Ratikanta Nanda vs State Of Orissa

V. Narasingh, J. Heard learned counsel for the Petitioner and learned counsel for the State.

This Criminal Revision has been filed assailing the Judgment dated 01.12.2012 passed by the learned Addl. Sessions Judge Baripada, Mayurbhanj, in Criminal Appeal No. 1/24 of 2010-09, affirming the judgment of conviction and sentence dated 20.04.2009 passed by the learned Asst. Sessions Judge, Udala in S.T. Case No.11/99 of 2007 arising out of G.R. Case No.69 of 2006 qua the Petitioner under Section 323 of IPC, directing him to undergo R.I. for a period of one year and to pay a fine of Rs.1000/- (Rupees One Thousand only), in default, to undergo R.I. for a period of two months with the further direction that the period already undergone be set off from the substantive terms of imprisonment.

The prosecution case, in brief, is that on 12.03.2006 at about 9.30 A.M., Ajay Nanda, brother of the informant, was repairing the fence of his bari land with the assistance of a labourer, Tunia Singh. The bari land of Ajay Nanda and the accused are adjacent, separated by a green fence. While standing on the roof of his house, the accused abused Ajay and questioned why he was there. Ajay replied that he was repairing his fence. Thereafter, the accused, intending to kill him, threw a brick-bat which struck the back of Ajay's head, causing a bleeding injury. The injured fell to the ground and raised hullah, hearing which his wife and villagers reached the spot. The accused and his mother then shifted the injured to S.D.H., Udala, after changing his blood-stained clothes. On the doctor's advice, Ajay was referred to Balasore for suturing. Subsequently, Rana Krushna, brother of the injured, lodged the F.I.R. at Udala P.S. and, after completion of the investigation, charge-sheet was filed against the accused for the commission of offences under Sections 307/294 of the I.P.C.

In order to substantiate the charge, the prosecution examined 8 witnesses, of whom P.W.1 is the elder brother of the injured, P.W.2 is the injured, P.W.3 is the wife of the injured, P.W.4 is the labourer, Tunia Singh, P.W.5 is the nephew of the injured, P.W.7 is the younger brother of the injured, P.W.6 is the Medical Officer who treated the injured, and P.W.8 is the I.O. Several documents were also exhibited and marked as Exts.1 to 5/1, of which Ext.1, the FIR, Ext.5 the spot map are of significance.

Neither oral nor documentary evidence was adduced on behalf of the defence. The plea of the defence was one of complete denial.

On consideration of the materials on record, the Trial Court convicted the Petitioner for commission of the offence under Section 323 of the IPC and sentenced him to undergo R.I. for a period of one year and to pay a fine of Rs.1,000/- (Rupees One Thousand only), in default, to undergo R.I. for a period of two months, with the further direction that the period already undergone be set off from the substantive term of imprisonment.

On an appeal being preferred, the Appellate Court, while negating the prayer for release under the Probation of Offenders Act, 1958 (hereinafter referred to as the "P.O. Act"), affirmed the Judgment of conviction and order of sentence. Challenging the same, the present revision has been filed.

At the outset, learned counsel for the Petitioner, Mr. Sethy submits that he does not want to assail the conviction on merits.

It is further submitted by the learned counsel for the Petitioner, referring to the custody certificate, that since the Petitioner has been incarcerated for about 28 days, the punishment may be confined to the period undergone. It is also submitted that the incident happened on 12.03.2006, more than two decades ago, and directing the Petitioner to undergo the sentence after lapse of such period would not serve any purpose.

Learned counsel for the State, on the other hand, submits that, having regard to the facts and circumstances of the case, showing leniency would amount to misplaced sympathy, resulting in injustice to the cause of the injured. Hence, such a prayer ought not to be entertained.

On going through the judgments passed by the Trial Court and as affirmed by the Appellate Court, and considering the evidence of the injured along with the mitigating circumstances borne out from the materials on record, this Court finds no infirmity in the appreciation of evidence by the Courts below.

Considering the same, while not interfering with the order of conviction under Section 323 of the IPC, this Court feels that the interest of justice would be sub-served if the period of punishment is confined to the period of incarceration already undergone, more so since there is nothing on record to indicate that during the currency of bail, the Petitioner has misused the trust reposed in him.

Taking into account the rival submissions, the date of occurrence, i.e., 12.03.2006, the age of the Petitioner, being 64 years, and his subsequent conduct during all these years, this Court confines the sentence to the period of incarceration already undergone. In the peculiar facts and circumstances of the case at hand, the imposition of the fine is set aside.

The Criminal Revision, along with pending I.As, accordingly stand disposed of.