The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.83 of 1999 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Akshaya Bag and others ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Debi Prasad Dhal, Senior Advocate along with Mr. Anshuman Roy, Advocate For the Respondent : Ms. Suvalaxmi Devi, ASC CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 29.07.2025 :: Date of Judgment: 25.09.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants under Sections 374(2) of the Cr.P.C., is directed against the judgment and order dated 15.03.1999 passed by the learned Additional Sessions Judge, Titilagarh in Sessions Case No.41(B)/24 of 1998, whereby the learned trial Court while acquitting the Giridhari Bagarty, Amruja Bag, Jugeswar Bagarty and Baishnaba Chandra Sahu of all the charges, however found the present appellants guilty of the offences under Sections 148/323/149 read with Section 332/149 of I.P.C. and sentenced them to undergo R.I. for six months on each count. 2. Heard Mr. Debi Prasad Dhal, learned Senior Advocate along with Mr. Anshuman Roy, learned counsel for the appellants and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State. The appeal was heard at length on 29.07.2025. Although the parties were directed to file their respective written notes of submission, however, none of them have filed their written notes of submission. 3. The prosecution case in terse and brief is that on 13.10.1996 at about 5.00 P.M. in village-Ijagaon near Dwarasuni temple, the accused persons armed with lathi and iron rod obstructed the marriage procession of the deity Budharaja and on the intervention of the police official of Sindhekela P.S., who were on law and order duty there, they have assaulted them at the spot with weapon, for which they had sustained injuries on their persons. Page 2 of 8 4. On the basis of such allegation, Sindhekala P.S. Case No.41 of 1996 was registered against the appellants. After completion of investigation, the police filed the charge-sheet for the alleged commission of offences punishable under Sections 147/148/307/325/323/332/149 of I.P.C. Charges were framed against the accused and on their stance of denial and claim of trial, the accused persons were put to trial. 5. Out of twenty-three charge-sheeted witnesses, the prosecution in order to prove its case examined only ten witnesses. P.W.9 was the Officer-in-charge of Sindhekela Police Station and the informant so also the I.O. of the case. P.Ws.1 and 3 were the two police constables whereas P.W.4, was a Home Guard are the victims/injured. P.W.5 was a local resident and also an eye witness to the occurrence. P.W.2 was the Habildar of police and P.W.10 was the A.S.I. of Police and witness to the circumstances. P.Ws.6 and 7 were the two Gramrakhis and witnesses to the seizure. P.W.8 was the doctor, who had examined the injured persons. Page 3 of 8 6. The learned trial Court on the appreciation of evidence on record arrived at the following findings:- “12) Learned defence counsel urged to disbelieve the prosecution case high-lighting the noting in the F.I.R. on creation of disturbance at the spot by the scheduled tribes of village-Ijgaon when accused persons are not scheduled-tribes, late despatch of F.I.R. to Court, and discrepancy on weapons of offence held by accused persons and who assaulted whom and on which part. On plain reading of the F.I.R. it transpires that as per tradition of adivasis villagers of Ijgeon armed with lathies, swords and iron rods blocked the way of deity Budharaja to get some tips like liquor etc., some tribes of Ijgaon were in violent mood to create breach of peace and the accused persons committed the overt-act. So it is not to be inferred that the persons who committed the overt-act are adivasis, rather it would be just to conceive that while Adivasis were in violent mood to create breach of peace armed with weapons accused persons committed the overt-act as alleged. As is revealed from the order-sheet of connected G.R. Case the F.I.R. has been put up before the learned S.D.J.M.,. Titilaarh on 15.10.96 but date is missing below the initial of the learned S.D.J.M. on the F.I.R.. It is breathed by the I.O.-P.W.9 that on 13.10.96 he sent the F.I.R. to the Court and in that case maximum by 14.10.96 it was expected to be placed before the learned S.D.J.M. However one day delay in the natter is not counted much when prosecution case is well brought home otherwise. True there is discrepancy on use of weapons by the different accused persons when it is the evidence of P.W.1 that accused Akshya Bag had lathi Page 4 of 8 and accused Jihitu had iron rod. It is of P.W.3 that accused Nanu had iron rod rest accused persons had lathies and of P.W.4 that accused Aksaya Bag had iron rod, he having no knowledge on the rest accused persons armed with what weapons. Also there is discrepancy in their evidence on parts of their persons assault as detailed above. But such discrepancy is bound to occur when at that fateful hour of the month of October, then light must be insufficient and there was a crowd of about 1000 as is in the evidence of P.W.4, it must not have been possible to notice tit-bits of the alleged incident, more so it is difficult to recollect the incident in entirety at the time of examination in the Court more this contention of learned defence counsel is not acceptable. thereafter. Hence than 2 years 13)It is the F.I.R. story that the accused persons were shouting to finish the police personnel at the spot while assaulting them and that fact has been breathed only by P.W.1. In view of the silence of other witnesses on the point except P.W.2 who has breathed to have only heard that “Pito, Pito” and the simple injuries sustained by the injured persons there is no scope to hold that accused persons had intention to attempt on the lives of the police personnel. 14. From the above discussion, it is derived that prosecution has succeeded to bring home its case but only against accused persons Nanu, Ganesh, Sadhu, Jihitu, Akshya and Ugre that too only U/Ss. 148, 323/149 and 332/149 of I.P.C. 15. In the result, when being found guilty accused persons Nanu, Ganesh, Sadhu, Jihitu, Akshya and Ugre are convicted U/S. 148, 323/149 and 332/149 I.P.C. Page 5 of 8 Rest accused persons are acquitted, enjoying benefit of doubt.” 7. The accused persons were initially charged for the alleged commission of offences punishable under Sections 307/148/149 of I.P.C. However, the learned trial Court while acquitting some of the accused persons have convicted the present appellants only for the offences under Sections 323/148/149 of I.P.C. and they were sentenced to undergo R.I. for six months. 8. At the outset, learned counsel for the appellants has submitted that in so far as the conviction recorded against the appellants are concerned, he would not press the appeal. He would only confine his argument to the quantum of sentence imposed against the appellants. He further submitted that the incident relates back to the year 1996. At that point in time, the appellants were in their early thirties. At present they are in their late fifties and leading a respectful life along with their family. He further submitted that the appellants have no criminal antecedents and no other case of a similar nature or otherwise is stated to be pending against them. Over the years, they have led a dignified life, integrated well into Page 6 of 8 society, and is presently leading a settled family life. Incarcerating them after such a long delay, it is argued, would serve little penological purpose and may in fact be counter-productive, casting a needless stigma not only upon them but also upon their family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, in the fitness of situation, the appellants may be extended the benefit of Probation of the Offenders Act read with Section 360 Cr. P.C. 9. Having considered the submission of the learned counsel for the appellants and taking into consideration the entire conspectus of the matter, this Court while upholding the conviction recorded against the appellants for the offences under Sections 323/148/149 of I.P.C. modified the sentence to the extent that the appellants shall be released on the Probation of the Offenders’ Act. Over and above the same, the appellants are liable to pay a fine of Rs.3000/- (rupees three thousand) each, failing to deposit the fine amount, shall entail the appellants to undergo S.I. for fifteen days. The amount to be deposited by the Page 7 of 8 appellants shall be disbursed to the victim in accordance with the provision under Section 357 Cr.P.C. 10. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing the appellants to suffer imprisonment, this Court directs the appellants to be released under Section 4 of the Probation of Offenders Act for a period of three months on their executing bond of Rs.5,000/- (Rupees Five Thousand) each within one month with one surety each for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellants shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of three months. 11. With the above observation, the CRA is partly allowed. The High Court of Orissa, Cuttack. Dated the 25th September, 2025/ Swarna (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 26-Sep-2025 15:53:30 Page 8 of 8