Biswamitra Bhue @ Bhoi vs State Of Orissa
2023 Latest Caselaw 10270 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                              CRLREV NO.412 OF 2023

            Biswamitra Bhue @ Bhoi           ...                    Petitioner
                                                    Mr. M.K. Pati, Advocate
                                        -versus-
            State of Orissa                 ....               Opposite Party
                                                      Mr. S.K. Nayak, AGA

                      CORAM:
                      MR. JUSTICE D.DASH

                                        ORDER

Order No.                              29.08.2023

   02.      1.      This matter is taken up through Hybrid Arrangement
            (Virtual/Physical Mode).
            2.      Heard.
            3.      Admit.

4. On consent of the learned Counsel for the Petitioner (accused) and the learned Counsel for the State, the Revision is heard on merit. Order as follows:-

5. The Petitioner, by filing this Revision, has called in question the legality and propriety of the judgment dated 10.07.2023 passed by the learned 2nd Additional Sessions Judge, Balangir in Criminal Appeal No.17/16/31 of 2011-15.

By the same, the Appeal filed by the present Petitioner (accused) and his father namely, Dasarath Bhoi (since dead), challenging the judgment of conviction and order of sentence 30.04.2011 passed by the learned Assistant Sessions Judge, Balangir in Sessions Case No.150/38 of 2009, has been dismissed. The Petitioner (accused) and his father (since dead), having been convicted by the Trial Court for commission of

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offence under section-326 of the Indian Penal Code, 1860 (for short 'the IPC') and sentenced to undergo rigorous imprisonment for two (2) years and pay of fine of Rs.5,000/- 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.5) 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.5, who has stated that incident took place when he objected for the obstruction of nala caused by this accused and his father (since dead) as the water was flowing to his land and that thereafter, the present Petitioner (accused) and then his father (since dead) assaulted the Informant-injured(P.W.5) by tangia. He further submitted that as per the version of the P.W.5, there was no prior planning for the incident which happened all of sudden which must have been preceded by some altercation and other happenings which appear to have been suppressed by P.W.5 for obvious reasons. He therefore, contended that the offences committed by the Petitioner (accused) would accordingly, stand categorized as one under section-325 of the IPC. He further submits that as this Petitioner (accused) in the meantime has lost the other accused, who is his father and has already undergone imprisonment for more than a month, keeping his present age and the fact that he

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hails from rural background, earning his livelihood from cultivation, 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, sentence for undergoing further custodial sentence for said conviction under section-325 of the IPC would not be in the interest of justice and highly disproportionate.

6. Learned counsel for the State submits that the Petitioner having been convicted for commission of offence under section-326 of the IPC, in the facts and circumstances, 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.5, it reveals that he himself had been to the spot where he was assaulted. He has further stated that when he objected to the obstruction caused in the nala by this Petitioner (accused) and his father (since dead), they got enraged. However, it is not stated by P.W.5 as to whether by such act of obstruction by then there was any damage in his field. The nature of injuries no doubt is grievous but in the facts and circumstances, the conviction ought not to have been for the offence under section-326 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 22 years and he too has remained in custody for more than one month.

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In view of all these aforesaid, this Court, while modifying the judgment of conviction passed by the learned 2nd Additional Sessions Judge, Balangir in Criminal Appeal No.17/16/31 of 2011-15 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.35,000/- (Rupees Thirty Five Thousand) in default to undergo rigorous imprisonment for one (1) year with further stipulation that the realized fine amount, be paid to the Informant-injured (P.W.5) as compensation.

9. The CRLREV is disposed of accordingly.

Issue urgent certified copy as per rules.

(D. Dash), Judge.

Narayan

Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 31-Aug-2023 11:42:31