The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.103 of 1998 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Tofan Das ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. D. P. Dhal, Senior Advocate For the Respondent : Mr. Raj Bhusan Dash, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 30.10.2025 :: Date of Judgment: 18.11.2025 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 15th May, 1998 passed by the learned Additional Sessions Judge, Balasore, in S.T. No. 12/55 of 1997, arising out of G.R. Case No. 418 of 1996 for the offence punishable under Section 323 of the Indian Penal Code and sentenced the appellant to undergo rigorous imprisonment for a period of six months. The appellant was, however, acquitted of the charges under Sections 294, 341, and 307 read with Section 34 of the Indian Penal Code. 2.
Legal Reasoning
Heard Mr. D. P. Dhal, learned Senior Advocate, for the appellant and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State. 3. The prosecution case, in brief, is that on 9th April, 1996, at about 5:30 a.m., when the informant, Rabindra Das (P.W.1), was proceeding along the village road, he was allegedly intercepted by the accused persons, including the present appellant. It was alleged that the accused persons abused him in obscene language, and that co-accused Umakanta Das brought out a bow and arrow from his house and handed over the same to the appellant, asking him to kill the informant. The appellant allegedly shot an arrow that struck the left side of the informant’s flank, causing bleeding injury. The informant thereafter lodged an F.I.R., Page 2 of 10 leading to investigation and submission of Charge-Sheet against the appellant and two others under Sections 294, 323, 341 and 307 read with Section 34 IPC. Charges were framed against all the accused for the offence, as mentioned above. 4. The defence of the appellant was one of complete denial and false implication owing to previous enmity. No witness was examined on behalf of the defence. 5. The prosecution examined four witnesses in all. P.W.1 was the injured informant, P.Ws.2 and 3 were post-occurrence witnesses, and P.W.4 was the Medical Officer, who examined the injured. 6. The learned trial Court, upon a detailed evaluation of the evidence on record, found that while the prosecution had failed to establish the charges under Sections 294, 341, and 307 read with Section 34 of the Indian Penal Code against the accused persons, the evidence of P.W.1, the injured informant, duly corroborated by the medical testimony of P.W.4, was sufficient to prove that the appellant, Tofan Das, had voluntarily caused simple hurt by shooting an arrow that struck the left Page 3 of 10 side of the informant’s chest. The learned trial Court accordingly acquitted the co-accused Umakanta Das and Baburam Das of all the charges and also acquitted the present appellant of the major offences but convicted him under Section 323 IPC for voluntarily causing hurt and sentenced him to undergo rigorous imprisonment for a period of six months. The relevant portion of the aforesaid judgment is extracted herein below for ready reference: - “13. As regards offence U/s.341 & 294 I.P.C. except the evidence of P.W.1 there is no other evidence to lead assurance or corroboration. P.W.1 did not spell out the obscene words used to evaluate its affect whether or not it was enough and intended to insult or cause annoyance to anybody near or at a public place. Therefore, it is held that the evidence of P.W.1 is not enough to establish the charge-U/s.294 & 341 read with section 34 I.P.C against the accused persons. So these charges are not brought home to the accused persons. 14. Now it is to be seen whether the charge U/s.323 read with section 34 I.P.C. or 307 read with section 34 I.P.C. was proved against the accused Tofan Das. The evidence was clear that P.W.1 was alone and there was none to intervene or dispede or discourage the accused persons to further assent P.W.1. Only one injury and that too by arrow was caused by accused Tofan Das. Had the accused intend to actually Page 4 of 10 murder P.W.1, he could have executed his intention in actual action by assaulting him. P.W.1 further either by arrow or by other means. In the back ground of the fact that there was no obstruction or interference against his attack on the informant. The only one injury could not have satisfy his intention of causing murder of the informant. On that consideration it can safely be concluded that actually causing death of the informant was not intended by the assailant Tofan Das. So the charge U/s.307/34 I.P.C. is not at all established against him. The nature of injury was simple and it was laceration. Though injury was caused by arrow it was not sharp cutting and punctured wound was not found. It was just simple voluntary hurt caused to the informant by accused Tofan Das. Therefore he is held guilty for causing hurt to the informant U/s.323 I.P.C. 15. The evidence as discussed above, does not implicate other two accused persons. Therefore, all the charges failed against the other two accused persons namely Umakanta Das and Baburam Das. 16. On the ultimate analysis of the evidence as discussed in the fore going paragraphs, it is held that the charges U/s.341/294/323/307/34 I.P.C. failed against accused Baburam Das and Umakanta Das and they are acquitted of the said charges. 17. The charges U/s.294/341/307/34 I.P.C. are not brought home to the accused Tofan Das and he is acquitted of the said charges. But the charge U/s. 323 I.P.C. is clearly proved against accused Tofan Das Page 5 of 10 and he is held guilty U/s.323 I.P.C. and convicted him there-under.” 7. Mr. Dhal, learned senior counsel appearing for the appellant, did not press the appeal on merits and confined his submissions to the quantum of sentence only. It was urged that the appellant had no previous conviction, that the occurrence is nearly three decades old, and that the injury caused was simple in nature. It was further submitted that the appellant has already suffered the rigors of trial and appeal for an unduly long period, and that in the facts and circumstances of the case, he may be extended the benefit of the Probation of Offenders Act, 1958. 8. I have carefully considered the submissions advanced by the learned counsel for the appellant as well as the learned counsel for the State, and perused the entire lower Court records, including the depositions of the prosecution witnesses and the reasoning assigned by the learned trial Court. 9. It is evident from the record that the learned trial Court, upon a detailed appraisal of the evidence, disbelieved the prosecution case as against the other two accused persons and also held that the ingredients Page 6 of 10 of the more serious charges under Sections 294, 341 and 307/34 IPC were not proved. The conviction of the appellant under Section 323 IPC rests substantially on the testimony of the injured informant, which stands corroborated by the medical evidence. The same, therefore, does not warrant interference by this Court on the question of guilt. 10. The only question that survives for consideration is with regard to the proportionality of the sentence. The record shows that the appellant is a first-time offender and there is nothing to indicate that he has been previously convicted of any offence. The nature of the injury, as found by the doctor (P.W.4), was simple, and there was no evidence of any premeditation or grave provocation. The alleged act appears to have been the outcome of a sudden quarrel. The appellant has faced the ordeal of criminal prosecution since 1996 and the appeal has remained pending for a considerable period of time. Having regard to these circumstances, I am of the considered view that this is a fit case where the appellant should be extended the benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958. Page 7 of 10 11. Section 4 of the Probation of Offenders Act, 1958 empowers the Court to release an offender found guilty of having committed an offence not punishable with death or imprisonment for life on probation of good conduct, instead of sentencing him to imprisonment, having regard to the circumstances of the case, the nature of the offence, and the character of the offender. In the present case, the offence under Section 323 IPC is punishable with imprisonment up to one year or fine or both, and the nature of the act, as well as the context in which it occurred, clearly brings it within the purview of Section 4 of the Act. 12. In Rattan Lal v. State of Punjab, reported in AIR 1965 SC 444, the Hon’ble Supreme Court held that the object of the Probation of Offenders Act is to reform the individual offender and to prevent the conversion of a youthful or first-time offender into a habitual criminal by subjecting him to prison life. It was held thus: - “The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below Page 8 of 10 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act.” 13. The occurrence in question pertains to the year 1996, and nearly three decades have since elapsed. During this long duration, the appellant has faced the protracted ordeal of criminal prosecution and appeal proceedings. Considering the passage of time and the absence of any subsequent criminal antecedents, this Court is inclined to take a lenient view in the matter of sentence. Therefore, while not interfering with the judgment of conviction recorded against the appellant for the offence as stated above, I am inclined to grant the benefit of the Probation of Offenders Act so as to suffice the sentence part. Page 9 of 10 14. Accordingly, while upholding the conviction of the appellant under Section 323 of the Indian Penal Code, the sentence of imprisonment imposed upon him by the learned Additional Sessions Judge, Balasore, is hereby set aside. Instead, the appellant is directed to be released on probation of good conduct for a period of six months under Section 4 of the Probation of Offenders Act, 1958, on his executing a bond for a sum of Rs.5,000/- (Rupees Five Thousand) within one month with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellant shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months. 15. Accordingly, the Criminal Appeal is partly allowed and disposed of. The High Court of Orissa, Cuttack. Dated the 18th of November, 2025/ Ashok (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 18-Nov-2025 19:06:34 Page 10 of 10