The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK C.R.A. No. 106 of 1998 Nartu Kamesu & another Appellants Mr. M. Mishra, Advocate …. -versus- State of Odisha …. Respondent Mr. Shashanka Patra, ASC CORAM: JUSTICE CHITTARANJAN DASH Order No.
Decision
ORDER 12.02.2024 08. 1. Heard learned counsel for the Parties. 2. This Appeal is directed against the judgment and order dated 15.05.1998 passed by the learned District Judge-Cum-Special Judge, Ganjam-Gajapati-Berhampur in G.R. Case No.235 of 1995 wherein the two Appellants along with Nartu Gangulu faced trial having charged U/s.354/294/323/325/34 Indian Penal Code (herein after in short called the IPC) R/w. Section. 3(1) (x) of SC & ST (P.A) Act but found guilty in the offence only in the offence under section 323/325/34 IPC against the two Appellants before this Court who having convicted sentenced to undergo S.I for three months U/s. 323 of IPC and R.I. for one year U/s. 325 of IPC and further directed that the sentences are to run concurrently. The said two persons namely Nartu Kameshu and Nartu Kasi are, therefore, before this Court in Appeal. Page 1 of 6 // 2 // 3. The prosecution case as unfurled before the trial court in brief is that on the day of Dipavali in the evening of the year 1995 when some of the family members of the Informant (P.W.2) were sitting on the outer verandah of their house, the Appellants exploded one cracker (Chakra Bano). The said 'Bano' fell on the person of Kokuli Sethi, the daughter of the Informant. When the she (Kokuli) protested such action of Kameswar (the Appellant Kamesu), the two others abused her in obscene languages and came to the house of the Informant with Lathi. It is further alleged that the Appellant Kasi dealt a lathi blow on the right hand of Kokuli whereupon she sustained a fracture injury. Appellant Kameswar dealt lathi blow on the right hand of Bulu Sethi causing fracture on his dorsum aspect. He also dealt Lathi blow on the head of Shanti Sethi causing bleeding injury. The Informant took the injured persons to the local Hospital for treatment and lodged report with the Nuagaon Police Station. As the report revealed a cognizable offence, the Police treated the report as FIR, registered the same vide Nuagaon P.S. Case No. 119 of 1995 and proceeded with the investigation. 4. In course of the investigation the I.O. (P.W.7) re-examined the Informant and the witnesses, arrested the accused persons and forwarded them to the court, examined other witnesses, received the injury report and X-ray report and he made over the charge of investigation to S.I. Kapileswar Behera on his transfer, who submitted the charge-sheet. 5. The plea of the defense is one of complete denial and false implication. The prosecution, to bring home the charge examined seven witnesses. While P.W.1, P.W.3 and P.W.6 are the injured, Page 2 of 6 // 3 // P.W.2 is the father of the injured being the Informant. P.W.4 is an eye witness to the occurrence, P.W.5 is the doctor who examined the injured persons on police requisition and P.W.7 is the I.O. 6. The prosecution besides the oral evidence proved documentary evidence vide Exhibits.1 to 6. The learned trial court while believing the version of the injured witnesses as well as the Informant coupled with the opinion of the doctor found the prosecution case to be cogent in respect to the charge U/s. 323/325/34 of IPC held the offence U/s.354/294 and Under Section 3(1) (x) of SC & ST (P.A) Act not proved. 7. The learned counsel for the Appellants did not argue much on the merit of the case and simply submitted that the offences have not been made out as held by the trial court and the Appellants ought to have been acquitted, submitted that the Appellants be considered by extending the reformative provision under the Probation of Offenders Act. According to the learned counsel Appellants have no criminal antecedents to their credit and are first offenders. He also submitted that the incident admittedly to be arising out of of a trivial issue. 8. The learned counsel for State on the other hand supported the impugned judgment passed by the learned trial court and submitted that the witnesses are consistent and coherent in respect to the factum of incident, the assault made on the injured so also the injuries having been proved by the doctor, the findings recorded by the learned trial court is legal and justified. Page 3 of 6 // 4 // 9. Upon perusal of the impugned judgment, as well as the evidence, it is indeed correct to accept that the witnesses have consistently and coherently deposed to the factum of incident supporting the prosecution case with regard to the date, time and place of the incident and the manner in which the Appellants exhorted assault on them causing the injuries. The doctor (P.W.5) who treated the injured found injuries described in his shown testimony reproduced as follows:- “I examined Smt. Santi Sethi wife of Ujala Sethi of village Bhramarpur and found the following injuries: Abrasion on right scalp parietal region of size 1" x 1/2" x 1/4". The injury was simple in nature and might have been caused by blunt force. The age of the injury at the time of my examination was 1/2 an hour to one hour. Same day on police requisition I examined Kokuli Sethi daughter of Arjuna Sethi of village Bamannuapda and found the following injuries. Bruise on right forearm 3" x 2". Fracture of the bone beneath the injury was suspected. On the same day, I examined on police requisition Bulu Sethi son of Arjuna Sethi of village Bamannuapda and found the following injuries. Bruise on the right hand dorsal aspect 2"x1" Fracture was suspected beneath this injury. Page 4 of 6 // 5 // 10. Having regard to the statement of the injured witnesses coupled with the evidence of the doctor, identity of the Appellants being not controverted, there is absolute nothing to dispute that the Appellants did cause assault on the injured and the same is consistent with the ingredients necessary to constitute the offence U/s. 323/325 of IPC. The manner in which the offence has been committed being in sequel there is clear evidence that the Appellants conducted themselves in furtherance of their common intention attracting the provision U/s. 34 of IPC too. 11. This Court, therefore, concurred with the findings of the learned trial Court. However, having regard to the sentence since the incident took place about thirty years back and the Appellants have all along being on bail barring a few days that they spent in custody and above all the matters which is germane to a trivial issue, it is worth to consider the prayer of the learned counsel for the Appellants to extend the provision of benevolent legislation. 12. Accordingly, this Court by exercising powers conferred under Section 4 of the Probation of Offenders Act, 1958 feels it appropriate to modify the sentence imposed by the learned trial court to the extent that both the Appellants, who are already on bail granted by this Court shall be released under section 4 of the Probation of Offenders Act, 1958 for a period of two years on their executing bond of Rs. 5000/- thousand each with two securities each for the like amount before the learned trial court/ court in seisin to appear and receive sentence when called upon during such period of probation and in the meantime they shall keep peace and be of good behavior. Page 5 of 6 // 6 // 13. The Appellants shall be under the Supervision of the concerned Probation Officer during this period. 14. The Appeal stands disposed of with the above term. Judge (Chittaranjan Dash) Bijay Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 16-Feb-2024 18:14:39 Page 6 of 6