The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.106 of 1992 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 29th February, 1992 passed by the in S.T. Case learned Additional Sessions Judge, Balasore No.19/128 of 1991. ---- 1. Jagdish @ Kuturi Mohanty; and 2. Himanshu Kumar Swain @ Chanduru -versus- …. Appellants State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants -
Legal Reasoning
Mr.G.C. Parija, N.P. Parija and L. Mishra (Advocates) For Respondent - Mr.G.N. Rout Additional Standing Counsel CORAM MR. JUSTICE D.DASH Date of Hearing : 27.06.2024 : Date of Judgment : 01.07.2024 D.Dash,J. The Appellants, by filing this Appeal, have called in question the judgment of conviction and order of sentence dated 29th February, 1992 passed by the learned Additional Sessions Judge, Balasore in S.T. Case No.19/128 of 1991. By the impugned the judgment of conviction and order of sentence, the Appellant No.1, namely, Jagdish @ Kuturi Mohanty CRA No.106 of 1992 Page 1 of 5 has been convicted for commission of the offence under section 323 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and Appellant No.2 Himanshu Kumar Swain @ Chanduru has been convicted for commission of the offence under section 324 of the IPC. Accordingly, Appellant (Jagdish) has been sentenced to undergo rigorous imprisonment for six (6) months and Appellant (Himanshu) has been sentenced to undergo rigorous imprisonment for one (1) year with the usual benefit of set-off. 2. Prosecution case is that some time before the Parliament Election held in the year 1991, the Informant, namely, Ramesh Chandra Mohanty (P.W.5) along with P.Ws.1 & 2 and others were fixing posters of the Political Party (BJP). While they were doing so, they came to Durga Mandap and wanted to paste posters on an electric pole standing nearby. This was objected to by the accused persons and thus they abused P.Ws.1, 2 & 5 in filthy language. It is further stated that despite that abuse when one of them (P.W.2) returned to to paste the posters, accused Jagdish caught hold of him and pressed his neck and also assaulted him. It is next stated that seeing this, when P.W.5 protested and came to his rescue, accused Himanshu gave a stab wound on his abdomen by means of sword, which resulted loss of sense after having received the fall. P.W.5 when lodged the information in writing (Ext.4) with the Officer-in-Charge (O.I.C.), Nilgiri Police Station (P.S.) at the CRA No.106 of 1992 Page 2 of 5 Hospital where they had gone for treatment, the same being treated as FIR, the criminal case was registered and investigation commenced. On completion of the investigation, the Final Form was submitted placing these accused persons with another, namely, Narottam @ Jaya Patra (since acquitted) to face the Trial for commission of the offence 307/323/341/294/34 of the IPC. 3. The Trial Court, upon examination of the evidence and their analysis, having acquitted accused Narottam, has held these accused persons guilty for the offence under section 323/324 of the IPC and sentenced, as indicated above. 4. Learned counsel for the Appellants (accused persons), from the very beginning, instead of questioning the finding of guilt against the accused persons, as has been returned by the Trial Court, submitted that the case had arisen because of the political rivalry between the two groups; members of the prosecution party on one and the accused persons on the other as they have affiliation to two political parties. He further submitted that the Appellants for some time have remained in custody and by now, having undergone the mental agony of a criminal trial for thirty- three years when no such report is forthcoming as regards their adverse conduct, and they are now earning their livelihood by doing petty business and cultivation and maintaining the family, further sentence of imprisonment upon the Appellants would CRA No.106 of 1992 Page 3 of 5 stand too harsh and that would in no way serve the interest of justice. 5. Learned Additional Standing Counsel for the Respondent- State, while submitting that the offence, i.e., 323/324 of the IPC for which the conviction has been recorded against the Appellants (accused persons) is punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both and shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, contended that the sentence of imprisonment for a period six (6) months and one (1) year, as has been awarded by the Trial Court commensurate the offence committed under that circumstance. 6. Keeping in view the submissions made, I have carefully read the impugned judgment of conviction and have also extensively travelled through the depositions of the witnesses (P.Ws.1 to P.W.10). 7. The Appellants (accused persons) stood charged for commission of the offence under section 307/323/341/294/34 of the IPC. Upon examination of the evidence of the witnesses examined from the side of the prosecution, the Trial Court has found the prosecution to have failed to establish the charge under section 307/341/294/34 of the I.P.C as against these accused CRA No.106 of 1992 Page 4 of 5 persons but has found the prosecution to have established its case against the Appellants (accused persons) under section 323/324 of the IPC. The Appellants (accused persons) hail from the rural background and as it appears, they have been undergoing mental agony of a criminal trial right from the year 1991 till now. Nothing is placed as regards their criminal antecedent and as the evidence would reveal, there was no prior planning behind the incident which took place suddenly under the situations coming to intervene. Cumulatively viewing of all these aforesaid, this Court is the view that the sentence of the period already undergone for committing the offence under section 323/324 of the IPC by these Appellants at this distance of time, would serve in the interest of justice and meet its ends. Accordingly, the Appellants’ conviction for the offence under section 323/324 of the IPC being confirmed; they are sentenced to the period already undergone. 8. In the result, the Appeal is allowed in part with the modification of the order of sentence dated 29th February, 1992 passed by the learned Additional Sessions Judge, Balasore in S.T. Case No.19/128 of 1991 to the extent as indicated above. Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Basu Date: 04-Jul-2024 14:56:15 CRA No.106 of 1992 (D. Dash), Judge. Page 5 of 5