Orissa High Court
Unknown vs State Of Odisha .... Opposite Party on 29 January, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.40 of 2025
(In the matter of an application Under Section-442 read
with Section 438 of BNSS, 2023, r/w Sec. 397 of CrPC,
1973)
Dhruba Charan Jena & Others .... Petitioners
-versus-
State of Odisha .... Opposite Party
For Petitioner : Mr. R.N. Rout, Advocate
For Opposite : Mr. R.B. Mishra, Addl. PP
Party
CORAM:
JUSTICE G. SATAPATHY
DATE OF HEARING & JUDGMENT:29.01.2025(ORAL)
G. Satapathy, J.
1. This present revision is directed against
the impugned judgment dated 08.01.2025 passed by
the learned District & Sessions Judge, Jajpur in
Criminal Appeal No.28 of 2024 altering the conviction
of the revision-Petitioners for offence one U/S.
323/34 of the IPC from offences U/Ss.323/308/34 of
IPC and modifying their sentence directing each of
them to undergo rigorous imprisonment (RI) for four
months and to pay a fine of Rs.500/- in default
whereof, to undergo RI for fifteen days.
2. The facts in precise are that the revision-
Petitioners were charged for committing offence
U/Ss. 341/323/294/308/506/34 of IPC on the
allegations that the revision-Petitioners in furtherance
of their common intention had assaulted the injured
PW3 Suvendu Mohanty and PW4 Sujit Mohanty
respectively on their head and belly, as a result both
of them sustained injuries. Accordingly, the revision-
Petitioners faced the trial before the Court of learned
Chief Judicial Magistrate-cum-Asst. Sessions Judge,
Jajpur in C.T. (Sessions) Case No.43 of 2016 which
was ultimately disposed of by the learned Chief
Judicial Magistrate-cum-Asst. Sessions Judge, Jajpur
vide judgment dated 26.11.2024 passed in the
aforesaid case convicting the Petitioners for offence
punishable U/Ss. 323/308/34 of IPC and directing
each of them to undergo RI for one year for offence
U/Ss. 323/34 of IPC; and to undergo RI for seven
years for offence U/Ss. 308/34 of IPC. Being
aggrieved, the revision-Petitioners preferred an
appeal before the learned District & Sessions Judge,
Jajpur in Criminal Appeal No.28 of 2024 and
accordingly, their conviction was altered for offence
one U/S. 323/34 of the IPC from offences
U/Ss.323/308/34 of IPC and their sentence was
accordingly reduced to RI for four months with
payment of pay a fine of Rs.500/- in default whereof,
to undergo RI for further fifteen days. Being
aggrieved, the revision-Petitioners have carried this
revision to this Court.
3. In the course of hearing, Mr. Rajendra
Narayan Rout, learned counsel for the Petitioners
without disputing and challenging the conviction of
the revision-Petitioners for offence U/Ss.323/34 of
IPC prays to modify/reduce the sentence of the
revisional Petitioners to the period already undergone
on the ground that the Petitioner Nos.1 & 2 are not
only elderly persons, but also are aged about 75 and
68 years and they have already remained in custody
for more than three months and Petitioner No.3 had
not actively participated in the crime and he has
already been detained in custody for near about two
months and no adverse report have been submitted
against them.
3.1. On the other hand, Mr. R.B Mishra,
learned Additional Public Prosecutor does not dispute
with regard to prayer for modification or reduction of
sentence, but he, however, submits that since the
sentence as imposed by the learned Sessions Judge is
commensurate to the crime, the revision deserves to
be dismissed. Accordingly, Mr.Mishra prays to dismiss
the revision.
4. After having considered the rival
submissions upon going through the materials placed
on record, since there is no challenge with regard to
conviction of the Petitioners for offence U/Ss. 323/34
of IPC, this Court does not want to enter into the
realm of the merits of the case, but confines itself to
the limited issue of the sentence of the revision-
Petitioners inasmuch as the Petitioners never
challenge their conviction for offence U/S. 323/34 of
IPC. In the aforesaid background, when the sentence
of the revision-Petitioners is considered, one thing
comes in the mind of the Court that the Petitioner No.
1 is aged about 75 years and Petitioner No.2 is 68
years and no fruitful purpose would be served by
keeping them in custody, more particularly when they
have already undergone substantial period of
sentence as awarded by the learned appellate Court.
Further, it is not in dispute that the revision-
Petitioners are first time offenders, but the learned
Appellate Court has passed sentence by duly
considering the PO report. It is also not in dispute
that the Petitioner No.3 although present at the spot
had not actively participated in the crime and the
offence was committed without any premeditation.
True it is that undue sympathy on convict is uncalled
for and at the same time, this Court is reminded of
the quote of Adam Smith an Scottish Philospher
"Mercy to the guilty is cruelty to the innocent", but
when awarding punishment to the convict/guilty, the
Court has to see that the punishment must be
commensurate to the act of the offender, however, at
the same time, the purpose/objective of the
punishment is to be kept in mind. It is not in dispute
that the objectives of punishment is to finish the
crime, but not the criminals and, therefore, in this
case having due regard to the age of the revision-
Petitioners and their conduct, so also the period
undergone by each of them, out of the sentence
awarded, this Court considers that interest of justice
would be best served, if the sentence of the
Petitioners is reduced to the period already
undergone by each of the revision-Petitioners.
Accordingly, it is ordered.
5. In the result, the criminal revision stands
dismissed on contest, but in the circumstance, there is
no order as to costs. Consequently, the conviction of
the revision-Petitioners is maintained, but the sentence
is modified to the extent indicated above.
Since the Petitioners are in jail custody, warrant
of release along with copy of this judgment be
immediately sent to the Officer-in-Charge of the
concerned jail through e-mail or any other faster mode
of communication for release of the petitioners from
custody.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 29th January, 2025/Priyajit
Location: HIGH COURT OF ORISSA
