The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.210 of 1995 Laxmidhar Behera and Others …. Appellants Mr. K.K. Dash, Advocate -versus- State of Orissa …. Respondent Mr. C.K. Pradhan, AGA COROM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 18.12.2024 11. 1. This matter is taken up through Hybrid Mode.
Legal Reasoning
2. Heard learned counsel for the parties. 3. The present appeal has been filed by the appellants challenging order of conviction and sentence passed against them by the learned 2nd Addl. Sessions Judge, Puri in S.T. Case No.21/169 of 1990. 4. The present appellants were convicted for the offences U/s.148,323 r/w Section-34 of the IPC. While they were convicted to undergo R.I. for 1 year for the offence U/s.148 of the IPC, they were convicted to undergo R.I. for 6 months for the offence U/s.323 r/w Section-34 of the IPC. // 2 // 4.1. It is however contended that during pendency of the appeal since appellant Nos.1, 3, 4 and 6 have died, the appeal was abated as against those appellants vide order dated 01.03.2024. It is the contention of the learned counsel for the appellant that the incident occurred on 27.01.1990 in between 2 communities of village Prachanda Nuagaon under Satyabadi block in the district of Puri. 4.2. It is contended that basing on the FIR lodged on 27.01.1990, the FIR was initially registered for the offence U/s.341/323/325/336/337/506/34 of the IPC. But in course of investigation when the deceased succumbed to the injury, the case was turned to a case U/s.302 of the IPC and accordingly all the accused persons including the present appellants faced the trial for the offence U/s.302 of the IPC and Section 148, 323 r/w Sec.34 of the IPC. It is contended that in order to prove the prosecution allegation, prosecution examined as many as 14 nos. of witnesses. 4.3. Placing reliance on the evidence so laid by the prosecution, learned counsel for the appellants contended that the deceased was mainly assaulted by accused Digambar and learned Sessions Judge basing on the materials placed before him, convicted the accused Digambar for the offence Page 2 of 6 // 3 // U/s.304(Part-II) of the IPC and convicted him to undergo R.I. for 7 years. It is contended that the appeal filed by the accused Digambar in Criminal Appeal No.214 of 1995 has abated as during the pendency of the appeal, Appellant-Digambar died. 4.4. Basing on the evidence laid by the prosecution, even though some materials were brought against appellant No.2-Trinath Behera but, none of the witnesses have specifically implicated the other appellants. 4.5. It is accordingly contended that in absence of any such overt act committed by Appellant Nos.5, 7 & 8 being brought to the notice, Appellant Nos.5, 7 & 8 could not have been convicted for the offences U/s.148,323 r/w Sec.34 of the IPC. It is further contended that even though some allegations were found against the appellant No.2-Trinath Behera and Appellant No.2 was convicted to undergo and sentence for 1 year for the offence U/s.148 and for 6 months for the offence U/s/323 read with Sec.34 of the IPC, but the said appellant has already undergone around 6 months of imprisonment during trial. 4.6. It is accordingly contended that taking into account the conviction and sentence imposed on appellant No.2, 5, 7 & 8 and the period of sentence Page 3 of 6 // 4 // undergone by appellant No.2, appropriate order be passed against the appellant Nos.2, 5, 7 & 8.
Legal Reasoning
5. Mr. C.K. Pradhan, learned Addl. Govt. Advocate on the other hand placing reliance on the statement of P.Ws., contended that the dispute though arose in between 2 (two) communities of the village on 27.01.1990 but all the P.Ws. specifically implicated accused Digambar to have committed the offence along with accused Trinath and Laxmidhar. 5.1. It is contended that even though taking into account the evidence so laid, learned Sessions Judge did not found material to convict the accused person, for the offences U/s.302 of the IPC, but accused Digambar was convicted for the offences U/s.304(Part-II) and all the other accused persons were convicted and sentenced for the offences U/s.148,323 r/w Sec.34 of the IPC. 5.2. It is however not disputed that appeal filed by the principal accused-Digambar in CRA No.314 of 1995 has been abated in the meantime due to his death. It is however contended that since materials are there against Appellant No.2-Trinath, the appeal filed by the Appellant No.2 is required to be rejected by confirming the order of conviction and sentence. Page 4 of 6 // 5 // 6. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that the alleged incident took place on 27.01.1990 and dispute arose because of the rivalry in between 2 (two) communities of the village. This Court after going through the evidence available on record, finds that allegation of assault which caused the death of the deceased was mainly made against accused- Digambar and the said accused was convicted and sentenced for the offences U/s.304(Part-II) of the IPC. This Court after going through the record, does not find any incriminating materials having been produced by the prosecution against appellant Nos.5, 7 & 8. Accordingly, this Court is inclined to set-aside the order of conviction and sentence passed against appellant Nos.5, 7 & 8 and set-aside the same. Appellant Nos.5, 7 & 8 be discharged from their bail bond also. 6.1. However, taking into account the materials available on record in respect of Appellant No.2, this Court while is not inclined to interfere with his order of conviction and sentence. But taking into account the fact that the offence is of the year 1990 and the appellant will be now more than 62 years, this Court directs for his release under the provisions of Probation of Offenders Act, 1958. This Page 5 of 6 // 6 // Court accordingly directs Appellant No.2 to appear before the learned 2nd Addl. Sessions Judge, Puri within a period of 1 (one) month from today. On his appearance, learned Sessions Judge shall do the needful by releasing Appellant No.2 under the Probation of Offenders Act, 1958. 7. With the aforesaid modification and direction,
Decision
the appeal stands disposed of. Judge (Biraja Prasanna Satapathy) Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Dec-2024 16:24:29 Page 6 of 6