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Judgment
S.S. Mishra, J. The present Criminal Appeal has been preferred by the appellants challenging the judgment of conviction and order of sentence dated 15.10.2004 passed by the learned Additional Sessions Judge (F.T.C.), Bolangir in S.C. No.99-B/21/14 of 2003, whereby the appellants, who along with two other accused persons faced trial for the offences punishable under Sections 294/324/307/34 of the Indian Penal Code, have been convicted under Sections 324/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years each and to pay a fine of Rs.500/- each, in default whereof to undergo rigorous imprisonment for a further period of two months each. The learned Trial Court, however, acquitted the two co-accused persons of all the charges.
Heard Mr. Adish Jena, learned Counsel for the appellants and Mr. Aurobinda Mohanty, learned Additional Standing Counsel for the State.
The prosecution case, in brief, is that on 03.06.2002 in the morning hours, the informant, Suratha Das, along with his father, Mana Das, and his son, Mitrabhanu Das, was ploughing their land. At that time, the accused persons, being armed with a tabli, iron rod and lathi, came to the spot and rebuked them by using abusive words and asked them to vacate the land. In the course of such occurrence, accused Nadu Das dealt a tabli blow on the head of Mana Das, as a result of which he sustained a bleeding injury.
It is further alleged that accused Petu, Sarada and Satya rushed towards the informant, Suratha Das, and assaulted him, causing injuries on his head and left hand. Thereafter, accused Petu allegedly dealt a tabli blow on the left hand of Mitrabhanu Das. The said accused also assaulted the informant with a tabli. When other persons arrived at the spot, the accused persons left the place of occurrence.
The injured persons were initially brought to the village and thereafter taken to the hospital for treatment. Subsequently, the informant lodged the First Information Report at the concerned Police Station, which was marked as Ext.2. On the basis of the said report, the police registered a case and took up investigation. Upon completion of investigation, the police submitted charge-sheet against the accused persons, pursuant to which the case was committed to the Court of Session and the accused persons faced trial.
The defence plea is one of complete denial of the allegations. Accused Sarada Das, in addition, took the specific plea that on the date of occurrence, the members of the informant party had pelted stones at their house and had also broken the tin door of their house. According to the defence, thereafter the informant party falsely implicated the accused persons in the present case.
In order to establish its case, the prosecution examined eight witnesses. P.W.3 is the injured informant, P.W.4 is his injured father, Mana Das, and P.W.5 is his injured son, Mitrabhanu Das. P.W.1 was a seizure witness, whereas P.Ws.2 and 7 were stated to be eyewitnesses to the occurrence. P.W.6 was the Medical Officer, who examined the injured persons, and P.W.8 was the Investigating Officer. The defence, on the other hand, examined five witnesses in support of its plea.
Before proceeding to examine the rival submissions, it would be appropriate to take note of the findings recorded by the learned Trial Court on appreciation of the oral and medical evidence. From a reading of the impugned judgment, it appears that the learned Trial Court, after considering the testimony of the injured informant, P.W.3, his injured father, P.W.4, and his injured son, P.W.5, as well as the evidence of the other witnesses and the medical evidence of P.W.6, recorded its findings with regard to the involvement of the accused persons and the nature of injuries sustained by the injured witnesses. The learned Trial Court found that the evidence against accused Satya Das and Sarada Das was doubtful and, accordingly, acquitted them of the charge under Section 324/34 of the I.P.C. So far as accused Nadu Das and Nakul @ Petu Das are concerned, the learned Trial Court, upon appreciation of the evidence, found that the prosecution had established their involvement in the assault and that the injuries caused to the injured persons were simple in nature. The relevant findings of the learned Trial Court, contained in paragraphs 10 to 12 of the impugned judgment, are extracted hereinbelow for ready reference:
“10.From evidence, it appears that accused Satya and Sarada chased the informant. PW.5 is the son of informant who was present at the spot. He has only alleged that accused Sarada and Satya chased his father. He does not say if they have assaulted his father. P.W.3 says that accused Satya dealt one iron rod blow to his right side head. He again dealt an iron rod blow to his left hand. Accused Sarada dealt a lathi blow to his back. But his injury report does not indicate if any such injury was sustained by him on his back. The injury sustained on the left fore arm was a incised wound. In F.I.R. (Ext.2) specific allegation has been made against accused Nadu and Petu. There is no specific allegation against accused Sarada and Satya. Therefore, implication of accused Satya and Sarada, in the above circumstance, appears to be doubtful.
11.The Doctor p.w.6 has specifically stated that all the injuries found by him under Exts. 3,4 and 5 are simple in nature. The injury is not sufficient to cause death of a person in ordinary course. Back-ground of the case is that the incident took place relating to some land. The intention to kill the injured persons is totally absent. Rather, the occurrence took place in a hot haste. Therefore, no case U/s 307 I P.C. is made out against the accused person. Rather the evidence indicates that accused Nadu Das and Petu Das assaulted the injured persons by means of Tabli which is an instrument of cutting. The injuries are simple in nature. Therefore, a case U/s 324 I.P.C. is made out against accused Nadu Das and Petu Das.
12.In the result, the prosecution has failed to prove a case U/s. 307/294/34 I.P.C. against all the accused persons. They are acquitted of the said charge. But Prosecution has proved a case U/s 324/34 I.P.C. only against accused Nadu Das and Nakul @Petu Das. Prosecution has failed to prove a case U/s 324/34 I.P.C. against accused Satya Das and Sarada Das and both of them are found not guilty and acquitted of the said charge. But accused Nadu Das and Nakul @ Petu Das are found guilty of the offence U/s 324/34 I.P.C. and they are convicted thereunder."
From the aforesaid findings of the learned Trial Court, it is evident that the conviction of the present appellants has primarily been founded upon the evidence of the injured witnesses and the medical evidence available on record. The learned Trial Court has also taken into consideration the discrepancies and omissions in the evidence while acquitting accused Satya Das and Sarada Das. It has further recorded a categorical finding that the injuries sustained by the injured persons were simple in nature and that the evidence did not establish any intention on the part of the accused persons to cause their death. Consequently, the learned Trial Court rightly held that the ingredients of the offence punishable under Section 307 of the I.P.C. were not established and convicted the present appellants only for the offence punishable under Section 324/34 of the I.P.C.
Aggrieved by the aforesaid judgment of conviction and order of sentence dated 15.10.2004 passed by the learned Additional Sessions Judge (F.T.C.), Bolangir in S.C. No.99-B/21/14 of 2003, the present appeal has been preferred by the appellants assailing the legality and correctness of the said judgment of conviction and order of sentence.
At the outset, learned counsel appearing for the appellants without venturing into the merits of the case submitted on quantum of sentence that the occurrence took place on 03.06.2002 and the present appeal, preferred in the year 2004, has remained pending for more than two decades. It was contended that, having regard to the long passage of time since the occurrence, directing the appellants to undergo the substantive sentence at this distant point of time would serve no meaningful purpose. Learned counsel further submitted that the appellants have, in the interregnum, remained integrated with society and have been leading settled lives. It was also urged that there is nothing on record to indicate any criminal antecedent or involvement of the appellants in any other criminal case. In such circumstances, learned counsel submitted that the object of sentencing would be adequately met by extending to the appellants the benefit of the provisions of the Probation of Offenders Act, 1958, rather than directing them to undergo the substantive sentences imposed upon them. Accordingly, it was prayed that, keeping in view the nature of the offences for which the conviction ultimately stands, the age of the occurrence, the prolonged pendency of the appeal and the overall facts and circumstances of the case, the appellants may be extended the benefit of probation.
Upon a careful consideration of the evidence available on record and the findings recorded by the learned Trial Court, this Court finds no compelling reason to take a different view. The findings recorded by the learned Trial Court are based on a proper appreciation of the evidence and do not suffer from any perversity or infirmity warranting interference by this Court. Accordingly, the conviction of the appellants for the offence punishable under Sections 324/34 of the Indian Penal Code is hereby affirmed.
The record reveals that the occurrence relates back to 03.06.2002 and the appellants came to be convicted by the learned trial Court vide judgment dated 15.10.2004. The present appeal, preferred in the year 2004, has remained pending for more than twenty years. Thus, more than two decades have elapsed since the occurrence. During this considerable period, the appellants have had the opportunity to lead their respective lives and remain integrated with society. There is also no material brought to the notice of this Court indicating that, after the occurrence, the appellants have been involved in any other criminal activity or that any other criminal case is presently pending against them. Therefore, in view of the long lapse of time, the nature of the offences, the absence of any material indicating subsequent criminal antecedents and the fact that the appellants have remained at liberty for a prolonged period, this Court is of the considered view that sending them back to custody at this distant point of time would not serve any meaningful purpose. The circumstances of the case, therefore, warrant consideration of the appellants for extending the benefit contemplated under 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 324/34 of IPC, the long lapse of more than twenty years since the occurrence, the absence of any criminal antecedents and the settled life presently being led by them, 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 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 conviction of appellants under Section 324/34 of the Indian Penal Code is maintained. However, instead of directing the appellants to undergo the substantive sentences, this Court extends to them the benefit contemplated under Section 4 of the Probation of Offenders Act, 1958, 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. However, while extending the benefit of Section 4 of the P.O. Act, keeping in view the nature of injuries sustained by P.Ws. 3, 4 and 5, this Court is of the view that the appellants are liable to pay compensation U/s.5 of P.O. Act to the injured. Accordingly each of the appellant shall pay ₹5,000 (Rupees five thousand) compensation to P.Ws.3, 4 and 5 within a period of 4 weeks.
Accordingly, the Criminal Appeal is partly allowed.