AI Structured Summary
Not yet generated for this judgment
Judgment
S.S. Mishra, J. The present appeal is directed against the judgment of conviction and order of sentence dated 22.01.2009 passed by the learned Ad hoc Additional Sessions Judge, Fast Track Court, Padampur in C.T. Case No.74/28 of 2008, whereby the appellants were convicted for the offences punishable under Sections 323/149 and 147 of the Indian Penal Code. They were sentenced to undergo rigorous imprisonment for one year with fine of Rs.1,000/- each, in default, to undergo S.I. for two months for the offence under Section 323 read with Section 149 IPC, and rigorous imprisonment for six months with fine of Rs.500/- each, in default, to undergo S.I. for one month for the offence under Section 147 IPC, with both substantive sentences directed to run concurrently.
As per the report dated 21.03.2026 received from the IIC, Gaisilet P.S., appellant no.8- Kunja Bihari Sahu, appellant no.14- Upendra Sahu and appellant no.18- Jita Sahu have already expired. In absence of any application under Section 394 Cr. P.C. on behalf of the legal heirs or the next friend of the deceased-appellant nos.8, 14 and 18 to continue the appeal, the present CRLA stands abated qua the appellant nos.8, 14 and 18. The said report is already on record.
Heard Mr. Azad Keshari Dash, learned counsel appearing for the appellants and Mr. R.B. Dash, learned Additional Standing Counsel appearing for the State.
The prosecution case, in brief, is that village Amalipali under Gaisilat Police Station had become divided into two rival factions over the organisation of a Namajagya. In order to maintain law and order, Home Guard Amrutlal Sahu and other police personnel were deployed in the village. According to the prosecution, on the evening of 08.06.2007, tension prevailed between the rival groups, and on the following morning, i.e., 09.06.2007 at about 5.00 A.M., several persons belonging to one faction allegedly formed an unlawful assembly, armed with lathis, tangias and stones, and proceeded towards the houses of members of the opposite faction. It was alleged that stones were hurled, certain persons sustained simple injuries, abusive language was used, and damage was caused to houses and shops during the incident. On the basis of the written report submitted by Home Guard Amrutlal Sahu, Gaisilat P.S. Case No.20(2) dated 09.06.2007 was registered for offences under Sections 147, 148, 294, 506, 323, 307, 341, 427 and 380 read with Section 149 IPC. Upon completion of investigation, charge-sheet was submitted against twenty-one accused persons.
During trial, the prosecution examined sixteen witnesses, including injured witnesses, the Home Guard informant, medical officers and the Investigating Officer, while the defence pleaded false implication on account of a counter case arising out of the same occurrence and relied upon certified copies of documents relating to the counter case in support of its defence.
Upon appreciation of the evidence on record, the learned Trial Court came to the conclusion that although the prosecution had failed to establish the graver allegations relating to offences under Sections 148, 307, 427, 380 and other allied provisions, the evidence was sufficient to prove that accused persons had formed an unlawful assembly and voluntarily caused simple hurt in prosecution of their common object. Consequently, the learned Trial Court convicted the appellants under Sections 323 read with Section 149 IPC and Section 147 IPC, sentenced accordingly, while acquitting them from remaining charges. The relevant portion of the aforesaid judgment is extracted herein below:-
“On cumulative assessment of facts and circumstances irresistible conclusion can be drawn that the accused persons are found not guilty of commission of offences under Sections 148, 341, 307, 274, 506, 427, 380/149 IPC and they are acquitted from the above charges under Section 235(1) Cr.P.C. At the same time, it is held that prosecution is successful to bring home charges against the accused persons beyond all reasonable doubt that they have committed offences under Section 147, 323/149 IPC and as such they are found guilty of commission of offences under Section 147, 323/149 IPC under Section 235(2) Cr.P.C. The accused persons namely, Jagannath Sahu, Sushanta Sahu, Ganga Sahu, Adhikari Sahu, Sipallal Sahu, Kartika Sahu, Jayadeo Sahu, Kunjabihari Sahu, Ananda Sahu, Angada Sahu, Satyabadi Sahu alias Butu Sahu, Nrupraj Sahu, Banmali Sahu, Upendra Sahu, Sunil Sahu alias Brahma Sahu, Sushil Sahu, Nitei Sahu, Jitu Sahu, Banamali Sahu, Hrushikesh Sahu and Siba Prasad Sahu are on bail and in view of judgment of finding them guilty as indicated above, the bail bond furnished by them are cancelled and they are taken to custody and they will be awarded with sentence on hearing on question of sentence.”
Aggrieved by the aforementioned findings leading to the conviction and sentence, the appellants have filed the present appeal assailing the impugned judgment.
I have carefully considered the submissions advanced by the learned counsel for the appellants as well as the learned counsel for the State, and perused the entire lower court records, including the depositions of the prosecution witnesses, and the reasoning assigned by the learned trial Court. In the present case, certain circumstances assume considerable significance while determining the question of sentence. The offences for which the appellants presently stand convicted are under Sections 147 IPC and 323 read with Section 149 IPC, both of which are comparatively less severe offences involving unlawful assembly and causing simple hurt. The prosecution itself failed to secure conviction under the more serious charges relating to attempt to murder, use of dangerous weapons and theft. Thus, the surviving conviction relates only to participation in an unlawful assembly resulting in simple injuries.
The conviction recorded by the learned trial Court is not being interfered with. The present consideration is confined solely to the question whether the appellants deserve to be extended the benefit contemplated under the Probation of Offenders Act, 1958. The Trial Court itself noticed, while hearing the convicts on the question of sentence, that they were first offenders and that some among them were young while others were elderly villagers. The incident was essentially rooted in local political and social hostility between two rival groups. The appellants are residents of rural backgrounds, and nothing has been brought to the notice of this Court to indicate that they possess criminal antecedents beyond the present occurrence. Another relevant circumstance is the considerable lapse of time since the occurrence of June 2007 and the conviction rendered in January 2009. The appellants have remained under the shadow of criminal proceedings for nearly two decades. Nothing has been brought to the notice of this Court to indicate that they have subsequently involved themselves in any similar criminal conduct or that they have abused the liberty granted during the pendency of the appeal. In such circumstances, this Court is of the considered view that this is a fit case where the benefit contemplated under the Probation of Offenders Act, 1958 deserves to be extended to the appellants.
The Hon'ble Supreme Court in Chellammal and Another v. State represented by the Inspector of Police1, wherein the Apex Court 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 underscored that the legislative intent behind the enactment of the Probation of Offenders Act is essentially reformative in nature, aiming to provide an opportunity to first-time or less serious offenders to reform themselves rather than subjecting them to incarceration. It has been emphasized that the provisions of the Act are intended to prevent the deleterious effects of imprisonment on individuals who can otherwise be rehabilitated as responsible members of society. The Hon’ble Supreme Court has also clarified 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. 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 circumstances in which the occurrence arose, the simple nature of the injuries, the long lapse of time since the occurrence, and the period of incarceration already undergone 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. Additionally, the case of the appellants is also covered by ratio of the judgments of this Court in the case 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 present Criminal Appeal in so far as the conviction is concerned is turned down. 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 behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year.
Accordingly, the Criminal Appeal is partly allowed.