The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 378 of 2005 (In the matter of an application under Section 374 (2) of Criminal Procedure Code) Sk. Wahed Ali ……. Appellant -Versus- State of Orissa ……. Respondent
Legal Reasoning
For the Appellant : Mr. Saswat Jena, Advocate on behalf of Mr. Samvit Mohanty, Advocate For the Respondent : Mr. Raj Bhusan Dash, A.S.C CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 15.07.2025 : Date of Judgment:31.07.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Sections 374(2) of the Cr. P.C., is directed against the judgment dated 31.08.2005 passed by the learned Addl. Sessions Judge (F.T.C), Jagatsinghpur in Sessions Trial No.04 of 2005 (S.T. No. 5 of 2005), whereby the appellant was convicted of the offences under Sections 323 of I.P.C. and he was sentenced to undergo S.I. for three months, and pay a fine of Rs.250/- and in default, further S.I. of one month. 2. Heard Mr. Saswat Jena, learned counsel for the appellant and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State. 3. The prosecution case in terse and brief, as revealed from the F.I.R. lodged by one Abdul Rahim Khan (Informant) is that on 15.09.2002 at about 7.00 A.M. while the informant was proceeding to his house at village Basantpur, along with his wife and children on the Basantpur- Asangagarh Road, at that time, one trekker bearing Registration No. OR- 05-9015 came speeding towards them and dashed against his wife with an intention to kill her. Resultantly, his wife sustained injury in her head, tongue, left leg, and chest and became senseless. At that time the driver of the vehicle, the accused appellant, slowed down the vehicle and abused the informant’s family in filthy language saying that “MAGIHA, BAHUT DINA PAINI BANCHIGALA, AAJI TUMA PARIBAR KU SAFA KARIDEITHANTI”. In furtherance he said that “you have seen Page 2 of 7 the result of giving evidence in G.R. Case No. 359/98”. Resultantly, the appellant stood charged U/s.294,323,341 & 307 of the Indian Penal Code. 4. In order to bring home the charges against the accused, the Prosecution examined as many as nine witnesses out of which P.W.1 was the victim , P.Ws.2, 6 & 7 were the independent witnesses, P.W.3 is the doctor, P.W.4 is the husband of the victim P.W.8 was the seizure witness and P.W.9 was the Investigating Officer. 5. Although the appellant stood charged for the offence punishable under Sections 294,323,341 & 307 of I.P.C. but the learned trial Court relying upon the evidence of the prosecution particularly the evidence of P.Ws.1, 4, 3 and 9 arrived at a conclusion that the appellant is guilty of offences punishable under Sections 323 of I.P.C. In lieu of the conviction under Section 323 of I.P.C., the appellant was sentenced to undergo S.I. for three months, and pay a fine of Rs. 250/- in default to undergo S.I. for one more month. The appellant has now preferred the present appeal under Section 374(2) of Cr.P.C. assailing the judgment of conviction and order of sentence dated 31.08.2005 passed by the learned Page 3 of 7 Addl. Sessions Judge (F.T.C), Jagatsinghpur in Sessions Trial No. 04 of 2005 (S.T. No.5 of 2005). For ready reference, Section 374(2) of Cr.P.C. reads as under:- “(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other court in which a sentence of imprisonment for more than seven years [has been passed against him or against any other person convicted at the same trial], may appeal to the High Court” Reading of the above provision makes it clear that the present appeal on the set of available facts is not maintainable. 6. This Court is alive to the aforementioned statutory position of law. However, taking into consideration the facts that the incident relates back to the year 2002 and the trial went on for about three years to only end up on 31.08.2005 and the appeal had been pending since 2005 onwards, this Court is not inclined to knock out the appeal on the technical ground as mentioned above particularly for the reasons that the learned trial Court by a deep analysis of the evidence brought on record has found the appellant guilty for the offences as mentioned above. 7. While analyzing the evidence on record, I find no reason to disagree with the findings written by the learned trial court, hence, I Page 4 of 7 affirm the conviction recorded against the appellant for the offence under Section 323 of I.P.C. 8. At this stage, Mr. Jena, learned counsel for the appellant submits that the appellant has already faced the ordeal of trial and the appeal has been pending for the last twenty years. Therefore, he may not be sent to custody to serve out the sentence at this belated stage. The incident relates back to the year 2002. At that point in time, the appellant was in his thirties. At present he must be in his fifties. He submitted that, over the years, he has led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating him 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 him but also upon his 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 appellant may be extended the benefit of the Probation of Offenders Act read with Section 360 Cr. P.C. Therefore, I am inclined to accede to the prayer made by Mr. Jena, learned counsel for the appellant. Page 5 of 7 9. Regard being had to the age of the appellant, his societal position, clean antecedents and the fact that the incident had taken place in the year 2002, I am of the considered view that the appellant is entitled to the benefit of the Probation of Offenders Act and Section 360 of Cr.P.C. Additionally, the case of the appellant is also covered by ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra1. 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 appellant to suffer imprisonment, this Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of three months on his executing bond 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 1 2012 (Supp-II) OLR 469 Page 6 of 7 and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of three months.
Decision
11. With the above observation, the CRLA is accordingly disposed of. The High Court of Orissa, Cuttack Dated the 31st July, 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: 01-Aug-2025 20:27:21 Page 7 of 7