The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.573 of 2014 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) Babuli Rout ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. N.P. Parija, Advocate For the Opposite Party : Mr. Sashanka Patra, Additional Government Advocate CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 21.06.2024 : Date of Judgment: 16.07.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 of Cr.P.C. is directed against the judgment and order dated 01.03.2014 passed by the learned Additional Sessions Judge, Keonjhar in Criminal Appeal No.38/57 of 2013-09, whereby the judgment of conviction and order of sentence passed by the learned S.D.J.M., Keonjhar in G.R. Case No.988 of 2003 has been confirmed. 2. The prosecution case in brief is that on 03.12.2023 at about 11 A.M., when Bijay Kumar Mohanty, Range Officer, Swampatna and other staff were conducting patrolling duty near Khajurapat High School, they found that the accused persons were going by two bicycles with ten numbers of Sal Pata near Khajurapat High School under Turumunga Police Station. The Range Officer stopped his motor cycle and asked them as to why they were carrying wood in their cycle and demanded to show any document of transportation. The accused persons got down from their bicycles and abused the Ranger Officer in obscene languages and threatened to kill him. Accused Babuli Rout picked up a stone weighing about ½ kg and told him that “don’t you know I am the grandson of Jogi Rout of Rajnagar and if you will restrain us on any other day, I will kill you”. Saying so, Babuli Rout caused injuries on his shoulder. Thereafter, the accused persons fled away from the spot. On the basis of such allegation, F.I.R. was lodged and after completion of the investigation, charge-sheet was submitted against the Page 2 of 9 petitioner along with other accused persons under Sections 341/294/332/506/34 of IPC. The learned trial court framed charges against all the accused including the petitioner and were put to trial. 3. The learned trial Court analyzed the entire evidence on record and found that the Petitioner is guilty of committing the offence under Section 332/34 of I.P.C and sentenced him to undergo S.I. for eight months for the offence under Section 332 of I.P.C. 4. The judgment of conviction and sentence dated 03.08.2009 passed by the learned S.D.J.M., Keonjhar in G.R. Case No.988 of 2003 was called in question by filing Criminal Appeal No.38/57 of 2013-09 before the Court of the learned Additional Sessions Judge, Keonjhar, by the petitioner. 5. Having failed in his appeal, the petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. 6. Heard Mr. N.P. Parija, learned counsel for the petitioner and Mr. Sashanka Patra, learned Additional Government Advocate for the State. Page 3 of 9 7. Perused the impugned judgment and order of conviction and sentence passed against the petitioner and meticulously evaluated the evidence on record. 8. The present petitioner along with one Bhramarbar Munda was charged for commission of alleged offence under Sections 341/294/ 332/506/34 I.P.C. 9. The prosecution in order to bring home the charges has examined six witnesses. P.W.3 was the informant whereas P.W.2 claimed to be the eye-witness who accompanied the informant. P.W.1 was also stated to be one of the witnesses to the occurrence whereas P.Ws.4 and 5 were the I.Os. in the case. The prosecution has emphatically relied upon the testimonies of P.W.3 and P.W.2. The trial court after thorough analysis of the version of P.Ws.3 and 2 has partly believed the same and went on to record the following findings: “8. P.W.3 has not stated if he was wrongfully restrained by any of the accused. There is no evidence on record if accused had caused wrongful restraint to any one. Hence, prosecution has failed to prove the offence u/s.341/34 I.P.C. against the accused persons. 9. It is the evidence of P.W.3 that accused persons uttered abusive words like “Sala Magiha”. P.W.2 has also stated that the accused persons uttered abusive words that “Sala Magiha”. The above words Page 4 of 9 are abusive words but unfortunately prosecution has failed to show annoyance if any caused to anybody due to utterance of those abusive words. Hence, prosecution has failed to prove the offence u/s.294/34 I.P.C. against the accused persons. 10. P.W.3 in his evidence has stated that accused threatened to kill him. But he has not stated if he was alarmed due to such threatening. There is also no evidence to show that the threatening was intended by the accused persons to cause alarm to any one with intent to compel any person to omit to do any act. The evidence on record falls short of proving the offence u/s.506/34 I.P.C.” 10. On the strength of the aforementioned findings, the trial court found that the prosecution could not prove its case to bring home the charges under Sections 341/294/506/34 I.P.C. against the accused persons. Accordingly, the accused persons were acquitted. However, the trial court was of the view that the testimony of P.Ws.2 and 3 are unshaken and trustworthy to rely upon to record guilt of the accused persons in so far as the offence under Section 332/34 I.P.C. is concerned. Accordingly, the petitioner along with co-accused was convicted for offence under Section 332/34 I.P.C. and sentenced them to undergo S.I. for eight months. The appeal filed by the present petitioner being Criminal Appeal No.38/57 of 2013-09 failed. The appellate court has confirmed the conviction and Page 5 of 9 sentence recorded by the court below for offence under Section 332 I.P.C against the petitioner. 11. Mr. Parija, learned counsel for the petitioner argued that the charges framed against the petitioner and co-accused for offence under Section 332 I.P.C. should have been in the separate head. However, the learned trial court has conjointly framed the charges. He contended that from the evidence of the witnesses, nothing is illuminating on record to show that the accused persons had knowledge that P.Ws.2 and 3 were public servants. In that view of the matter, the contention raised by the petitioner that separate charge ought to have been framed under Section 332 I.P.C. assumes importance. In order to establish the offence under Section 332 I.P.C., evidence should have been brought on record by the prosecution that the accused persons were aware that they were being confronted by the public servants while illegally carrying the timber. 12. I have carefully perused the evidence of P.W.3 and he categorically stated that when he along with P.W.2 confronted the accused persons while they were illegally carrying wood in their bicycles, they got down from the bicycles and abused them saying “SALA MAGHIA RANGER Page 6 of 9 KAGAJAPATRA MAGUCHU”. The said utterances by the accused persons lead to the only inference that they were aware that P.Ws.3 and 2 were the Forest Officers. Therefore, the contention raised by the petitioner in that regard may not hold any water. Moreover, the appellate court has dealt with this argument of the defence in paragraph-8 of its judgment which reads as under: record. It discloses “8. I did not find the charges prepared in separate sheet on from order No.27 separate heads on dtd.28.1.2009 in the order-sheet that charge was framed against the appellants U/ss.341,294,332,506,34 I.P.C. It is also mentioned therein that the contents of charge are read over and explained to the accused persons to which they plead not guilty and claim for trial. Though the charge is not prepared in a separate sheet, the accused persons/appellants are not in any way prejudiced by that as they were read over and explained the charges framed against them. So the argument of learned counsel for the appellants has got on substance.” 13. In view of the aforementioned discussion, I am not inclined to interfere in the conviction recorded by the court below in so far as the offence under Section 332 I.P.C. is concerned. 14. The learned trial court while sentencing the petitioner have rejected the prayer of the petitioner to extend the benefit of Probation of Offenders Act which is apparent from paragraph-12 of the trial court judgment, which reads as under: Page 7 of 9 “12. Now it is to be seen whether benefit of P.O. Act can be extended to the convicts. The act of the convicts was directed against Government servants in lawful discharge of his duties. If benefit of P.O. Act is extended then it would embolden the convicts to commit similar offence in future. If public servants are freely restrained from discharging their duties and the culprits would go scot-free then it would create very bad impact in the society. One of the object of imposing punishment is to create fear in the mind of culprits from doing offence. Hence, society requires from the Court that offenders should be punished, so that prospective offenders could be deferred from committing offence. Having regard to the nature, character, antecedent of the convicts, circumstance of this case, gravity of the offence, I am of the opinion that it is not a fit case to extend benefit of the P.O. Act to the convicts. Now they are to be heard on the question of sentence.” 15. Taking into consideration the fact that the incident had taken place in the year 2003 and the petitioner has already been acquitted for offence under Sections 341/294/506/34 I.P.C., I am of the considered view that the trial court ought to have extended the benefit of Probation of Offenders Act to the petitioner. The case of the petitioner is also covered by ratio of the judgment of this Court passed in the case of Pathani Parida and another vs. Abhaya Kumar Jagadev Mohapatra reported in 2012 (Supp.- II) OLR - 469. 16. In view of the aforementioned, the conviction of the petitioner is upheld, but instead of sentencing the petitioner to suffer incarceration, this Court directs that the petitioner be released under Section 4 of the Page 8 of 9 Probation of Offenders Act, 1958 for a period of one year on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence when called upon during such period. During the probation period of one year the petitioner shall keep peace and maintain good behavior and he shall remain under the supervision of the concerned Probation Officer.
Decision
17. The Criminal Revision is accordingly disposed of. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 16th July, 2024/Asish Kumar Kar, ADR-cum-Addl. Principal Secretary Signature Not Verified Digitally Signed Signed by: ASISH KUMAR KAR Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Jul-2024 11:43:12 Page 9 of 9