Orissa High Court

Tofan Das vs State Of Orissa on 18 November, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                        CRA No.103 of 1998

(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)

Tofan Das                         .......                   Appellant

                                -Versus-

State of Orissa                   .......                Respondent

For the Appellant : Mr. D. P. Dhal, Senior Advocate For the Respondent : Mr. Raj Bhusan Dash, Additional Standing Counsel

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 30.10.2025 :: Date of Judgment: 18.11.2025

S.S. Mishra, J. The present Criminal Appeal is directed against the

judgment and order dated 15th May, 1998 passed by the learned

Additional Sessions Judge, Balasore, in S.T. No. 12/55 of 1997, arising out of G.R. Case No. 418 of 1996 for the offence punishable under

Section 323 of the Indian Penal Code and sentenced the appellant to

undergo rigorous imprisonment for a period of six months. The appellant

was, however, acquitted of the charges under Sections 294, 341, and 307

read with Section 34 of the Indian Penal Code.

2. Heard Mr. D. P. Dhal, learned Senior Advocate, for the appellant

and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the

State.

3. The prosecution case, in brief, is that on 9th April, 1996, at about

5:30 a.m., when the informant, Rabindra Das (P.W.1), was proceeding

along the village road, he was allegedly intercepted by the accused

persons, including the present appellant. It was alleged that the accused

persons abused him in obscene language, and that co-accused Umakanta

Das brought out a bow and arrow from his house and handed over the

same to the appellant, asking him to kill the informant. The appellant

allegedly shot an arrow that struck the left side of the informant's flank,

causing bleeding injury. The informant thereafter lodged an F.I.R.,

leading to investigation and submission of Charge-Sheet against the

appellant and two others under Sections 294, 323, 341 and 307 read with

Section 34 IPC. Charges were framed against all the accused for the

offence, as mentioned above.

4. The defence of the appellant was one of complete denial and false

implication owing to previous enmity. No witness was examined on

behalf of the defence.

5. The prosecution examined four witnesses in all. P.W.1 was the

injured informant, P.Ws.2 and 3 were post-occurrence witnesses, and

P.W.4 was the Medical Officer, who examined the injured.

6. The learned trial Court, upon a detailed evaluation of the evidence

on record, found that while the prosecution had failed to establish the

charges under Sections 294, 341, and 307 read with Section 34 of the

Indian Penal Code against the accused persons, the evidence of P.W.1,

the injured informant, duly corroborated by the medical testimony of

P.W.4, was sufficient to prove that the appellant, Tofan Das, had

voluntarily caused simple hurt by shooting an arrow that struck the left

side of the informant's chest. The learned trial Court accordingly

acquitted the co-accused Umakanta Das and Baburam Das of all the

charges and also acquitted the present appellant of the major offences but

convicted him under Section 323 IPC for voluntarily causing hurt and

sentenced him to undergo rigorous imprisonment for a period of six

months. The relevant portion of the aforesaid judgment is extracted

herein below for ready reference: -

"13. As regards offence U/s.341 & 294 I.P.C. except the evidence of P.W.1 there is no other evidence to lead assurance or corroboration. P.W.1 did not spell out the obscene words used to evaluate its affect whether or not it was enough and intended to insult or cause annoyance to anybody near or at a public place. Therefore, it is held that the evidence of P.W.1 is not enough to establish the charge-U/s.294 & 341 read with section 34 I.P.C against the accused persons. So these charges are not brought home to the accused persons.

14. Now it is to be seen whether the charge U/s.323 read with section 34 I.P.C. or 307 read with section 34 I.P.C. was proved against the accused Tofan Das. The evidence was clear that P.W.1 was alone and there was none to intervene or dispede or discourage the accused persons to further assent P.W.1. Only one injury and that too by arrow was caused by accused Tofan Das. Had the accused intend to actually

murder P.W.1, he could have executed his intention in actual action by assaulting him. P.W.1 further either by arrow or by other means. In the back ground of the fact that there was no obstruction or interference against his attack on the informant. The only one injury could not have satisfy his intention of causing murder of the informant. On that consideration it can safely be concluded that actually causing death of the informant was not intended by the assailant Tofan Das. So the charge U/s.307/34 I.P.C. is not at all established against him. The nature of injury was simple and it was laceration. Though injury was caused by arrow it was not sharp cutting and punctured wound was not found. It was just simple voluntary hurt caused to the informant by accused Tofan Das. Therefore he is held guilty for causing hurt to the informant U/s.323 I.P.C.

15. The evidence as discussed above, does not implicate other two accused persons. Therefore, all the charges failed against the other two accused persons namely Umakanta Das and Baburam Das.

16. On the ultimate analysis of the evidence as discussed in the fore going paragraphs, it is held that the charges U/s.341/294/323/307/34 I.P.C. failed against accused Baburam Das and Umakanta Das and they are acquitted of the said charges.

17. The charges U/s.294/341/307/34 I.P.C. are not brought home to the accused Tofan Das and he is acquitted of the said charges. But the charge U/s. 323 I.P.C. is clearly proved against accused Tofan Das

and he is held guilty U/s.323 I.P.C. and convicted him there-under."

7. Mr. Dhal, learned senior counsel appearing for the appellant, did

not press the appeal on merits and confined his submissions to the

quantum of sentence only. It was urged that the appellant had no

previous conviction, that the occurrence is nearly three decades old, and

that the injury caused was simple in nature. It was further submitted that

the appellant has already suffered the rigors of trial and appeal for an

unduly long period, and that in the facts and circumstances of the case,

he may be extended the benefit of the Probation of Offenders Act, 1958.

8. I have carefully considered the submissions advanced by the

learned counsel for the appellant as well as the learned counsel for the

State, and perused the entire lower Court records, including the

depositions of the prosecution witnesses and the reasoning assigned by

the learned trial Court.

9. It is evident from the record that the learned trial Court, upon a

detailed appraisal of the evidence, disbelieved the prosecution case as

against the other two accused persons and also held that the ingredients

of the more serious charges under Sections 294, 341 and 307/34 IPC

were not proved. The conviction of the appellant under Section 323 IPC

rests substantially on the testimony of the injured informant, which

stands corroborated by the medical evidence. The same, therefore, does

not warrant interference by this Court on the question of guilt.

10. The only question that survives for consideration is with regard to

the proportionality of the sentence. The record shows that the appellant

is a first-time offender and there is nothing to indicate that he has been

previously convicted of any offence. The nature of the injury, as found

by the doctor (P.W.4), was simple, and there was no evidence of any

premeditation or grave provocation. The alleged act appears to have been

the outcome of a sudden quarrel. The appellant has faced the ordeal of

criminal prosecution since 1996 and the appeal has remained pending for

a considerable period of time. Having regard to these circumstances, I

am of the considered view that this is a fit case where the appellant

should be extended the benefit of the provisions of Section 4 of the

Probation of Offenders Act, 1958.

11. Section 4 of the Probation of Offenders Act, 1958 empowers the

Court to release an offender found guilty of having committed an offence

not punishable with death or imprisonment for life on probation of good

conduct, instead of sentencing him to imprisonment, having regard to the

circumstances of the case, the nature of the offence, and the character of

the offender. In the present case, the offence under Section 323 IPC is

punishable with imprisonment up to one year or fine or both, and the

nature of the act, as well as the context in which it occurred, clearly

brings it within the purview of Section 4 of the Act.

12. In Rattan Lal v. State of Punjab, reported in AIR 1965 SC 444,

the Hon'ble Supreme Court held that the object of the Probation of

Offenders Act is to reform the individual offender and to prevent the

conversion of a youthful or first-time offender into a habitual criminal by

subjecting him to prison life. It was held thus: -

"The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below

21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act."

13. The occurrence in question pertains to the year 1996, and nearly

three decades have since elapsed. During this long duration, the

appellant has faced the protracted ordeal of criminal prosecution and

appeal proceedings. Considering the passage of time and the absence of

any subsequent criminal antecedents, this Court is inclined to take a

lenient view in the matter of sentence. Therefore, while not interfering

with the judgment of conviction recorded against the appellant for the

offence as stated above, I am inclined to grant the benefit of the

Probation of Offenders Act so as to suffice the sentence part.

14. Accordingly, while upholding the conviction of the appellant

under Section 323 of the Indian Penal Code, the sentence of

imprisonment imposed upon him by the learned Additional Sessions