The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.119 of 2009 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Bhagaban Sahu and others ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Birendra Kumar Nayak, Advocate For the Respondent : Mr. Raj Bhusan Dash, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 18.11.2025 :: Date of Judgment: 27.11.2025 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 04.03.2009 passed by the learned Ad hoc Additional Sessions Judge (Fast Track Court), Padampur in C.T.
Legal Reasoning
No.188/51 of 2008, arising out of G.R. Case No.489 of 2005, whereby the appellants are acquitted of the charges under Sections 148/307/325/341/506/149 of I.P.C., but convicted under Sections 147/323/149 of I.P.C. They are sentenced to undergo R.I. for six months each for the offence under Section 147 of I.P.C., and R.I. for one year each and a fine of Rs.1,000/- each and in default to undergo R.I. for two months for the offence under Section 323/149 IPC. 2.
Legal Reasoning
Heard Mr. Birendra Kumar Nayak, learned Counsel for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State. 3. The prosecution case in brief, as unfolded in the F.I.R. dated 26.11.2005 lodged by P.W.1 Sahadev Sahu, is that the informant and his sons were cutting a tree allegedly standing on their land, which was uprooted during a cyclone. At that time, the accused persons, variously armed, allegedly arrived at the spot and assaulted the sons of the informant, who fell unconscious. When the informant went to rescue Page 2 of 10 them, he was also assaulted. It was further alleged that P.W.5, the wife of the informant, and P.W.6, the daughter-in-law, were also assaulted by the accused persons. 4. After investigation, charge-sheet was filed, the case was committed, and the appellants faced trial on the charges of offences under Sections 147/148/307/325/323/341/506/149 of I.P.C. 5. The prosecution examined eleven witnesses. P.W.1 is the informant. P.Ws.2, 3, 5 and 6 are projected as victims. P.Ws.7 and 8 were Medical Officers. P.Ws.10 and 11 were the Investigating Officers. P.W.9 was examined as an independent witness but did not support the prosecution. P.W.10 was also declared hostile. The defence did not examine any witness. 6. The learned trial Court, while partly disbelieving the prosecution case, held that although the allegations of grievous hurt, attempt to murder, wrongful restraint and intimidation were not proved, the materials on record established that the accused formed an unlawful assembly and committed the offence of rioting, and further inflicted Page 3 of 10 simple hurt on the victims. Accordingly, the learned trial Court convicted the appellants and imposed sentence as mentioned above. The relevant portion of the aforesaid judgment is extracted herein below for ready reference:- “On cumulative assessment of evidences on record and on conjoint reading of settled decisions of Honorable High Court and Supreme Court, irresistible conclusion can be drawn that prosecution failed to bring home any of the charges against accused persons namely Smt. Manda Sahu, Smt. Bhanumati Sahu and Smt. Kiafula Sahu and as such they are found not guilty of commission of offences Under Section 147, 148, 307, 323, 325, 341,506/149 IPC and they are acquitted from the charges under Sections 147, 148, 307, 323, 325, 341,506/149 IPC, Under Section 235(1) Cr.P.C. Accused persons Smt. Manda Sahu, Smt. Bhanumati Sahu and Smt. Kiafula Sahu are on bail and in view of judgment of acquittal they are discharged from the bail bonds furnished by them. Prosecution failed to bring home charges Under Section 148, 307, 325,341,506/149 IPC against 6(Six) accused persons namely, Bhagaban Sahu, Chintamani Sahu, Lakhindra Sahu, Sudarshan Sahu, Supakar Sahu, Raghumani Sahu and as such they are acquitted from the charges Under Section 148,307,325,341,506/149 IPC Under Section 235(1) Cr.P.C. but prosecution is found successful to bring home charges against them beyond all reasonable doubt under Section 147,323/149 IPC and as such accused persons namely Bhagaban Sahu, Chintamani Page 4 of 10 to extend Sahu, Lakhindra Sahu, Sudarsan Sahu, Supakar Sahu, Raghumani Sahu are found guilty of commission of offences Under Section 147,323/149 IPC Under Section 235(2) Cr.P.C. Looking to the brutality of assault on the injured persons I am not inclined the beneficial provisions of Probation of Offenders Act to the accused persons to whom I found guilty of commission of offences Under Section 147,323/149 IPC. The Court is under duty bound to award appropriate punishment looking to the crime as crime is not only against the individual but also against the society to which the criminal and the victim belong. While I am not inclined to extend benefit of Probation of Offenders Act (20 of 1958) it is proper to award appropriate sentence to respond the society's cry for justice against criminal. Accused persons Bhagaban Sahu, Lakhindra Sahu, Sudarsan Sahu, Supakar Sahu, Raghumani Sahu are on bail and in view of finding them guilty of commission of offences Under Section 147,323/149 IPC bail bonds furnished by them are cancelled and they be taken to the dock for hearing on question of sentences and there after sentences shall be awarded appropriately”. Sahu, Chintamani 7. I have carefully considered the submissions advanced by the learned counsel for the appellants and the learned counsel for the State and have gone through the records of the case, including the depositions of the witnesses and the documents produced. Page 5 of 10 8. The learned trial Court has already discarded the major portion of the prosecution case relating to the graver offences under Sections 148/307/325/341/506 of I.P.C. and confined the conviction of the appellants to offences under Sections 147 and 323/149 of I.P.C. The acquittal returned in respect of the other charges has attained finality, the State having not preferred any appeal. What survives for adjudication is the challenge to the conviction for rioting and voluntarily causing simple hurt in prosecution of the common object of the unlawful assembly. 9. The evidence of P.W.1, P.W.2 and P.W.3, if read in conjunction, clearly demonstrates that a quarrel did take place between the parties over the cutting of a tree standing on a ridge jointly claimed by both sides. The learned trial Court has rightly noted that although the genesis of the dispute lay in the cutting of the tree, the presence of the appellants at the spot and the subsequent assault upon the informant and his sons stand sufficiently established. The medical evidence of P.W.7 and P.W.8, though not impeccable in all respects, corroborates the presence of injuries of simple nature on the victims shortly after the incident. The Page 6 of 10 contradictions and embellishments noted in the evidence of P.W.5 and P.W.6 do not demolish the core prosecution story, because the essential assault on P.W.1 and his sons has been consistently spoken to by the injured witnesses themselves. 10. The defence emphasis on the counter-case registered as G.R. Case No.488/2005 does not, in my considered view, render the present prosecution inherently false. The existence of a counter-case merely shows that both parties were involved in a dispute; it does not, by itself, nullify the credible portion of the evidence establishing that the appellants formed an unlawful assembly and caused simple hurt. The trial Court was justified in relying on the prosecution witnesses to the extent they were found trustworthy, and this Court finds no perversity or misreading of evidence warranting interference. 11. As regards the argument that the learned trial Court failed to analyze the ingredients of Section 147 of I.P.C., I find that the materials sufficiently prove the presence of more than five accused at the spot, armed with sticks, acting in concert and participating in the assault. Even Page 7 of 10 if the genesis lies in a property dispute, once the accused gather together and voluntarily cause hurt, their actions clearly constitute rioting within the meaning of Section 147 IPC. The contention that the common object was not proved loses sight of the settled legal principle that the common object can be formed on the spot and inferred from the conduct of the assembly. In the present case, the collective assault on the informant side is sufficient to draw such inference. 12. Similarly, the conviction of the appellants under Section 323 read with Section 149 IPC calls for no interference. The prosecution has established that certain members of the informant’s family sustained simple injuries in the course of the incident. When the appellants were jointly present, armed and participating in the occurrence, they are vicariously liable for the acts done in perpetuation of the common object. The learned trial Court was, therefore, justified in invoking Section 149 of I.P.C. 13. Upon a cumulative assessment, this Court finds no infirmity, perversity or illegality in the findings recorded by the learned trial Court. Page 8 of 10 Hence, the conviction of the appellants under Sections 147 and 323/149 of the I.P.C. is hereby upheld. 14. Coming now to the question of sentence, it is noteworthy that the incident took place nearly two decades ago, and the parties are residents of the same village with long-standing land-related rivalry. No material has been placed to show previous criminal antecedents on the part of the appellants. Appellants are now all above 50 years of age, and are persons belonging to the rural poor strata. The injuries caused were simple in nature, and the occurrence did not involve the use of deadly weapons or the intention to cause grievous harm. These circumstances persuade this Court to take a lenient view on the question of sentence. 15. Considering the nature of the offence, the circumstances of the quarrel, the age and background of the appellants, the absence of criminal history, and the long lapse of time since the occurrence, this Court finds it to be a fit case for extending the benefit of the Probation of Offenders Act, 1958. The object of the Act is to reform first-time offenders and provide them with an opportunity to avoid incarceration Page 9 of 10 for minor offences. The present case squarely falls within the ambit of its beneficial provisions. 16. Accordingly, while upholding the conviction of the appellants under Sections 147 and 323/149 of I.P.C., the substantive sentences imposed by the trial Court are set aside. This Court directs the appellants to be released under Section 4 of the Probation of Offenders Act for a period of six months on their executing bond of Rs.5,000/- (Rupees Five Thousand) each within one month 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 appellants shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months. 17. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 27th November, 2025/Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 05-Dec-2025 19:36:53 Page 10 of 10