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Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.255 of 2007 (In the matter of an appeal under Section 374 of the Code of Criminal Procedure, 1973) Guru Dalei & Others ……. Appellants -Versus- State of Orissa …… Respondent For the Appellants : Mr.Ashok Kumar Jena, Advocate For the Respondent : Mr.A.K. Apat, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 24.07.2025 :Date of Judgment: 19.08.2025 S.S. Mishra, J. This criminal appeal is directed against the judgment dated 13.04.2007 passed by the learned Additional Sessions
Legal Reasoning
Judge, Boudh in Sessions Trial No. 61 of 2005 arising out of G.R. Case No. 214 of 2003 corresponding to Harabhanga P.S. Case No. 28 of 2003, whereby the present appellants namely Guru Dalei, Mangulu Dalei, and Babula Dalei were convicted for the offences punishable under Sections 148 and 324/149 of the Indian Penal Code (IPC) and sentenced to pay a fine of Rs. 1000/- for each of the said offences and in default, to undergo Simple Imprisonment for six months. The rest of the accused persons including four female members of the family were treated under Section 3 of the Probation of Offenders Act, 1958. 2. Pursuant to the order dated 17.07.2025, the I.I.C., Harabhanga Police Station has submitted a written report dated 23.07.2025, inter alia stating that appellant no.1 – Guru Dalei and appellant no.2 – Mangulu Dalei have expired. Accordingly, the present appeal qua appellant nos. 1 and 2 stands abated. The report is already on record. 3.
Legal Reasoning
Heard Mr. Ashok Kumar Jena, learned counsel for the appellants and Mr. A.K. Apat, learned counsel for the State. 4. The prosecution case in brief is that on 22.08.2003 at about 5:30 P.M., the appellants along with others, being members of a family, armed with various weapons, formed an unlawful assembly and attacked one Dusasana (P.W.5), the son of the informant (P.W.1), near a village tube well at Sankuri, P.S. Harabhanga, District Boudh. The alleged motive behind the assault was a prior grudge arising out of objections raised regarding tying buffaloes near the roadside affecting Page2 of 10 village sanitation. It is alleged that Guru Dalei was armed with an axe, Mangulu Dalei with a crowbar, and Babula Dalei with an iron rod, while others were similarly armed, they attacked and injured P.W.5. 5. Upon hearing the commotion, two co-villagers, namely Susanta Sahu (P.W.6) and Sankar Mohapatra (P.W.7), who were returning from the market, attempted to intervene and were also assaulted by the accused persons, causing them bleeding injuries. Other villagers subsequently arrived at the spot, following which the accused persons allegedly fled away, issuing threats of dire consequences. 6. The FIR was lodged on 23.08.2003 by the informant, citing his preoccupation with the treatment of the injured persons at PurunaKatak Hospital and then at Boudh Hospital as the reason for the delay. 7. The police, after completion of the investigation, submitted a charge-sheet under Sections 147, 148, 341, 323, 307, 506, and 149 IPC. The case was committed to the Court of Session, where charges were framed, and the trial commenced. 8. The learned trial Court, after examining eight prosecution witnesses and considering the evidence of the Doctor (P.W.4), came to Page3 of 10 the conclusion that the offence under Sections 148 and 324/149 IPC stood proved against the three appellants. It acquitted all the accused persons under Sections 341, 323, and 506 IPC and also extended the benefit of Section 3 of the Probation of Offenders Act to the four female co-accused. The appellants were sentenced only with fine and not imprisonment, considering their age and absence of criminal antecedents. The relevant portion of the aforesaid judgment is extracted herein below:- “In the instant case the accused persons have been charged U/Ss. 148/341/323/307/506/149/147 I.P.C. The statement of the injured witnesses P.W.5 to P.W.7 do not reveal any material for the offence U/Ss.341 and 506 IPC Though all the injured persons have sustained injurues on the vital parts of their person, but the nature of injuries would not be sufficient to presume that thesame have been caused with an intention to commit murder and only attract the offence U/S.324 I.P.C. But there is no separate material for the offence for the offence U/S.323 I.P.C. Since the accused persons are members of one family, armed with weapons attacked P. W-5 and than P.W.6 and P.W.7 and the occurrence took place close to their house it reflects their common object for such attack and consequently the offences U/Ss. their 148/324/149 I.P.C. liability for In view of my above discussion, I hold that prosecution care beyond all has toestablish succeeded its Page4 of 10 reasonabledoubts in part. The accused persons are found not guilty of the offence U/Ss. 341/323/506/ I.P.C. and are acquitted of the said charge U/s. 235 (1) Cr.P.C. However at the same time they are found guilty U/s.148 and 324/149 I.P.C. are convicted thereunder. Since the convicts are found guilty of the offence U/s. 148 I.P.C. there is no necessity to make them liablefor the offence U/s. 147 I.P.C. Out of seven convicts, four are woman and two of them the background of previous are girls. Considering enimosity and absence of any of the creminal antecedent all the female convicts are released U/S.3 of the P.O. Act on due admonition. However, I do not incline to release the other accused persons on P.O. Act. Heard the convicts Guru Dalai, Mangulu Dalai, and Banula Dalai. Considering the background of previous enimosity and absence of any of the criminal antecedents, it would be just and proper to imposefine only, on convicts. Accordingly each of the convicts Guru Dalai, Manguly Dalai and Babula Dalai are sentenced to pay fine and in default to undergo S.I. for 6 months.” 9. In the present case, the conviction arises from an incident dated 22.08.2003 wherein the accused persons, including the present appellant Babula Dalei, were alleged to have formed an unlawful assembly and caused injuries to three persons, namely Dusasana (P.W.5), Susanta (P.W.6), and Sankar (P.W.7), all of whom were examined as injured eye-witnesses. The Trial Court, after evaluating the ocular evidence and Page5 of 10 the medical opinion of the doctor (P.W.4), found the charges under Sections 148 and 324 read with Section 149 IPC to have been proved beyond reasonable doubt. 10. Although two prosecution witnesses (P.Ws.2 and 3) turned hostile, the trial Court rightly relied on the consistent and corroborated version of the injured witnesses whose testimony found support in the medical evidence. The injuries, though simple in nature, were inflicted on vital parts of the body and clearly reflect a premeditated assault. 11. However, it is noted that the other two appellants i.e. Guru Dalei and Mangulu Dalei, have passed away during the pendency of the appeal, and thus, the appeal against them has abated. The present judgment is confined to the surviving appellant, Babula Dalei. 12. Coming to the quantum of sentence, this Court is mindful of the fact that the occurrence took place over 22 years ago, and the appellant has faced the rigours of criminal proceedings and undergone the mental agony of trial and appeal for more than two decades. There is no allegation of any subsequent criminal activity against him. Further, the sentence imposed by the learned trial Court was limited to a fine of Rs. Page6 of 10 1000/- for each offence, with a default clause of six months’ simple imprisonment, which indicates that the Court below had already considered mitigating factors including absence of prior criminal antecedents. 13. The appellant has, as submitted, already undergone a substantial portion of the sentence during the period of investigation, trial, and pending appeal, and there appears no fruitful purpose to be served by requiring further incarceration at this belated stage.It is a settled principle that the prolonged pendency of criminal proceedings and the age of the accused may constitute valid grounds for revisiting and mitigating the sentence.In Rajesh Kumar v. State (through Govt. of NCT of Delhi), reported in 2011 AIR SCW 5997, the Hon’ble Supreme Court emphasized the importance of considering mitigating circumstances, especially before imposing harsh sentences, and noted that courts should allow accused persons to present such factors for a reduced sentence, such as the possibility of reform and the circumstances surrounding the crime. The Hon’ble Supreme Court held thus- Page7 of 10 “56. Bhagwati, J., (as His Lordship then was) giving the judgment in Santa Singh (supra) pointed out and which was later on accepted in Bachan Singh v. State of Punjab [(1980) 2 SCC 684] that proper exercise of sentencing discretion calls for consideration of various factors like the nature of offence, the circumstances - both extenuating or aggravating, the prior criminal record, if any, of the offender, the age of the offender, his background, his education, his personal life, his social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of his rehabilitation in the life of community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others. After referring to all the aforesaid facts, the learned Judge opined as under: "3. ....................... These are factors which have to be taken into account by the court in deciding upon the appropriate sentence, and therefore, the legislature felt that, for this purpose, a separate stage should be provided after conviction when the court can hear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused. Hence the new provision in Section 235(2)."” 14. Having regard to the facts and circumstances of the case, this Court is of the considered view that the present appellant Babula Dalei deserves to be extended the benefit of Section 4 of the Probation of Offenders Act, 1958. It is not in dispute that he was a young man at the Page8 of 10 time of the occurrence, had no prior criminal antecedents, and the incident occurred more than 22 years ago. There is no material on record to show any involvement of the appellant in any offence post- conviction. 15. In the present case, although the conviction under Sections 148 and 324/149 IPC stands affirmed, the nature of injuries caused was simple, and the weapons used by this appellant were not lethal. In such circumstances and considering that the trial Court had already extended the benefit of probation to similarly placed female co-accused, this Court is of the view that no useful purpose would be served by sending the appellant to prison at this belated stage. 16. Accordingly, while affirming the conviction of the appellant Babula Dalei under Sections 148 and 324/149 IPC, he is released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958, for a period of three months on his executing bond of Rs.5,000/- (Rupees Five Thousand) within fifteen days 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 Page9 of 10 keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of three months. 17. With the above observation, the CRLA is accordingly disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 19th August, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 21-Aug-2025 10:22:37 Page10 of 10