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Judgment
S.S. Mishra, J. The present appeal has been preferred by the appellants challenging the judgment of conviction and order of sentence dated 26.03.2026 passed by the learned Additional District and Sessions Judge, Athagarh in S.T. Case No.76 of 2022/C.I.S. No.76 of 2022 arising out of Khuntuni P.S. Case No.98 of 2021, whereby, while acquitting the appellants of the charges under Sections 341/294/307/506 read with Section 34 of the I.P.C., the learned trial Court convicted them for the offence punishable under Section 323 read with Section 34 of the I.P.C. and sentenced appellant No.1 to undergo simple imprisonment for four months and to pay a fine of Rs.1,000/-, in default whereof to undergo further simple imprisonment for one month, and appellant No.2 to undergo simple imprisonment for ten months and to pay a fine of Rs.1,000/-, in default whereof to undergo further simple imprisonment for one month.
Heard Mr. Sushanta Harichandan, learned Counsel for the appellants and Mr. Jateswar Nayak, learned Additional Government Advocate for the State.
The prosecution case, as unfolded in the written report lodged by the informant-Kamini Naik on 19.08.2021 at about 10.51 P.M. before the I.I.C., Khuntuni Police Station, is that on 19.08.2021, as usual, her husband had gone to sell firewood. At about 8.00 A.M., while the informant was cooking in the kitchen, her sister-in-law, namely, Niasa Naik, demanded money from her towards payment of the electricity bill and threatened that otherwise she would be driven out of the house. When the informant expressed her inability to pay the money, Niasa Naik and her daughter allegedly dragged her out of the house by holding her hair and told her that unless she paid a sum of Rs.10,000/-, she would not be permitted to stay in the house. When the informant again expressed her inability to arrange the said amount, the accused persons continued to drag her.
It is further alleged that when the husband of the informant intervened, accused Binod Naik brought an axe and assaulted him on his head near the right ear, resulting in a severe bleeding injury. On hearing the cries of the informant and her husband, the accused persons fled from the spot. The injured was thereafter shifted to S.D.H., Athagarh, in a 108 Ambulance for treatment.
On the basis of the written report lodged by the informant, the I.I.C., Khuntuni Police Station registered Khuntuni P.S. Case No.98 of 2021 dated 19.08.2021 for the offences punishable under Sections 341, 294, 323, 506 and 307 read with Section 34 of the I.P.C. and directed A.S.I. Trilochan Nayak to take up investigation of the case. On completion of investigation, charge-sheet was submitted against the accused persons for the offences punishable under Sections 341, 323, 294, 307 and 506 read with Section 34 of the I.P.C., to stand their trial.
On the basis of the materials placed along with the charge-sheet, the learned S.D.J.M., Athagarh took cognizance of the aforesaid offences and, upon appearance of the accused persons, committed the case record to the trial court. After hearing the parties, the Court, vide order dated 19.05.2023, framed charges against the accused persons for the offences punishable under Sections 341, 323, 294, 307 and 506 read with Section 34 of the I.P.C. The accused persons pleaded not guilty to the charges and claimed to be tried.
The accused persons denied the allegations levelled against them and pleaded false implication.
In order to substantiate the charges, the prosecution has examined eight charge-sheeted witnesses, including the informant, the injured, the medical officer and the Investigating Officer. P.W.2-Kamini Naik is the informant, whereas P.W.1-Pramod Naik is the injured in the case. P.W.4-Dr. Ashok Kumar Dash was the Medical Officer who treated the injured, and P.W.8-Trilochan Nayak was the Investigating Officer. P.W.3-Laxmidhar Nayak, P.W.5-Gadabari Naik and P.W.6-Chandan Naik were stated to be independent witnesses to the facts and circumstances of the case. P.W.7-Kailash Chandra Rout was the scribe of the F.I.R.
Besides the oral evidence of the aforesaid witnesses, the prosecution has proved the F.I.R. as Ext.2, the injury report as Ext.1, the spot map as Ext.3 and the injury requisition issued in favour of the injured as Ext.4. On the other hand, no oral or documentary evidence has been adduced on behalf of the defence.
The learned Trial Court, upon appreciation of the evidence of the independent witnesses as well as the treating doctor, who had examined and treated the injured upon police requisition, arrived at a finding that the prosecution had been able to establish the charge under Section 323 read with Section 34 of the I.P.C. against the appellants. At the same time, the learned Trial Court, upon appreciation of the evidence on record, observed that the prosecution had failed to prove the other charges levelled against the accused persons beyond reasonable doubt and, accordingly, acquitted them of the said charges. The relevant observations of the learned Trial Court, which led to the judgment of conviction, are extracted hereunder:
“14.All the above witnesses i.e. P.W-1, P.W-2, P.W-5 and P.W-6 are direct witnesses to the occurrence. P.W-5 and P.W-6 being present near the spot have seen the entire occurrence. They are no way related to either party. Their evidence reveals, they have deposed regarding the facts what they have witnessed during the alleged occurrence. There is no reason on their part to depose falsehood against the accused persons. All the above witnesses have categorically deposed that the accused gave a tangia blow on the head of injured near his right ear causig severe bleeding injury. The above evidence of injured, informant and independent witnesses find support from the evidence of P.W-4, the medical officer who had treated the injured soon after the incident. P.W-4 has proved his report vide Ext.P-1. The Ext.P-1 as well as the evidence of P.W-4 reveal that on examination P.W-4 found a bruise of size 1/2" X 1/2" at the right ear lobe of the injured and submitted his report on 09.09.2021 after receipt of requisition from the Khuntuni police. The evidences of above witnesses also find support from the evidence of investigating officer (P.W-8). His evidence reveals, in course of investigation, he issued injury requisition and obtained injury report from the treating doctor and submitted with the case record. They have adduced cogent, concrete and reliable evidence of causing hurt on the parietal region of the injured. Although the defence in course of his argument submitted that the weapon of offence i.e. the alleged Tangia (Axe) was neither seized nor produced before the Court, which creates doubt on the case of prosecution. But in the present case the above submission of defence is not acceptable as the prosecution has successfully proved its case by adducing reliable and trustworthy evidence. That apart, in all cases, none-production of weapon of offence is not fatal to case of prosecution, if the case of prosecution is otherewise proved. In AIR 2014 SC 2587 [Md. Jamiluddin Nasir (S) v. State of West Bengal (S)], the Hon'ble Apex court has held that non-production of weapon used in attack by accused, is neither fatal to prosecution nor any adverse inference can be drawn on that score. From the above discussion, it is established that the prosecution has well proved the injury on the person of injured by adducing cogent, concrete and reliable evidence.
15.Now it is to be seen whether the case proved against accused persons attract offence u/S.323 of the I.P.C. or Sec.307 of the I.P.C. or both. In this regard the evidence of P.W-4, the medical officer is to be looked into. The evidence of P.W-4 reveals, on examination, he found a bruise of size 1/2" X 1/2" at the right ear lobe of the injured. The injury was simple in nature. To attract offence u/S.307 of the I.P.C. the prosecution must establish that the accused acted with the specific intent or knowledge to cause death, followed by an overt act. In the present case, admittedly the accused Binod Naik has inflicted a tangia blow on the parental region of injured and due to his tangia he fell down, but there is no material appearing in the evidence of P.W-1, the injured and P.W-2 the informant that the accused attempted to give subsequent assault on the person of injured in order to kill him. Further, the injury report reveals the injury was not cut injury which might be possible through hard and blunt object for which the injury has been inflicted through the blunt side and not through the sharp edge. Hence the intention of killing the injured not appearing from the alleged assault. The guilty mind is a critical element in establishing liability under 307 I.P.C. Here in the present case, the prosecution has failed to established the guilty mind of the accused. Though at the time of occurrence, the accused had sufficient opportunity to give subsequent blows after the blow inflicted by him on the parietal region of injured, but he has not done so and left the spot. Had he any guilty mind to commit murder of the injured (P.W-1) he would have given subsequent blows on the person of injured. It is admitted fact that while the accused Niasha @ Sulochana and the informant were quarreling, the injured Chagala @ Pramod Naik intervened. At that time the accused Binod who was having an Axe with him, gave a blow on the head of injured. He has not attempted to give second assault on the person of injured. The above fact clearly goes to show that the accused had no intention to commit murder of the injured. As such, the prosecution failed to establish the charge u/S.307 of the I.P.C. against the accused persons.
16.In this case, the prosecution has well proved that the accused Binod Naik has assaulted the injured on his head causing simple injury. The evidence on record further reveals, the accused Sulochana Naik was present on the spot and was instigating accused Binod Naik to give blows with the tangia on the person of injured. She has actively participated in the alleged incident for which she is jointly liable for the offence proved against the accused Binod Naik.
17.From the above discussions and findings thereon, this Court is of considered opinion that the prosecution has miserably failed to establish the charges u/Ss.341/294/307 and 506 read with Sec.34 of the I.P.C. against the accused persons and in tersm of Sec.235(1) of the Cr.P.C. the accused persons are acquitted therefrom. At the same time, the prosecution has successfully established the charge u/S.323 read with Sec.34 of the I.P.C. by adducing cogent, concrete and reliable evidence and both the accused persons are found guilty for the charge u/S.323 read with Sec.34 of the I.P.C. and convicted thereunder”
Aggrieved by the aforementioned findings leading to conviction and sentence recorded against the appellants, the appellants have filed the present appeal.
At the outset, Mr. Harichandan, learned counsel for the appellants, fairly submitted that he would confine his submissions to the quantum of sentence. Learned counsel submitted that the occurrence took place in the year 2021 and that the appellants have undergone the rigors of trial for about five years and then have been subsequently convicted by the impugned judgment during the current year and the present appeal has been preferred. It is also submitted on behalf of the appellants that they have undergone certain period as under trial prisoner in custody. It was further submitted that the appellants have since settled in life and that directing them to undergo the remaining part of the sentence would serve no meaningful purpose.
Learned counsel further submitted that the appellants have no criminal antecedents and that no other criminal cases is stated to be have been pending against them. It was urged that they have remained integrated with society over the years and are leading peaceful lives. In such circumstances, their incarceration at this 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 passage of time, the nature of the offences, the period of custody undergone, 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.
Upon a careful appraisal of the evidence on record and the fact circumstances of the case, this Court finds no infirmity in the findings recorded by the learned trial Court. The testimonies of the injured witnesses, P.W.1 and other independent witness are cogent, consistent and inspire confidence. Their version stands duly corroborated by the medical evidence adduced by P.W.4. Nothing material has been elicited in their cross-examination so as to discredit their testimony. This Court is, therefore, of the considered view that the prosecution has successfully established the guilt of the appellants under Sections 323 read with Section 34 of the Indian Penal Code beyond all reasonable doubt. Consequently, the conviction recorded by the learned trial Court warrants no interference.
The record reveals that the occurrence relates back to the year 2021. They were convicted by the impugned Judgment and Order of sentence passed by the learned trial court during the present year. More than five years have elapsed since the occurrence, and much water has flown under the bridge. It is not in dispute that the appellants have no criminal antecedents, no other criminal case is stated to be pending against them, and that they have undergone a certain period in custody. During the interregnum, they have remained integrated with society and are stated to be leading a settled life. In such circumstances, 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 Sections 323/34 of the Indian Penal Code, lapse of more than five years since the occurrence, the custody undergone, the absence of any criminal antecedent and the settled life presently being led by the appellants, this Court is of the considered opinion that the appellants deserves 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 present Criminal Appeal, so far as the conviction is concerned, 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 three months on their executing a 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 three months.
Accordingly, the Criminal Appeal is partly allowed.