Orissa High Court
Jagdish @ Kuturi Mohanty; vs State Of Orissa on 1 July, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.106 of 1992
In the matter of an Appeal under Section 374(2) of the Code
of Criminal Procedure, 1973 and from the judgment of conviction
and order of sentence dated 29th February, 1992 passed by the
learned Additional Sessions Judge, Balasore in S.T. Case
No.19/128 of 1991.
----
1. Jagdish @ Kuturi Mohanty; .... Appellants
and
2. Himanshu Kumar Swain @
Chanduru
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr.G.C. Parija, N.P. Parija and
L. Mishra (Advocates)
For Respondent - Mr.G.N. Rout
Additional Standing Counsel
CORAM
MR. JUSTICE D.DASH
Date of Hearing : 27.06.2024 : Date of Judgment : 01.07.2024
D.Dash,J. The Appellants, by filing this Appeal, have called in
question the judgment of conviction and order of sentence dated
29th February, 1992 passed by the learned Additional Sessions
Judge, Balasore in S.T. Case No.19/128 of 1991.
By the impugned the judgment of conviction and order of
sentence, the Appellant No.1, namely, Jagdish @ Kuturi Mohanty
has been convicted for commission of the offence under section
323 of the Indian Penal Code, 1860 (for short, 'the IPC') and
Appellant No.2 Himanshu Kumar Swain @ Chanduru has been
convicted for commission of the offence under section 324 of the
IPC. Accordingly, Appellant (Jagdish) has been sentenced to
undergo rigorous imprisonment for six (6) months and Appellant
(Himanshu) has been sentenced to undergo rigorous
imprisonment for one (1) year with the usual benefit of set-off.
2. Prosecution case is that some time before the Parliament
Election held in the year 1991, the Informant, namely, Ramesh
Chandra Mohanty (P.W.5) along with P.Ws.1 & 2 and others were
fixing posters of the Political Party (BJP). While they were doing
so, they came to Durga Mandap and wanted to paste posters on
an electric pole standing nearby. This was objected to by the
accused persons and thus they abused P.Ws.1, 2 & 5 in filthy
language. It is further stated that despite that abuse when one of
them (P.W.2) returned to to paste the posters, accused Jagdish
caught hold of him and pressed his neck and also assaulted him.
It is next stated that seeing this, when P.W.5 protested and came
to his rescue, accused Himanshu gave a stab wound on his
abdomen by means of sword, which resulted loss of sense after
having received the fall.
P.W.5 when lodged the information in writing (Ext.4) with
the Officer-in-Charge (O.I.C.), Nilgiri Police Station (P.S.) at the
Hospital where they had gone for treatment, the same being
treated as FIR, the criminal case was registered and investigation
commenced. On completion of the investigation, the Final Form
was submitted placing these accused persons with another,
namely, Narottam @ Jaya Patra (since acquitted) to face the Trial
for commission of the offence 307/323/341/294/34 of the IPC.
3. The Trial Court, upon examination of the evidence and
their analysis, having acquitted accused Narottam, has held these
accused persons guilty for the offence under section 323/324 of
the IPC and sentenced, as indicated above.
4. Learned counsel for the Appellants (accused persons), from
the very beginning, instead of questioning the finding of guilt
against the accused persons, as has been returned by the Trial
Court, submitted that the case had arisen because of the political
rivalry between the two groups; members of the prosecution
party on one and the accused persons on the other as they have
affiliation to two political parties. He further submitted that the
Appellants for some time have remained in custody and by now,
having undergone the mental agony of a criminal trial for thirty-
three years when no such report is forthcoming as regards their
adverse conduct, and they are now earning their livelihood by
doing petty business and cultivation and maintaining the family,
further sentence of imprisonment upon the Appellants would
stand too harsh and that would in no way serve the interest of
justice.
5. Learned Additional Standing Counsel for the Respondent-
State, while submitting that the offence, i.e., 323/324 of the IPC for
which the conviction has been recorded against the Appellants
(accused persons) is punishable with imprisonment of either
description for a term which may extend to one year, or with fine
which may extend to one thousand rupees, or with both and shall
be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both,
contended that the sentence of imprisonment for a period six (6)
months and one (1) year, as has been awarded by the Trial Court
commensurate the offence committed under that circumstance.
6. Keeping in view the submissions made, I have carefully
read the impugned judgment of conviction and have also
extensively travelled through the depositions of the witnesses
(P.Ws.1 to P.W.10).
7. The Appellants (accused persons) stood charged for
commission of the offence under section 307/323/341/294/34 of the
IPC. Upon examination of the evidence of the witnesses
examined from the side of the prosecution, the Trial Court has
found the prosecution to have failed to establish the charge under
section 307/341/294/34 of the I.P.C as against these accused
persons but has found the prosecution to have established its case
against the Appellants (accused persons) under section 323/324 of
the IPC. The Appellants (accused persons) hail from the rural
background and as it appears, they have been undergoing mental
agony of a criminal trial right from the year 1991 till now.
Nothing is placed as regards their criminal antecedent and as the
evidence would reveal, there was no prior planning behind the
incident which took place suddenly under the situations coming
to intervene.
Cumulatively viewing of all these aforesaid, this Court is
the view that the sentence of the period already undergone for
committing the offence under section 323/324 of the IPC by these
Appellants at this distance of time, would serve in the interest of
justice and meet its ends.
Accordingly, the Appellants' conviction for the offence
under section 323/324 of the IPC being confirmed; they are
sentenced to the period already undergone.
8. In the result, the Appeal is allowed in part with the
modification of the order of sentence dated 29th February, 1992
passed by the learned Additional Sessions Judge, Balasore in S.T.
Case No.19/128 of 1991 to the extent as indicated above.
(D. Dash),
Location: HIGH COURT OF ORISSA : CUTTACK Judge.
Date: 04-Jul-2024 14:56:15
Basu
