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2007 DIGILAW 651 (ORI)

State of Orissa v. Madhab Chandra Dehury @ Naik

2007-08-24

R.N.BISWAL

body2007
JUDGMENT R. N. BISWAL, J. : This appeal is directed against the judgment and order dated 1.7.1992 passed by the C.J.M.-cum-Assistant Sessions Judge, Keonjhar in Sessions Trial Case No. 111/30 of 1991 wherein while convicting the accused/respondent Madhab Chandra Dehury @ Naik for the offence under Section 324 of I.P.C. he released him under Section 4(3) of the Probation of Offenders Act. 2. Succinctly stated the case of the prosecution is that on 5.8.1991 at about 12.20 P.M. while the informant (P.W.3) and P.W.4 were sitting in the office of B.D.O., Keonjhar, Sadar to ascertain about the development of the retailorship of the lat¬ter, suddenly the accused/respondent along with the co-accused since acquitted stormed into the Block office and inflicted a Farsa blow on the back of P.W.3. When he was attempting to in¬flict another blow on his neck, he warded it off by raising his left hand for which two of his fingers got injured. Immediately P.W.4 took the injured to Town P.S., Keonjhar, where the inured orally reported the incident to the O.I.C. who reduced the same into writing. As the allegation contained in the F.I.R. revealed a cognizable case, the O.I.C. registered it under Section 307/34 of I.P.C. and took up investigation. In course of investigation he visited the spot, prepared the spot map, examined some wit¬nesses, sent the injured under requisition to the hospital and on 24.8.1991 made over charge of the investigation to S.I. Sri Basanta Kumar Panda who after examining some more witnesses submitted Charge Sheet against the accused/respondent and the co-accused, since acquitted under Section 307/34 of I.P.C. under which they faced trial. 3. The plea of the accused persons was complete denial of their involvement in the crime in question. In order to bring home the charge under Section 307/34 of I.P.C. against the ac¬cused persons, prosecution examined seven witnesses in all as against none by the defence. After assessing the evidence on record, the trial Court while acquitting the co-accused held the accused-respondent to be the author of the injuries sustained by P.W.3. But taking into consideration the nature of injuries and the fact that the weapon of offence was not produced before the trial Court, it acquitted the accused-respondent of the charge under Section 307 of I.P.C. and held him guilty of the offence under Section 324 of I.P.C. and released him under Section 4(3) of the P.O. Act. But taking into consideration the nature of injuries and the fact that the weapon of offence was not produced before the trial Court, it acquitted the accused-respondent of the charge under Section 307 of I.P.C. and held him guilty of the offence under Section 324 of I.P.C. and released him under Section 4(3) of the P.O. Act. Being aggrieved with the order of releasing the accused-respondent under Section 4(3) of the P.O. Act, the State of Orissa has preferred the present appeal, as stated earlier. 4. Learned Addl. Standing counsel submits that taking into consideration the nature of injuries, the manner in which the same were caused, the trial Court ought not have released the accused-respondent under Section 4(3) of the P.O. Act. As found from the evidence of Doctor P.W.2 he noticed the following injuries on P.W.3; (i) incised wound 1.1/2" X 1/4" X 1/4" on the back of the neck 1" above the seventh survival vertibra. (ii) incised wound 1/2" X 1/4" on the first phalanx of left ring finger. (iii) incised wound 1/2" X 1/4" on the middle phalanx of left middle finger. According to P.W.3 all the injuries were simple in nature and might have caused by sharp cutting weapon. It is the discretion of the Court whether or not to exercise the powers under Section 4(3) of the P.O. Act, of course such discretion ought not be used lightly. At the same time Courts should make effort to find out, if beneficial provisions of the P.O. Act can be extended to a convict. In the present case, accused-respondent was 30 years at the time of occurrence. There is no proof that he was previously involved in any crime. The injuries sustained by P.W.3 were simple in nature. Unless there are compelling reasons, the appellate Court should not interfere with the discretion of the trial Court intending the benefit of the P.O. Act to a convict. Furthermore, in the case at hand, the occurrence took place on 5.8.91 and the judgment was delivered on 1st July, 1992. So the accused respondent faced the ordeal of trial for about one year. This Government Appeal is pending before this Court since last 15 years. Taking all these facts into consideration, in my considered opinion, it would not be proper to set aside the order passed by the trial Court. So the accused respondent faced the ordeal of trial for about one year. This Government Appeal is pending before this Court since last 15 years. Taking all these facts into consideration, in my considered opinion, it would not be proper to set aside the order passed by the trial Court. Accordingly, the Government Appeal stands dismissed and the judgment and order of the trial Court are hereby confirmed. Appeal dismissed.