Sanu @ Sachindra Mohanta 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 09.04.2013 passed by the learned Addl. Sessions Judge Baripada, Mayurbhanj, in Criminal Appeal No. 11/18 of 2012, thereby modifying the judgment of conviction and sentence dated 18.04.2012 passed by the learned Asst. Sessions Judge, Karanjia, Mayurbhanj in S.T. Case No.30/77 of 2004 arising out of G.R. Case No.325 of 2003 (T.C. No.271/2004) qua the Petitioner under Section 325 of IPC, directing him to undergo R.I. for a period of 2 years and to pay a fine of Rs.1000/-(Rupees One Thousand only), in default, to undergo R.I. for a period of six month with the further direction that the period already undergone be set of from the substantive terms of imprisonment.

The Trial Court by its judgment dated 18.04.2012 convicted and sentenced the Petitioner under Section 307 of IPC, directing him to undergo R.I. for a period of four years and to pay a fine of Rs.1000/- (Rupees One Thousand only), in default, to undergo R.I. for a period of one month with further direction that the period already undergone be set off from the substantive terms of imprisonment.

The prosecution case, in brief, is that on 17.08.2003, at about 8.30 a.m., on the basis of the information lodged by Jestha Mohanta (Informant), it was alleged that his younger son, Biranchi Narayan Mohanta (injured–P.W.4), had gone to his cultivable land near Sarubali Chhak on a bicycle. While returning home at about 9.00 a.m. with bleeding injuries, P.W.4 disclosed that the accused- Petitioner, Sanu @ Sachindra Mohanta, had assaulted him with an axe on his head, hand and thigh with the intention to kill him, causing grievous injuries, and fled believing him to be dead. The injured reached his house, from where Bhagirathi Mohanta (P.W.1) took him to the Hospital.

It was further alleged that a few days prior to the occurrence, a civil dispute between the informant and the accused's father, Kashinath Mohanta, had ended in favour of the informant, who had taken possession of the disputed land. Aggrieved by the outcome, the accused allegedly assaulted P.W.4 with the intention to kill him. As the injured's condition was serious, he was successively referred to the Sub-Divisional Hospital, Karanjia, the District Headquarters Hospital, Keonjhar, and finally to S.C.B. Medical College and Hospital, Cuttack. Thereafter, an FIR was registered in P.S. Case No. 56 of 2003, and upon completion of investigation, charge-sheet was submitted under Sections 307/34 of the IPC.

In order to substantiate the charge, the prosecution examined 8 witnesses, of whom P.W.1, is the younger brother of the injured, P.Ws. 2 and 3 are the Co-villagers, P.W.4 is the injured, P.Ws. 5, 6 and 8 are the doctors who examined and treated the injured, and P.W.7 is the I.O.

Several documents were also exhibited and marked as Exts.1 to 7 on behalf of the prosecution.

The defense examined 3 witnesses, of whom D.Ws. 1 and 2 are co-villagers and D.W.3 is the accused as well as two documents were also exhibited and marked as Exts. A to A/1.

The plea of the defense was one of complete denial and false implication due to previous enmity.

On consideration of the materials on record, the Trial Court convicted and sentenced the Petitioner under Section 307 of IPC, directing him to undergo R.I. for a period of four years and to pay a fine of Rs.1000/- (Rupees One Thousand only), in default, to undergo R.I. for a period of one month with the further direction that the period already undergone be set of from the substantive terms of imprisonment.

On appeal being preferred, the Appellate Court altered the conviction to one under Section 325 of the Indian Penal Code, taking into consideration the site of the injury, the background in which the allegations had been levelled, as well as the defence evidence on record. The Appellate Court, while negating the prayer for release under the Probation of Offenders Act, 1958 (hereinafter referred to as the "P.O. Act"), directed the Petitioner to undergo rigorous imprisonment (R.I.) for a period of two years and to pay a fine of Rs. 1,000/- (Rupees One Thousand only), and in default of payment of fine, to undergo R.I. for a further period of six months, with the further direction that the period already undergone be set off against the substantive term of imprisonment so imposed. Challenging the same, the present revision has been filed.

The case of the defense was one of complete denial and false implication due to previous enemity.

At the outset, learned counsel for the Petitioner, Mr. Barik 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 65 days, the punishment may be confined to the period undergone. It is also submitted that the incident happened on 17.08.2003, 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, considering the facts and circumstances of the case, the prayer for leniency would amount to misplaced sympathy causing injustice to the cause of the injured. And, hence ought not to be entertained.

To appreciate the rival contentions for such limited purpose, this Court evaluated the appreciation of evidence by the Appellate Court in altering the conviction to Section 325 of IPC.

On going through the same, this Court does not find any infirmity in the appreciation of evidence by the Appellate Court in altering the conviction to Section 325 of IPC, taking into account the evidence of the injured as well as, the mitigating circumstances borne out from deposition of the defense witnesses.

Considering the same, while not interfering with the order of conviction under Section 325 of IPC as imposed by the Appellate Court, 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., 17.08.2003, the age of the Petitioner, being 48 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.