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Judgment
S.S. Mishra, J. Three appellants have filed the present Criminal Appeal jointly assailing the judgment of conviction and order of sentence dated 23.04.2005 passed by the learned Adhoc Additional Sessions Judge: (Fast Track Court), Jagatsinghpur in Sessions Trial No.6 of 2003, whereby they have been convicted for the offences punishable under Sections 452/323/506/34 of IPC and sentenced to undergo S.I. for one year each and to pay a fine of Rs.100/- (Rupees one hundred) each, in default, to undergo S.I. for two months for the offence punishable U/S. 452/34 of IPC. Further, he was sentenced to undergo S.I. for six months each and to pay a fine of Rs.100/- (Rupees one hundred) each, in default, to undergo S.I. for two months for the offence punishable under Section 323/34 of IPC and also they were directed to undergo S.I. for three months each and to pay a fine of Rs.100/- (Rupees one hundred) each, in default, to undergo S.I. for two months for the offence U/S. 506/34 of IPC.
The present appeal has been pending since 2005. When it was taken up for final hearing, continuously none appeared for the appellants. Therefore, Mr. Prasanna Kumar Mishra, Advocate present in the Court, was appointed as Amicus Curiae to appear for the appellants, who readily agreed and after obtaining the records of the case, assisted the Court effectively, for which this Court records appreciation.
Heard Mr. Prasanna Kumar Mishra, learned Amicus Curiae appearing on behalf of the appellants and Mr. Jateswar Nayak, learned Additional Government Advocate appearing for the State.
The prosecution case in terse and brief is that on 29.05.1996 at about 7 P.M., the F.I.R. was registered by Niranjan Das (P.W.7) before Jagatsinghpur Police Station alleging that for the last so many years, the persons belonging to their S.C. community have been trying to evacuate him from his ancestral land keeping an eye over his properties. It is alleged that on the pretext of watching T.V. show, the accused persons entered into the house of the informant and assaulted him and his family members. Out of fear, they left their house and went to their ancestral house at village Purohitpur. Thereafter, in the afternoon, the accused persons again came to Purohitpur and assaulted the informant and his other brothers causing severe injuries. Therefore, Jagatsinghpur P.S. Case No.178/1996 corresponding to G.R. Case No.415/1996 was registered against the accused persons.
It appears that the accused persons have also registered a cross-case pertaining to the same incident being Jagatsinghpur P.S. Case No.186/1996 corresponding to G.R. Case No.423/1996. Both the cases were tried together to test the veracity of the claims and counter claims made by both the parties in their respective F.I.Rs.
After the investigation in the present case, the police laid down the charge sheet on the alleged commission the offences punishable under Sections 452/323/506/34 of IPC. The charges were framed and on the stance of the accused persons of denial, they were put to trial.
In order to prove such charges, the prosecution has examined as many as 11 witnesses, whereas the accused persons have taken a stance of complete denial. It was the plea of the accused-appellants that the group belonging to the informant, committed the murder of one Bijay Das from their group and in order to escape such liability, they have manufactured a story and implicated the appellants.
The prosecution examined P.Ws.1 to 5 as independent witnesses. But none of them have supported the prosecution case. Therefore, the prosecution case rest on the evidence of P.W.7, P.W.8, the father of the injured, P.W.11, the mother of the injured, P.W.6, the doctor, who examined the injured and P.W.9, the I.O.
Learned trial Court, by evaluating the evidence adduced by the parties, returned the following findings:
22.In my view, the evidence of P.Ws. 7, 8 & 11 are corroborated in material particulars in so far as the commission of offence u/s. 452 IPC is concerned, because they went to the house of the informant and his father at village Purohitpur having made preparation for causing hurt to any person and to assault those persons being armed with deadly weapons and therefore, the prosecution could be able to prove the charge u/s. 452 of the I.P.C. against the accused persons.
23.The next charge which the prosecution wants to prove against the accused persons is about the commission of the offence u/s. 323 of I.P.C. In order to prove an offence u/s. 323 IPC, the prosecution must prove that the accused persons did any act with the intention or with the knowledge that they caused bodily pain, disease or infirmity to that person. In this connection, the evidence of Pw.7 who is the informant clearly goes to show that on the village road of Dasabatia the accused being armed with Lathies, iron-rods, Bhujali, Katuri etc. came and assaulted him alongwith Bira and Kusia. Due to the assaults, he sustained injuries over his right hand, head and at the back and went to the hospital for treatment through their house at village Purohitpur.
Subsequently, his father also came to the hospital after receiving injuries. In the evening when they returned from the hospital they lodged the FIR (Ext.2). Pw.8 has stated that accused persons assaulted his sons Niranjan, Birakishore and Kusia resulting in bleeding injuries on their person after entering into the house. Due to the assaults, his sons received injuries and they were taken to the hospital for treatment. Subsequently at about 10 a.m. the accused persons went to their house at village Purohitpur and assaulted him, his wife and his daughters-in-law and when the police arrived the accused persons fled away. He was taken to the hospital by the police for his treatment where he saw his sons and they were undergoing treatment. In the cross-examination, he has admitted that he had not seen the assault on his sons and about the injuries on his persons is concerned he stated that he had received only one bleeding injury and nothing was elicited by the defence from his mouth so as to favour the defence. Pw.11 who is the mother of the informant has stated that when she was at village Purohitpur, her sons arrived at her house after they were assaulted by the accused persons and on her query, reply was given by her sons that the accused persons assaulted them on the pretext to leave the house or else they would be assaulted and thereafter her injured sons went to the hospital for treatment. Again the accused persons came and assaulted her husband (pw.8), pushed her back and also pushed her pregnant daughter-in-law. She has also admitted that she did not state this fact to the I.O. The prosecution in this case has proved the injury over Dolagovinda Das (Pw.8) through the doctor and the injury over Pw.7, the informant and the injury over Birakishore Das through the I.O. The medical documents marked as Ext.1, Ext.3 & Ext.4 clearly show that all these three persons received injuries over their person. Besides this, the place of injury as stated by Pw.8 differs from the medical report, because the Ext.1 speaks that he received one injury over the flexer aspect of right forearm. However, the injuries received by the informant (pw.7) and Birakishore speaks that they received injuries on the part as stated by the informant. On this score, it is submitted by the learned Addl. P.P. that the prosecution has proved the ingredients of the offence u/s.323 IPC. On the other hand, it is submitted by the learned counsel for the defence that since there is discrepancy in the statement of witnesses, their testimonies should not be believed especially when the place of injuries differs from that in the medical reports and when the witnesses are related to each other and the other independent witness did not corroborate the prosecution story. On this score, it is also submitted by the accused persons by relying on a decision as reported in (1989)-2-OCR-404 in a case between
“Kumari Gita Byas Vs. Smt. Surya Tanti and two others” wherein the Hon’ble Court has been pleased to hold that while appreciating the evidence of the witnesses who are in litigating terms with the accused, their evidence should be examined with caution and independent corroboration is necessary to accept their statement. In continuation of his argument the learned counsel for the accused persons has also cited another decision of the Hon’ble Court as reported in 1996-Supreme Court Cases(Crl)-503 in a case between
“Niranjan Prasad and others Vs. State of M.P.” wherein also the Hon’ble Supreme Court has held that finding of the doctor about the weapon of offence used in the assault and the ocular testimony differs and when the Trial Court found unsafe to rely on the ocular version of incident as given by the eye witnesses the finding of the Trial Court is not perverse.
24.While appreciating the aforesaid evidences on record, I am also in respectful agreement with the ratio of the two decisions of the Hon’ble High Court and Hon’ble Supreme Court as cited by the learned counsel for the accused persons, because it is admittedly the place of injuries as stated by the Pw.8 differs from the medical evidence. However, the other part of the assault which took place in the house of Pw.8 and Pw.11 cannot be disbelieved, because the prosecution has proved it beyond all reasonable doubt and apparently there are no other witnesses except the Pw.8 and Pw.11. Besides this, for a case u/s.323 of IPC, there is no necessity of causing injury on the body of the injured persons and therefore, I hold that the accused persons have committed the offence u/s.323 of the I.P.C.
25.The next allegation of the prosecution is about the commission of offence u/s.506 of the I.P.C. In order to prove the offence of criminal intimidation, the prosecution has to prove that there must be a threatening by the accused persons with injury to that person, reputation or property to the person or reputation of any one for whom that person is interested and there must be with an intention of the accused to cause alarm to that person or the other person or the accused by such act caused that person to do any act which he is not legally bound to do or omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat. If any of these ingredients are proved then only a legal punishment u/s.506 of IPC can be made. Coming to the evidence available on the record, it is seen that the evidence of Pw.7 clearly goes to show that he was being assaulted and was threatened by the accused persons to leave the village, because he had not left the village though he was directed earlier. This statement of Pw.7 also finds place in the FIR (Ext.2) and hence, the FIR is corroborated by the statement of the Pw.7. This has also been stated by the Pw.8 and Pw.11 before whom Pw.7 and other brothers narrated the grounds of assaults and therefore, it is submitted by the learned counsel for the prosecution that the charges against the accused persons for the commission of the offence u/s.506 of IPC is proved. On the other hand, it is submitted by the learned counsel for the defence that there must be a alarm on the person who are affected by the threats or injury. But, in the instant case, there is no such alarm in the record. However, on going to the ingredients of the criminal intimidation as mentioned in Section-503 IPC which is punishable u/s.506 IPC it goes to say that the offence is proved when there is a threatening to any act which the other persons is not legally bound to do and therefore, in the present evidence available on the record, the accused persons have clearly threatened the informant and others to leave the house and accordingly, I hold that the prosecution has proved the commission of offence u/s.506 of the I.P.C.”
Aggrieved by the aforementioned findings, which led to the judgment of conviction and the order of sentence, the appellants have filed the present appeal.
Mr. Prasanna Kumar Mishra, learned Amicus Curiae, by drawing the attention of this Court to the contents of the F.I.R., the evidence of P.Ws.7, 8 and 9 submitted that, if the evidences of all the witnesses are read in conjunction with the initial story portrayed by the complainant in the F.I.R., it would clearly be seen that not only the narrative of the incident is inconsistent but also the entire sequence of event portrayed by the witnesses differs from each other. From reading of the evidence on record, three different prosecution stories are emanating. Mr. Mishra, learned Amicus Curiae has read out the evidence in detail to substantiate his aforementioned argument.
Mr. Jateswar Nayak, learned Additional Government Advocate appearing for the State, on the other hand, has strongly relied upon the evidence of the injured witness and the eye witnesses. He submitted that the evidence of the injured witness is not only corroborating with the evidence of the eye witnesses but also with the evidence of the doctor (P.W.6). Hence, the reasoning recorded by the learned trial Court, while convicting the accused persons, is just, proper and culmination of true appreciation of the evidence. Therefore, he submitted that no interference is called for in the present case.
I have carefully gone through the evidence on record to appreciate the rival submissions made by learned counsels for both the parties at the Bar. P.W.7, the author of the F.I.R. is injured in the present case. He has reported to the police that on the date of occurrence on the pretext of watching T.V. show, the accused persons in a concerted manner entered into his house and assaulted him, his brother, his old father and threatened them to vacate the house. Out of fear and to save their life, all of them left that house and travelled about 1 K.M. distance to village Purohitpur to stay in their old house. But in the afternoon, at about 3 to 4 P.M., all the accused persons again came to that village being armed with deadly weapons and assaulted them. To save their life, they left the place and went to the hospital. In their absence, the accused persons have also attacked the lady members in the family and destroyed the house. When the said witness stepped into the witness box, he has narrated a different story. He deposed that at about 6 A.M. in the morning on 29.05.1996, the accused persons told him to leave the village. Thereafter, the accused persons being armed with lathi, iron rod, bhujali, katuri etc. assaulted him as well as Bira and Kusia (not examined). Due to the assault, he sustained injury on his right hand, head and back. He further deposed that after the assault, they came to village Purohitpur and then went to the hospital for treatment. When they were at the hospital, his father also reached there after receiving injuries. In the evening, all of them along with their father returned from the hospital and thereafter lodged the F.I.R. If the testimony of P.W.8, the father of the injured (P.W.7) and the evidence of P.W.11, the mother of P.W.7 is seen, their narration of the incident is diagonically different to that of the narrative made by P.W.7. In that context, the evidence of P.W.9 (the I.O.) assumes relevance. P.W.9, in his testimony in paragraph-3, deposed as under:
“3.During investigation I have examined Bhudhishyam Bhoi (P.W.1) and recorded his statement. It is a fact that P.W.1 had stated before me that hearing hullah from Purohitpur Baurisahi he came out of his house and that he proceeded towards the spot so as to know what has happened and that on the he met Dolagovinda Bhoi, Kalandi Bhoi and others who were also proceeding to know about the incident, and that he has also stated before me that while he along with others were proceeding to spot he saw Badi Bhoi, Niranjan Bhoi were running towards roadside armed with bhujali and lathies and that he and others arrived at the spot and saw the injured Guna @ Bishnu Bhoi, Pakua @ Bijaya Das were lying there with serious bleeding injury on their persons, and that he himself with others managed to sent them to hospital for their treatment with a trolley rickshaw accompanied by Sangram Das and Gura Bhoi.”
Therefore, it is evident from the evidence of P.Ws.7, 8 and 11 that they are not consistent in their version regarding the occurrence. However, the evidence of P.W.6, the doctor regarding the nature of injury sustained by P.W.7 cannot be doubted, particularly the fact that all other witnesses have deposed before the Court that there was a fight between both the groups. However, the narration of the incident made in the F.I.R. and in the deposition of the witnesses of P.Ws.7, 8 and 11 appears to be exaggerated versions. Therefore, the findings recorded by the learned trial Court in so far as the offence under Section 506/452/34 of IPC doesn’t appear to be a culmination of true appreciation of evidence in its true prospective. The fact that P.Ws.7 and 8 were injured and sustained simple injuries cannot be doubted from the evidence of the eye witnesses and other corroborative evidence. Therefore, the judgment of conviction recorded by the learned trial Court of the offences under Sections 506/452/34 of IPC is set aside and the appellants are acquitted of the said charges. However, the conviction recorded by the learned trial Court under Section 323/34 of IPC stands affirmed.
At this stage, Mr. Mishra, learned Amicus Curiae appearing for the appellants submitted that the incident relates back to the year 1996. At that point of time, the appellant No.1 was about 61 years of age, appellant No.2 was about 26 years of age and appellant No.3 was about 42 years of age. After lapse of about 29 years, now the appellant No.1 would be about 90 years, appellant No.2 would be about 55 years of age and appellant No.3 would be about 71 years of age.
Learned counsel further submitted that the appellants have since settled in life and that directing them to undergo the remaining part of the sentence after such a prolonged lapse of time would serve no meaningful purpose. It was also submitted that the appellants have no criminal antecedents and that no other criminal case is stated to be pending against them. According to the learned counsel, the appellants have remained integrated with society over the years and are leading a peaceful life. In such circumstances, their incarceration at this distant point of time would neither advance the ends of justice nor serve any meaningful penological objective. Accordingly, it was prayed that, having regard to the long passage of time, the nature of the offence, the antecedents of the appellants and the overall facts and circumstances of the case, this Court may extend them the benefit of the provisions of the Probation of Offenders Act, 1958.
This Court is of the considered view that this is a fit case for extending to the appellants the benefit contemplated under the provisions of the Probation of Offenders Act, 1958. The Hon'ble Supreme Court in Chellammal and Another v. State represented by the Inspector of Police1, has held that it is the statutory obligation of the sentencing Court to consider the applicability of the provisions of the Probation of Offenders Act and that any refusal to extend such benefit must be supported by reasons. In the facts and circumstances of the present case, the submission advanced by the learned counsel for the appellants seeking extension of the benefit under the Probation of Offenders Act merits consideration.
The Hon'ble Supreme Court in Chellammal (supra) has elaborately explained the scope, object and significance of the Probation of Offenders Act, 1958 while considering the question of extending the benefit of probation to a convict. The Hon'ble Supreme Court has observed as follows:
“26.On consideration of the precedents and based on a comparative study of Section 360, Cr. PC and sub-section (1) of Section 4 of the Probation Act, what is revealed is that the latter is wider and expansive in its coverage than the former. Inter alia, while Section 360 permits release of an offender, more twenty-one years old, on probation when he is sentenced to imprisonment for less than seven years or fine, Section 4 of the Probation Act enables a court to exercise its discretion in any case where the offender is found to have committed an offence such that he is punishable with any sentence other than death or life imprisonment. Additionally, the non-obstante clause in sub-section gives overriding effect to sub-section (1) of Section 4 over any other law for the time being in force. Also, it is noteworthy that Section 361, Cr. PC itself, being a subsequent legislation, engrafts a provision that in any case where the court could have dealt with an accused under the provisions of the Probation Act but has not done so, it shall record in its judgment the special reasons therefor.
27.What logically follows from a conjoint reading of sub-section (1) of Section 4 of the Probation Act and Section 361, Cr. PC is that if Section 360, Cr. PC were not applicable in a particular case, there is no reason why Section 4 of the Probation Act would not be attracted.
28.Summing up the legal position, it can be said that while an offender cannot seek an order for grant of probation as a matter of right but having noticed the object that the statutory provisions seek to achieve by grant of probation and the several decisions of this Court on the point of applicability of Section 4 of the Probation Act, we hold that, unless applicability is excluded, in a case where the circumstances stated in subsection (1) of Section 4 of the Probation Act are attracted, the court has no discretion to omit from its consideration release of the offender on probation; on the contrary, a mandatory duty is cast upon the court to consider whether the case before it warrants releasing the offender upon fulfilment of the stated circumstances. The question of grant of probation could be decided either way. In the event, the court in its discretion decides to extend the benefit of probation, it may upon considering the report of the probation officer impose such conditions as deemed just and proper. However, if the answer be in the negative, it would only be just and proper for the court to record the reasons therefor.”
Having regard to the aforesaid legal position and considering the facts of the present case, particularly the nature of the offence under Section 323/34 of the Indian Penal Code, the long lapse of more than twenty nine years since the occurrence, the custody undergone, the absence of any criminal antecedents and the settled life presently being led by the appellants, this Court is of the considered opinion that the appellants deserve to be extended the benefit contemplated under Section 4 of the Probation of Offenders Act, 1958, instead of directing them to undergo the remaining part of the sentence. Additionally, the case of the appellants is also covered by the ratio of the judgments of this Court in the cases of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra2 and Dhani @ Dhaneswar Sahu vs. State of Orissa3. In view of the aforesaid legal position and the peculiar facts and circumstances of the case, this Court is inclined to extend to the appellants the benefit contemplated under Section 4 of the Probation of Offenders Act.
Hence, the conviction U/Ss.506/452/34 of IPC is set aside, however, in so far as the conviction U/s.323/34 of IPC is concerned, the same stands unaltered. But instead of sentencing the appellants to suffer imprisonment, this Court directs the appellants to be released under Section 4 of the Probation of Offenders Act for a period of one year 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 behaviour and shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year. The appellants are also liable to pay a compensation of Rs.10,000/- (Rupees ten thousand) each to the injured U/s.5 of the P.O. Act within a period of 2 months from today.
Accordingly, the Criminal Appeal is partly allowed.
This Court acknowledges the effective and meaningful assistance rendered by Mr. Prasanna Kumar Mishra, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/-(Rupees seven thousand five hundred) to be paid as a token of appreciation.