The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.817 of 2014 (In the matter of an application under Section 397 read with Section 401 of the Criminal Procedure Code, 1973) Dasarathi Behera & others ……. Petitioners -versus- State of Orissa ……. Opposite Party For the Petitioners : Mr. A. Tripathy, Advocate For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 01.08.2024 : Date of Judgment: 29.10.2024 S.S. Mishra, J. The present Criminal Revision Petition, filed by the petitioner under Section 397 read with Section 401 of Cr.P.C., is directed against the judgment and order dated 19.08.2014 passed by the learned Additional Sessions Judge-cum-Special Judge (Vigilance), Phulbani in Criminal Appeal No.11 of 2013, whereby the judgment of conviction and order of sentence dated 31.01.2012 passed by the learned Assistant Sessions Judge, Phulbani, Kandhamal in S.T. No.24 of 2008 (S.T. No.70 of 2008 (DC)) has been modified while partly allowing the appeal. 2. The case of the prosecution, in brief, is that the accused persons were in possession of the land recorded in the name of Lingaraj Behera, the father-in-law of the complainant since long. The complainant had earlier lodged a case before the Sub-Collector. On the direction of the Sub-Collector, the petitioners-accused had vacated the possession over the said land. However, frightening her father-in-law every now and then, the petitioners pick up quarrel and threaten. On 23.03.2006, at about 4.00 P.M., while the informant and her family members were discussing their next course of action, the accused persons came to their house armed with a knife, axe and thenga and threatened. When the husband of the informant went out, they surrounded him, and Akhay pierced a knife and her husband caught hold of Akhay to save his life. Dasarathi assaulted on his leg by an axe and when the informant was going to stop further attack on her husband, Jubati assaulted her by hitting on her head with an axe, but she sustained less injury on her head by averting the same by her hand, whereas her husband sustained injury Page 2 of 9 on his leg. A report in that regard was given before the Phiringia Police Station. On the basis of such allegation, the police registered an F.I.R., i.e., Phiringia P.S. Case No.26 of 2006 and after the completion of investigation, the charge sheet was submitted against the petitioners. 3. To bring home the charges, the prosecution examined altogether eleven witnesses and exhibited seven documents. The plea of defence was that of complete denial. In proof of their plea, no evidence was adduced from the side of the defence. 4. The learned trial Court analyzed the entire evidence on record and found the petitioner Nos.1 and 8 guilty of the offences under Sections 148/307 of the IPC and also found rest of the petitioners guilty of the offences under Sections 148/307/149 of the IPC. However, the offences under Sections 147/324/326/447/149 of the IPC being not established against the said petitioners, they were acquitted. Petitioner Nos.1 & 8 were sentenced to undergo R.I. for one year under Section 148 of the IPC and R.I. for five years and to pay a fine of Rs.1,000/-, in default, to undergo further R.I. for three months under Section 307 of the IPC and Page 3 of 9 the learned trial Court sentenced the rest of the convicts to undergo R.I. for one year for the offence under Section 148 of the IPC and R.I. for five years and to pay a fine of Rs.1,000/-, in default, to undergo further R.I. for three months under Section 307 IPC read with Section 149 of the IPC. All the sentences were directed to be run concurrently. 5. The judgment of conviction and sentence dated 31.01.2012 passed by the learned Assistant Sessions Judge, Phulbani in S.T. Case No.24 of 2008/ S.T. No.70 of 2008 (DC) was called in question by filing Criminal Appeal No.11 of 2013 before the Court of learned Additional Sessions Judge-cum-Special Judge (Vigilance), Phulbani by the petitioners. 6. Since the appeal failed, the petitioners challenged the judgments/orders of conviction and sentence of both the Courts below in the present Criminal Revision Petition. 7. Heard Mr. A. Tripathy, learned counsel for the petitioners and Mr. B.K. Ragada, learned Additional Government Advocate. 8. Perused the impugned judgment of conviction and order of sentence passed against the petitioners and meticulously evaluated the evidence on record. Page 4 of 9 9. All the eleven petitioners/accused persons were charged for the offences punishable under Sections 147/148/307/324/326/447 read with Section 149 of the IPC and were subjected to trial for the said offences. The prosecution examined eleven witnesses to establish its case. 10. P.W.2 was the victim/informant, and P.W.10 was another victim and husband of P.W.2. P.Ws. 1, 3, 4, 5, 6 and 7 were the independent witnesses examined by the prosecution to draw corroboration with the evidence of the victims. P.Ws.9 and 11 were the I.Os. and P.W.8 was the doctor, who examined all the witnesses. 11. The learned trial Court relied upon the testimony of the victims, i.e., P.W.2 and P.W.10 and the testimony of the Doctor- P.W.8, and found the petitioner No.1- Dasarathi Behera and petitioner No.8 - Jubati Behera guilty for the offences under Sections 148/307 of the IPC, whereas the other accused persons were held guilty for the offences under Sections 148/307/149 of the IPC. Insofar as the other offences are concerned, all the accused persons stood acquitted. The learned trial Court awarded various sentences on every count. The substantive sentence awarded by the learned trial Court was five years R.I. Page 5 of 9 12. The appellate Court vide judgment dated 19.08.2014 although rejected the appeal, but modified the conviction and sentence passed against all the accused persons. The relevant would be to reproduce Paragraph-11 of the judgment, which reads as under: “11. In this case, as stated by the witnesses, Dasarathi dealt a blow on the leg of Ghasiram, who fell down. There was a scope on the part of Dasarathi to deal successive blows on Ghasiram (P.W.10), when he fell down, on the vital part of the body. Dasarathi having not done so, it can be safely concluded that he had no intention of cluasing death of Ghasiram. Similarly, Jubati dealt only one blow on the head of Sasmita PW2, when she was trying to lift her husband. All other accused persons were armed with deadly weapons. None of them acted promptly, to cause further assault on PW2 or PW 10. This clearly indicates that the accused appellants had no intention to commit murder of P.W.2 or P.W.10. The evidence clearly suggest that due to previous enmity, the accused persons by forming an unlawful assembly with the common object of using force had gathered near the house of the informant and in prosecution of the common object of the unlawful assembly Dasarathi and Jubati assaulted Ghasiram and Sasmita causing grievous and simple injuries. As such the evidence clearly proves that all the accused persons due to their previous enmity, by constituting an unlawful assembly, came to the scene of occurrence, armed with lethal weapons like axe and lathi challenged PW 10 and when he and PW 2 came out of the house, Dasarathi and Jubati the member of the unlawful assembly, assaulted them by axe causing grievous and simple injuries. When all the accused persons being armed, had emerged in a body at the scene of occurrence and appellant Dasarathi and Jubati did the overt act of assault, all the appellants are found guilty of committing simple and grievous hurt in prosecution of the common object of the said assembly. Accordingly, all the appellants are held guilty for committing offence punishable u/s148, 324 and 326 IPC read with Section Page 6 of 9 149 IPC. The judgment of conviction is accordingly modified. Hence ordered.” 13. All the accused persons were sentenced on each count for having been convicted by the learned appellate Court for the offences punishable under Sections 148/324/326 read with Section 149 of the IPC instead of the offence under Section 307 of the IPC. The appellate Court passed the following sentence: “The appeal be and the same is dismissed with certain modifications. The judgment of the trial court is confirmed and modified to the extent that the appellants are guilty for committing offences u/s 148, 324 and 326 read with Section 149 IPC. They are sentenced to undergo RI for six months each for the offence u/s 148 IPC. All the appellants are again sentenced to undergo RI for six months each for the offence punishable u/s 324/149 IPC. At the same time all the appellants are sentenced to undergo RI for six months each and to pay of fine Rs.1,000/- (one thousand) each, in default of payment of fine to undergo further RI for one month each for the offence punishable u/s 326/149 IPC. Sentences are to run concurrently.” 14. Eleven accused persons have jointly preferred the present Revision Petition assailing the judgment of conviction and order of sentence passed by the learned appellate Court. During pendency of the present revision petition, two accused persons, namely, petitioner No.5 & 8 have expired. Therefore, the present revision petition stands abated in respect of the said petitioners. Page 7 of 9 15. At the outset, learned counsel for the petitioners submitted that he will not argue the matter on merits, rather confined his case to quantum of sentence. He further submitted that, at the stage of trial, after being convicted, the petitioners prayed for grant of benefit under the P.O. Act. The learned trial Court, without considering the same, rejected the prayer, inter alia, stating as under: “Considering the nature of the crime and the manner of its commission, I am not inclined to extend the provision of the Probation of Offenders Act in his favour.” 16. Learned counsel for the petitioners also submitted that the petitioners are now Senior Citizens and that the incident had taken place way back in the year 2006 and that none of the petitioners have misused the concession of bail granted by the Court below in the present case. Therefore, sentencing the petitioners to undergo incarceration at this belated stage would serve no purpose, rather that would be harsh. 17. In view of the aforementioned position, I am inclined to advance the petitioners the benefit of the Probation of Offenders Act. Accordingly, this Court directs the petitioners to be released under Section 4 of the Probation of the Offenders Act for a period of one year Page 8 of 9 on their executing bond of Rs.5,000/- (Rupees Five Thousand) each with one surety each for the like amount to appear and receive the sentence when called upon during such period, and in the meantime, the petitioners shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period. Insofar as imposition of fine amount of Rs.1,000/- by the court below is concerned, the same shall be increased to Rs.3,000/- (Rupees three thousand) on each of them. Accordingly, the petitioners will pay fine of Rs.3,000/- each, in default, to undergo R.I. for one month each. The total fine amount to be deposited by the petitioners shall be disbursed to the victims as compensation as per the provision under Section 357 of Cr.P.C. 18. The Criminal Revision is partly allowed and accordingly disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 29th October, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Designation: Secretary Reason: Authentication Location: HIGH COURTOFORISSA,CUTTACK Date: 18-Nov-2024 12:07:10 Page 9 of 9