Dayamaya Sahu And Others vs State Of Orissa

S.S. Mishra, J

The present Criminal Appeal has been jointly filed by five appellants challenging the judgment and order dated 24.02.1998 passed by the learned Sessions Judge-cum-Special Judge, Balangir in G.R. Case No. 411 of 1995/T.R. Case No. 8 of 1996. By the impugned judgment, the learned trial court convicted the appellants for the offences punishable under Section 147 of the I.P.C. and Sections 323 and 341 read with Section 149 of the I.P.C. Each of the appellants are sentenced to undergo rigorous imprisonment for six months for the offence under Section 147 I.P.C., rigorous imprisonment for a further period of six months for the offence under Section 323 read with Section 149 I.P.C., and simple imprisonment for one month for the offence under Section 341 read with Section 149 I.P.C. The learned trial Court also directed that all the sentences shall run concurrently.

This appeal is pending since 1998. When the matter was taken up for hearing, consistently in many dates of hearing, nobody appeared for the appellants. Therefore, on the request of the Court, Mr. Jagdish Biswal, learned counsel has agreed to appear for the appellants to assist the Court as Amicus Curiae.

The prosecution case, in brief, is that the occurrence took place on 05.12.1995 at about 7:00 A.M. in village Ghusuramunda. The victims, Bendala Chhatria (P.W.1), Pahati Bag (P.W.2) and Banita Suna (P.W.4) reside in the Harijanpada of the said village and belong to the Scheduled Caste community and belong to Ganda caste. The accused persons are not members of the Scheduled Castes or Scheduled Tribes. Prior to the incident, the tube-well located in the Harijanpada had become defunct, compelling P.Ws. 1, 2, 4 and other women of the locality to fetch water from a public tube-well situated near the village club. While they were taking water from the tube-well, the accused persons allegedly arrived there in a group and prevented them from using the tube-well. During the altercation, the accused persons allegedly abused and threatened P.Ws. 1, 2 and 4 by hurling caste-related insults, physically manhandled them, and accused Bikram is stated to have assaulted P.Ws. 1 and 4 with a stick, causing injuries to them.

On the basis of the written report (Ext.1) lodged at Luisinga Police Station by P.Ws. 1 and 4 along with one Kunjalata Chhatria, the then O.I.C., Amulya Kumar Das (P.W.5), registered the case and took up investigation. He examined the witnesses and, on his requisition, Dr. Chitta Ranjan Panigrahi (P.W.3) medically examined P.Ws. 1 and 4 at Luisinga P.H.C. and issued the injury reports marked as Exts. 2 and 3 respectively. P.W.5 also visited the spot. Upon completion of investigation, charge-sheet was submitted against the accused persons.

On the basis of the materials available on record, charges were framed against the appellants and on their stance of complete denial and claimed for trial, they were put to trial.

The prosecution, in order to prove its case, examined five witnesses. P.Ws. 1, 2 and 4 were the victims, who supported the prosecution version of the occurrence. P.W.3 was the doctor who examined the injured and proved the injury reports. P.W.5 was the Investigating Officer, who spoke about the steps taken during investigation and submission of the charge-sheet.

The learned trial court after analysing the entire evidence on record individually accorded the finding of guilty of the accused persons and passed a very detailed and exhaustive judgment. Paragraphs-9 and 10 of the impugned judgment will give a clear idea as to how the learned trial court has appreciated the evidence to nail the guilt of the accused, which is reproduced herein below for the convenience of ready reference:-

“9. From the above, it is found that the oral evidence of P.Ws. 1, 2 and 4 is not only free from any material and basic infirmity but also finds corroboration from the contents of the F.I.R. and the medical evidence. It is, therefore, established beyond reasonable doubt that all the accused Persons committed the offence of rioting to prevent P.Ws. 1, 2 and 4, who are women belonging to Harijanpada, from taking water from the Club tube-well. In course of such rioting P.Ws. 1, 2 and 4 were physically restrained and assaulted. Prosecution has established beyond reasonable doubt that the accused Persons are guilty of offence u/s 147 I.P. C. as well at u/s 323 and 341 read with 149 I.P.C.

It is admitted by P.Ws, 1 and 4 that among the accused Persons Jubaraj Mallik is a member of Sch. Caste. Undoubtedly the alleged occurrence had its origin in the segregation of the residents of Harijanpada belonging to Ganda community as is evident for the uncontroverted allegations made by P.Ws. 1 and 2 to the effect that the accused Persons hurled caste aspertions on them to be belonging to Ganda caste. Evidence of D.W. 1 also supports such inference of segregation in view of his admission at Para-5 that Harijan pada residents of the occurrence village take bath in a separate Ghat in the village Pond, However, technically Provision u/s 3 of the Act are applicable only when the accused Persons are not members of a Sch. Caste or a Sch. Tribe. Therefore, the nature of allegations made in this case do not leave scope under the law to hold that the alleged occurrence amounts to atrocities on the members of Sch. Caste, P.W.5 has fairly admitted in his cross-examination that at the time of investigation none brought to his notice that accused Jubaraj is a member of Sch. Caste. In such circumstances, accused persons are found not liable for offence u/s 3(1)(xi) of the Act. It is to be noted that such circumstance does not enure to the benefit of the accused persons in any manner with regard to the proved offences in view of the settled Position of law that defect, if any, in investigation by itself will not bestow upon the accused Persons any Premium if the evidence on record is otherwise found to be trust-worthy and reliable.”

Relying on the afore-mentioned set of evidence on record, the learned trial court in para 11 of the impugned judgement held the accused persons guilty. The same is reproduced for the convenience of ready reference:-

“11. In the result, the accused Persons are found guilty of offences under Section 147 I. P. C. and Sections323 and 341 read with 149 I.P. C. and are convicted thereunder.

However, they are found not guilty of offence u/s 3(1)(xi) of the Act and are acquitted thereof.”

Heard Mr. Jagdish Biswal, learned Amicus Curiae for the appellants and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State.

Albeit, Mr. Biswal, learned Amicus Curiae for the appellants, has strenuously argued the case on merits and taken this Court through the evidence available on record. But, after addressing the Court at some length, he fairly submitted that, having regard to the protracted judicial process that the appellants have undergone and the ordeal of trial faced by them, he would confine his submissions to the quantum of sentence instead of further challenging the conviction.

It is submitted that the incident in question took place in the year 1995, and since then the appellants have been facing the ordeal of criminal prosecution for more than twenty-nine years, including the period of trial and pendency of the present appeal. It is further submitted that Appellant No.1 is aged about 58 years, Appellant No.2 is about 50 years, Appellant No.3 is about 52 years, Appellant No.4 is about 60 years and Appellant No.5 is about 55 years, and therefore, much has changed within this two and half decades.

The learned Counsel further submitted that, considering their age, the long lapse of time since the occurrence, and the prolonged pendency of the matter, sending the appellants to serve out the remaining custody period at this belated stage would serve no useful purpose. It is further submitted that the appellants have clean antecedents, with no other criminal case, similar or otherwise, pending or reported against them. Over the years, they have lived peacefully, well integrated into society, and are presently leading stable family lives. Incarcerating them at this distant point of time, it was urged, would not advance the purpose of justice but rather cause unnecessary hardship to aged individuals and their families.

In view of these circumstances, learned counsel prayed that the appellants be extended the benefit of Section 360 of the Code of Criminal Procedure and/or the Probation of Offenders Act, 1958, considering the nature of the offences, the long passage of time, and their personal circumstances.

In Rattan Lal v. State of Punjab[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.”

Upon thoughtful consideration of the submissions made and after perusal of the record, it is apparent that the occurrence took place over two decades ago. The appellants have already faced the strain and stigma of criminal proceedings for a considerable length of time. They have no previous criminal antecedents and are reported to have maintained peaceful conduct ever since. Having regard to their advanced age, clean background, and the long lapse of time since the incident, I am of the considered view that this is a fit case for extending the benefit of probation to the appellants.

Support for this view may be drawn from the decisions of this Court in Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra[2012 (Supp-II) OLR 469] and Dhani @ Dhaneswar Sahu vs. State of Orissa[2007 (Supp.II) OLR 250] wherein leniency was shown in similar factual circumstances.

In light of the foregoing discussion, while the conviction of the appellants under Section 147 of the I.P.C. and Sections 323 and 341 read with Section 149 of the I.P.C. is affirmed, instead of sentencing them to imprisonment, this Court directs that they be released under Section 4 of the Probation of Offenders Act, 1958, for a period of six months, upon their executing a bond of Rs.5,000/- (Rupees Five Thousand) each within one month with one surety each for the like amount, to appear and receive sentence when they are called upon during the said period and, in the meantime, to maintain peace and good behaviour. The appellants shall remain under the supervision of the concerned Probation Officer during the said period of probation.

Accordingly, the Criminal Appeal is partly allowed. The conviction of the appellants is maintained; however, the sentence is modified in the manner indicated above.

The CRA is accordingly disposed of.

This Court records appreciation of the meaningful and effective assistance rendered by Mr. Jagdish Biswal, learned Amicus Curiae.

He is entitled to the honourarium of Rs.7,500/- (Rupees seven thousand five hundred) as a token of appreciation.