Orissa High Court
Sanatan Samal vs State Of Orissa on 28 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV NO.367 OF 2023
Sanatan Samal ... Petitioner
Mr. B. Dalai, Advocate
-versus-
State of Orissa .... Opposite Party
Mr. S.K. Nayak, AGA
CORAM:
MR. JUSTICE D.DASH
ORDER
Order No. 28.08.2023
02. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. Heard.
3. Admit.
4. The Petitioner, by filing this Revision, has called in
question the legality and propriety of the judgment dated
23.06.2023 passed by the learned Sessions Judge, Nayagarh in
Criminal Appeal No.19 of 2023.
By the same, the Appeal filed by the present Petitioner
(accused) challenging the judgment of conviction and order of
sentence dated 20.04.2023 passed by the learned Assistant
Sessions Judge, Khandapara in S.T No.44/15 of 2016, has been
dismissed. The Petitioner (accused), having been convicted by
the Trial court for commission of offence under section 326 of
the Indian Penal Code, 1860 (for short 'the IPC') and sentenced
to undergo rigorous imprisonment for a period of 3 years and
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pay of fine of Rs.3000/- in default to undergo rigorous
imprisonment for 6 months, the same have been confirmed by
the Appellate Court.
5. At the outset, learned counsel for the Petitioner
(accused) instead of questioning the concurrent finding of the
Courts below as to the role played and act done by the present
Petitioner (accused) in the said incident in assaulting the
Informant-injured (P.W.4) submits that the Courts below ought
not to have convicted the Petitioner (accused) for commission
of offence under section 326 of the IPC. In that connection, he
has invited the attention of this Court to the deposition of
P.W.4, who has clearly stated that when the Petitioner
(accused) was going to give a blow on him by an axe, he in
order to thwart the same having raised his hand, the blow fell
on his hand and he sustained the fracture. He therefore,
contends that the offence committed by the Petitioner (accused)
would accordingly stand categorized as one under section 325
of the IPC. He further submits that with the conviction of the
Petitioner for the offence under section 325 of the IPC, since he
in the mean time has undergone imprisonment for one month
and twenty days, at this stage keeping in view the age of the
Petitioner (accused) and the fact that he hails from a rural
background, on whom the whole family depend, in the absence
of any report that the Petitioner (accused) has during the time
indulged in any criminal activity or that he was having criminal
antecedent, further custodial sentence would not be in the
interest of justice and highly disproportionate.
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6. Learned counsel for the State submits that the Petitioner
having rightly been convicted for commission of offence under
section 326 of the IPC, in the facts and circumstance the
sentence as has been awarded commensurate the crime.
7. Keeping in view the submission made, I have carefully
read the judgments passed by the Courts below.
8. Given a reading to the deposition of P.W.4, it reveals
that the fracture as has been found on the left hand of the
Informant (P.W.4) is not the result of the blow, which the
Petitioner (accused) had aimed at and that has come into being
for the intervention of P.W.4 in raising his hand. The nature of
injury no doubt is grievous but then, in the facts and
circumstances, the conviction ought to have been for the
offence under section 325 of the IPC. Furthermore, the
submission of the learned counsel for the Petitioner (accused)
as regards the non-imposition of further custodial sentence is
accepted when it is seen that the Petitioner (accused) has been
undergoing the mental agony of a criminal trial for more than 7
years and he too has remained in custody for more than one and
half month.
In view of all these aforesaid, this Court, while
modifying the judgment of conviction passed by the learned
Sessions Judge, Nayagarh in Criminal Appeal No.19 of 2023
and holding that the Petitioner (accused) is liable for
commission of offence under section 325 of the IPC; imposes
the sentence of imprisonment for the period undergone and fine
of Rs.25,000/- (Rupees Twenty Five Thousand) in default to
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undergo simple imprisonment for 1 (one) year with further
stipulation that the realised fine amount be paid to the
Informant-injured (P.W.4) as compensation.
09. The CRLREV is disposed of accordingly.
Issue urgent certified copy as per rules.
(D.Dash)
Judge
Gitanjali
Signature Not Verified
Digitally Signed
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: OHC
Date: 31-Aug-2023 15:02:05
