. hearing the sound of firing, some sahi people came out, detained the accused-petitioner asit and by then the informant fell down because of the injuries. the police after investigation, submitted charge-sheet under sections 307/326/34, ipc and section 27 of the arms act. 3. the prosecution has examined nine witnesses in all in support of its case. p.ws. 1 and 2 are the witnesses to the seizure, p.w. 3 is the assistant director of state forensic science laboratory, bhubaneswar who had examined the seized pistol and p.w. 4 is the scientific officer of the district f.s.l., cuttack who visited the spot after the occurrence and collected the materials. p.w. 5 is a post-occurrence witness who had reached the spot after hearing the sound and found his sahi people by then had captured asit and the injured-informant was lying on the ground. the injured-informant was removed to the s. c. b. medical college & hospital, cuttack. p.w. 6 is another witness, who was near the spot while both the accused persons came to durga mandap and asit fired the pistol at p.w. 7. p.w. 7 is the injured-informant. p.w. 8 is a post-occurrence witness and p.w. 9 is the investigating officer. 4. the learned assistant sessions judge, cuttack on elaborate discussion and appreciation of evidence found that the accusedasit sahu, the petitioner had caused the injury on the person of p.w. 7 by firing from his pistol. however, the learned trial court acquitted accused anil sen since he was found to be present at the spot without playing any specific overt act. basing on the evidence of p.ws. 5, 6 and 7, the learned assistant sessions judge held that accused asit had fired from his country made pistol aiming at the belly of the injured-informant resulting in the injuries thereon in terms of the medical report. p.w. 3, the assistant director, s.f.s.l., bhubaneswar had proved that the country made pistol with chamber for chambering a .315 calibre rifle catridge, hammer action firing mechanism, trigger with trigger guard, metal plated stock was in efficient working order to discharge fatal bullets of .315 calibre. p.w. 4, the scientific officer of the district forensic science laboratory, cuttack had proved the seizure list ext. 1/2 which contained a country made pistol with fire catridge inside the barrel and a live catridge and fired 'sisha' seized by the investigating officer, p.w. 9 and other blood-stained lungi, sweater, hawani belonging to the victim. p.w. 9 also had seized from the custody of the accused a live catridge. the injury report of the doctor, who treated the injured at the hospital and his report is marked as ext. 8, on admission disclosed a clean cut wound 1 cm diameter 4 cm. below in between depth upto peretoneum towards upper surface of urinary bladder and right ingunial region skin is inverted, bleeding blackened. colour is signing, which is the wound of entry. another wound clean cut 1 cm. diameter, 4 cm. depth skin is everted on the medical aspect of the right thigh. the injuries were, however, reported to be simple in nature. the learned assistant sessions judge, on the basis of the injury report in absence of any specific finding in it that the injury was on any vital part of the body and sufficient in course of nature to cause death, while acquitting the petitioner from the charges under sections 307/326, ipc held him guilty under section 324, ipc and section 27 of the arms act and convicted him thereunder to undergo rigorous imprisonment for two years. the learned sessions judge, on appeal, has confirmed the order of conviction and sentence relying on and discussing elaborately, the evidence of the prosecution witnesses. 5. the learned counsel for the petitioner contends that the non-mention of the petitioner's name in the fir as well as in the 161, cr.p.c. statement is fatal to the prosecution case and the learned courts below ought to have disbelieved the prosecution story. the further contention is that in absence of the test-identification parade and in view of the fact that p.w. 7 was not known to the petitioner earlier, his identification in the court ought not to have been believed and as such, the order of conviction was bad in law and liable to be set aside. the contention is also raised that in absence ofspecific evidence that the accused had possessed the pistol and had the intention to use the arm and in absence of any prior enmity, the learned courts below ought to have disbelieved the prosecution story to record an order of conviction. 6. it is the settled position of law that the high court would not interfere with the concurrent finding of the lower courts by re-appreciating the evidence in its revisional jurisdiction, unless the concurrent findings are shown to be perverse or without evidence, or not tenable in law. the high court would normally not set aside the order, simply because another view is possible or the high court takes such a view. both the courts below, as discussed earlier, have made elaborate discussion in the judgments and have recorded the concurrent finding holding the petitioner guilty of the offences under section 324, ipc and section 27 of the arms act. the contention of the learned counsel that the evidence of p.w. 7 with regard to his identification of the accused in court only, in absence of any test-identification parade, is of no avail since otherwise p.w. 6, who was present at the spot has categorically stated to have seen the accused firing a shot from his pistol at p.w. 7 causing the injuries, inasmuch as, he also caught hold of the accused-petitioner while the other accused fled away. p.w. 5 similarly has stated that hearing the sound when he came out of his house, he saw his sahi people have captured the accused-petitioner and the injured was lying on the ground. the evidence of p.w. 7 has been thoroughly corroborated by the evidence of p.ws. 5 and 6. the contention of the learned counsel that in absence of mens rea, the prosecution story is doubtful, is of no assistance to the accused-petitioner, because it is the prosecution case that the other co-accused, anil sen since acquitted, bore a grudge on p.w. 7, he having informed the police about possession of pistol and that he had identified the injured to his friends, the present petitioner and the other. 7. in any view of the matter, i do not find any cogent reason to interfere with the concurrent finding, of the courts below holding the petitioner guilty of the offence. however, the learned counsel for the petitioner submits that the petitioner has been convicted for commission of offence under section 324, ipc along with section 27 of the arms act and he has already in custody for more than one year and, therefore, this court may consider reduction in sentence. the offence was committed in the year 1993 and in the mean time long years have passed. keeping in view the nature and gravity of offence, the injury caused, the facts and situation of the case and that the petitioner is already in custody for little more than a year, i feel that it will not be in the interest of justiceto send the accused-petitioner to jail to serve the balance sentence. in such view of the matter, i am inclined to reduce the sentence to the period undergone. it is ordered accordingly. the lower court records be sent back.