MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
`IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.53 of 2000 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 31.01.2000, passed by the learned Additional Sessions Judge, Bhadrak in S.T. No.34/126 of 1997. ---- 1) Santan Mallick (Dead) 2) Abhaya Mallick 3) Bijaya Mallick -versus- …. Appellants State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr. Gouri Sankar Pani Advocate For Respondent - Mr. P. K. Maharaj Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 20.09.2024 :: Date of Judgment: 24.09.2024 The Appellants, by filing this Appeal, have assailed the judgment of conviction and the order of sentence dated CRA No.53 of 2000 {{ 2 }} 31.01.2000, passed by the learned Additional Sessions Judge, Bhadrak in S.T. No.34/126 of 1997, arising out of G.R. Case No.1256 of 1996, corresponding to Basudevpur P.S. Case No.122 of 1996, of the Court of learned Sub Divisional Judicial Magistrate (SDJM), Bhadrak. The Appellant No.1 (accused) had been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘IPC’) and he had been sentenced to undergo imprisonment for life. The other two Appellants, namely, Abhaya and Bijaya have been convicted for commission of offence under section 341/323/34 of the IPC. Accordingly, each of them has been sentenced to undergo simple imprisonment for a period of one (1) month for the offence under section 341 of the IPC and rigorous imprisonment for six (6) months for the offence under section 323 of the IPC with the stipulation that the said sentences would run concurrently. 2. It would be pertinent to state at this stage that the Appellant No.1 having died way back on 17.05.2005 and as no step was taken from the side of the remaining Appellants, who are his sons nor any other near relations of that Appellant No.1 to further pursue the Appeal on his behalf, the Appeal has been dismissed as against him as to have abated. Thus, the present CRA No.53 of 2000 {{ 3 }} Appeal is confined to the Appellants No.2 & 3, namely, Abhaya Mallick and Bijaya Mallick. 3. Prosecution case is that on 25.09.1996, around 9 p.m., these two Appellants as well as the deceased-Appellant (Sanatan) in furtherance of their common intention wrongfully restrained one Sambhunath Mallick and his brother Gajendra Mallick and they assaulted Sambhunath, Gajendra and their father Bhagaban by lathi and other weapons. In the said incident, all these Appellants intentionally caused the death of Bhagaban by assaulting on his head and assaulted others, namely, Gajendra and Sambhunath, causing simple injury after having wrongfully restrained them. All the Appellants had faced the trial standing charged for commission of offence under section 341/323/302 read with section 34 of the IPC. 4. The Trial Court upon examination of the evidence of nine prosecution witnesses as also the two examined from the side of the defence and their evaluation, while perusing the documentary evidence let in by the prosecution, has acquitted these two Appellants, who are presently pursuing this Appeal, i.e. Abhaya and Bijaya of the charge under section 302/34 of the IPC and instead they had been held guilty for commission of the offence under section 341/323/34 of the IPC and accordingly, sentenced as aforestated. CRA No.53 of 2000 {{ 4 }} 5. Learned counsel for the Appellants (Abhaya and Bijaya) from the beginning without questioning the conviction of these Appellants under section 341/323/34 of the IPC on merit confined his submission as to modification of the sentence. He submitted that the incident having taken place in the year 1996 by now, there has been lapse of about 28 years and both the Appellants are aged 50 plus. He further submitted that these two Appellants were on bail during trial and also, they are enjoying the liberty during pendency of this Appeal when no report is forthcoming that they had misused the liberty at any time during these periods indicating therein that they had indulged in any sort of criminal activity. He thus submitted that at this distance of time when these two Appellants are living peacefully having cordial relationship with the co-villagers and maintaining their family members who are dependents upon them since they have remained in custody for two months and seven days, the sentence of imprisonment for the said offences for which they have been convicted if reduced to the period already undergone would meet and serve the ends of justice. 6. Learned counsel for the State-Respondent refuting the above submission contended that for the role played by these accused persons, sentence imposed by the Trial Court is just and proper. CRA No.53 of 2000 {{ 5 }} 7. Keeping in view the submissions made, we have carefully read the judgment of conviction impugned in this Appeal. We have also gone through the depositions of all the witnesses P.W.1 to P.W.9. We have also perused the documents which have been admitted in evidence and marked Exhibits. 8. Addressing the submission limited to the question of sentence, we find from the evidence that the incident had taken place on 25.09.1996 and thus there has been lapse of about 28 years by now. These Appellants at the time of commission of the offence were 27 and 21 years of age respectively. Thus Appellant Abhaya is aged about 55 years and the other Appellant Bijaya is nearing 50. They being arrested on 12.11.1996 were released on bail on 19.01.1997, which was during the trial. It reveals from the record that they having remained in custody for about two months and seven days have served the sentence to that extent. The incident as it emerges from the evidence was not with any prior planning and it had happened all of a sudden. These Appellants as per the Trial Court’s finding had not acted in furtherance of the common intention with that of deceased Appellant-Sanatan in causing the death of Bhagaban. The finding of the Trial Court for commission of the offence under section 302 of the IPC is against Appellant Sanatan, having died, the Appeal does no more survive insofar as said accused is concerned. No report is placed that these Appellants having enjoyed the liberty CRA No.53 of 2000 {{ 6 }} for such long period have ever misused the same by indulging in any criminal activity. It is stated that these Appellants are now living peacefully and maintaining their family by doing cultivation and labour. As per the evidence, for the role of these two Appellants, simple injuries have been sustained by the injured persons. Taking all these factual settings and other relevant factors into account at this distance of time, we are of the considered view that for the conviction of these Appellants of the offence under section 341/323 of the IPC, imposition of the sentence of imprisonment for the period already undergone would serve and meet the ends of justice. 9. Accordingly, the Appeal in respect of the Appellant, namely Abhaya and Bijaya is allowed in part. The conviction of these two Appellants, namely, Abyaya and Bijaya being confirmed under section 341/323/34 of the IPC, they are hereby sentenced to the imprisonment for the period already undergone. 10. These Appellants, namely, Abhaya and Bijaya being on bail; their bail bond shall stand cancelled. (V. Narasingh) Judge (D. Dash) Judge Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 26-Sep-2024 11:11:50 Gitanjali CRA No.53 of 2000