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2026 DAILYLAW 27146 (ORI)

Abhimanyu Ghosh v. State of Odisha

2026-03-06

Biraja Prasanna Satapathy

body2026
Judgment : Biraja Prasanna Satapathy, J. 1. This Revision has been filed challenging the order of conviction and sentence passed by the learned Assistant Sessions Judge, Chhatrapur on 19.01.1994 in Sessions Case No.41 of 1991, further confirmed by the learned Additional Sessions Judge, Berhampur vide his judgment dt.07.06.1995 passed in Crl. Appeal No.85 of 1994. Petitioner was convicted to undergo R.I for 3(three) years and to pay a fine of Rs.1,000/-, in default, R.I for 1(one) month for the offence under Section 307 of the Indian Penal Code and R.I for 1(one) month of the offence under Section 341 of the Indian Penal Code. 2. The prosecution story as narrated in the F.I.R is that the injured, a student of Class-V along with 3(three) of his friends had gone to collect Bambo on the eve of the Ganesh Puja celebration to the house of one Kama Ghosh. While they were outing, the present Petitioner was coming from the other side in a cycle. It is contended that without any reason and basis, the accused-Petitioner stopped at the spot, where the students had gathered and all on sudden by snatching away the Kati from the hand of the injured, assaulted him on his neck and shoulder, for which he sustained injury. 2.1. Petitioner thereafter, left the place with the said weapon of offence and the same was witnessed by the Gram Rakshi, P.W.1. The injured was rescued by P.W.5 and his father P.W.4 and thereafter taken to the hospital. As per the advise of the doctor, the FIR was lodged giving rise to G.R. Case No.333 of 1991 in the file of learned J.M.F.C, Khallikote, arising out of Kodala P.S. Case No.157 of 1991. 3. Learned counsel appearing for the Petitioner contended that Petitioner faced the trial before the learned Asst. Sessions Judge, Chhatrapur after being charged for the offence under Section 307/341 of the Indian Penal Code. It is contended that the prosecution in order to prove its charges against the Petitioner examined 7 nos. of P.Ws which includes P.W.2 as the injured, P.W.6 as the doctor, who examined the injured and P.W.7 as the I.O. P.W.3 is the friend, who had accompanied the injured and P.W.4 is the informant and father of the injured. P.W.1 is an independent witness and P.W.5 is a post-occurrence witness, who had disclosed the incident. The Defence also examined 2(two) nos. of witnesses. 3.1. P.W.1 is an independent witness and P.W.5 is a post-occurrence witness, who had disclosed the incident. The Defence also examined 2(two) nos. of witnesses. 3.1. Learned counsel appearing for the Petitioner while assailing the order of conviction and sentence so passed by the learned Asst. Sessions Judge, further confirmed by the learned Addl. Sessions Judge, contended that taking into account the statement of the injured and statement of the doctor, P.W.6, no case under Section 307 of the Indian Penal Code at all is made out. 3.2. It is contended that both the injuries so found on the injured since are simple in nature and no such medical report having been exhibited in course of the trial, there was no occasion to convict the Petitioner for the offence under Section 307 of the Indian Penal Code. 3.3. It is also contended that even though P.Ws.1 & 3 are the independent witnesses, but they never supported the prosecution case. Since prosecution witnesses never supported the prosecution case, medical report of the injured was never exhibited and both the injuries sustained by the injured being simple in nature, Petitioner could not have been convicted and sentenced for the offence under Section 307 of the I.P.C and at best, basing on the statement of the P.Ws, Petitioner could have been convicted for the offence under Section 324 of the I.P.C. 3.4. It is also contended that the Petitioner in course of the trial, remained in custody for around 1(one) month and 5(five) days and taking into account the fact that the case is of the year 1991 and in the meantime more than 35 years have passed, even if the order of conviction and sentence is upheld by this Court, Petitioner be extended with the benefit of release under the provisions of the Probation of Offenders Act. 3.5. In support of his submission, reliance was placed to a decision of this Court reported in 2021(I) ILR, CUT-428, Anand Nath Vs State of Orissa and Others . This Court in Para-11 of the said judgment has held as follows: 11. It is settled principles of law that to justify a conviction under section 107 of the Indian Penal Code, it is not essential that bodily injury capable of causing death should be inflicted. This Court in Para-11 of the said judgment has held as follows: 11. It is settled principles of law that to justify a conviction under section 107 of the Indian Penal Code, it is not essential that bodily injury capable of causing death should be inflicted. The nature of injury actually caused very ofien gives considerable assistance is coming to as finding relating to the intention of the accused. However, such intention can also be deduced from other circumstances without even any reference to the actual wounds is no necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. The Court has to see is whether the act, inespective of its result. was done with the intention or knowledge and under circumstances mentioned in the section. (Ref: A.L.R. 1983 S.C. 305, State of Maharashtra- Vrs. Balaram Bama Patil) In case of Rekha Mandal Vrs State of Bihar reported in 1968 (VoLB) Supreme Court Decisions 208, wherein seventeen injuries consisting of incised and punctured wounds were caused on the injured by different weapons such as farsa, spear and lathi and none of the injuries was grievous in nature and only two of them were located on the head and neck, it was held as follows- 2…. Medical evidence did not disclose that any of the injuries was cumulatively dangerous to life and the question therefore is whether in these circumstances, it could be held that the offence disclosed was one under Section 307 of the Indian Penal Code. That section requires that the act must be done with such intention or knowledge or under such circumstances that if death be caused by that act, the offence of murder will emerge. The Hon’ble Supreme Court in that case altered the conviction from one under section 307 of the Indian Penal Code to section 324 of the Indian Penal Code. That section requires that the act must be done with such intention or knowledge or under such circumstances that if death be caused by that act, the offence of murder will emerge. The Hon’ble Supreme Court in that case altered the conviction from one under section 307 of the Indian Penal Code to section 324 of the Indian Penal Code. In view of the nature of evidence available on record, the nature of injuries sustained by P.W.I, which were opined by the two doctors to be simple in nature and absence of any other medial document from any hospital or any material to show the after effects of such injuries, 1 am of the considered opinion that the conviction of the appellant under section 307 of the Indian Penal Code is not sustainable in the eye of law and in my humble opinion, the case squarely falls within the ambit of section 324 of the Indian Penal Code. Accordingly, the conviction of the appellant is altered from section 307 of the Indian Penal Code to one under section 324 of the Indian Penal Code. I direct that the sentence be reduced to the period already undergone. It seems that the appellant surrendered in the Court below at the time of investigation of the case on 28.11.1989 and he was released on bail on 22.12.1989 and after the learned trial Court passed the impugned judgment, he was taken into custody on 01.08.1990 and he was granted bail by this Court on 08.08.1990 but after furnishing bail bond, he was released from custody on 14.08.1990 and therefore, he has remained in custody for more than a month. Since the appellant was a young boy at the time of occurrence and in the meantime more than thirty five years have elapsed, while altering the conviction to one under section 324 of the Indian Penal Code, I direct that the sentence be reduced to the period already undergone. 3.6. With regard to release of the Petitioner under the provisions of P.O. Act, Reliance was placed to a decision of this Court in the case of Chinta Marandi@ Chintamani Marandi Vs. State of Orissa , CRREV No.393 of 2000 , decided on 14.07.2022 . This Court in Para-9 & 10 has held as follows. 9. 3.6. With regard to release of the Petitioner under the provisions of P.O. Act, Reliance was placed to a decision of this Court in the case of Chinta Marandi@ Chintamani Marandi Vs. State of Orissa , CRREV No.393 of 2000 , decided on 14.07.2022 . This Court in Para-9 & 10 has held as follows. 9. As regards the submission for releasing the Petitioner as per the provisions of the P.O. Act, it is seen that the occurrence undoubtedly took place more than 30 years back. The Petitioner was a young man at that point of time, but is now aged nearly 60 years. No criminal antecedents are reported against him. Therefore, in the considered view of this Court, ends of justice would be best served if the Petitioner is released as per the provision of Section 4 of the P.O. Act instead of serving the remaining part of the sentence in jail. 10. In the result, the Criminal Revision is allowed in part. The order of conviction passed by the trial Court and confirmed by the lower appellate court is hereby maintained. The sentence imposed by the trial Court is, however, modified to the extent that the Petitioner shall be released as per provisions of Section 4 of the P.O. Act. For the above purpose the Petitioner shall appear before the trial Court on 12 th August, 2022, failing which the trial Court shall pass necessary orders requiring him to serve the remaining part of the sentence as originally imposed. 3.7. Making all these submissions, learned counsel appearing for the Petitioner contended that while converting the conviction and sentence for the offence under Section 324 of the I.P.C in place of Section 307 I.P.C and the offence under Section 341 of the I.P.C and taking into account the fact that the case is of the year 1991, benefit of Probation of Offenders Act be extended. 4. Mr. P.K. Panda, learned Addl. Standing Counsel on the other hand contended that since the present Revision is against a confirming order of conviction and sentence passed by the learned Asst. Sessions Judge, Chhatrapur, confirmed by the Addl. Sessions Judge, Berhampur, this revision in the nature of a Second Appeal is not entertainable. 4.1. 4. Mr. P.K. Panda, learned Addl. Standing Counsel on the other hand contended that since the present Revision is against a confirming order of conviction and sentence passed by the learned Asst. Sessions Judge, Chhatrapur, confirmed by the Addl. Sessions Judge, Berhampur, this revision in the nature of a Second Appeal is not entertainable. 4.1. Since it is not disputed that Petitioner by taking a Kati from the injured, P.W.2 ,assaulted him resulting the injured to sustain 2(two) injuries, on the vital part of the body, no illegality or irregularity can be found with the impugned order of conviction and sentence for the offence under Section 307 of the I.P.C. 4.2. It is contended that P.W.2, the injured, in his deposition clearly stated that the accused while coming in a cycle on the fateful day, stopped nearby the students of the School who had gathered to collect Bambo. By taking away the Kati from the injured, he assaulted P.W.2 and for that assault, P.W.2 not only sustained 2(two) nos. of injury, but also was treated by P.W.6. It is also contended that since allegation of assault by the Petitioner is well proved by P.W.2 and P.W.3 causing 2(two) nos. of injuries on the vital part of his body, no illegality or irregularity can be found with the impugned order of conviction and sentence. 4.3. P.W.2 in his cross-examination in para-6 has held as follows: The accused caught hold of my right hand in his right hand and gave the blow standing on my front. Excepting my friends and P.W.1 who was at a distance of 100 years I have not seen any other outsiders at the time of the incident. I have not reported the matter to the police. 4.4. P.W.3 in para-7 & 8 of his deposition has submitted as follows: 7. Askanda had brought the kati from his house for cutting of the bamboos. 8 . The accused attacked P.W.2 from his front side and gave the kati blow to the neck. The accused had snatched away the kati from P.W.2 by his right hand. 4.5. Learned Addl. Standing Counsel also relied on the statement of P.W.6, who happens to be the Doctor and who had treated the injured. In para-1 of his deposition, P.W.6 has submitted as follows: 1. On 9.9.91, I was Medical Officer attached to Dist. Hospital, Kodala. The accused had snatched away the kati from P.W.2 by his right hand. 4.5. Learned Addl. Standing Counsel also relied on the statement of P.W.6, who happens to be the Doctor and who had treated the injured. In para-1 of his deposition, P.W.6 has submitted as follows: 1. On 9.9.91, I was Medical Officer attached to Dist. Hospital, Kodala. I have attended Askand Ghosh on requisition and found the following injuries. 2. (i) One incised would of size 3” x ½” x ¾” on the right of the neck, transversed place 2” below the right ear. There was bleeding profusely and right sterostic nucole cut into 2 pieces. 3. (ii) Abrasion cut 2 and ½” with skin thickness on the right side of the shoulder between neck and right shoulder joint at the middle skin flap rotated towards neck. Bleeding from the wound. It is situated center posteriori. The above injuries might have been caused by sharp cutting weapon within 6 hours from at the time of my examination at 12 noon. The nature of injury no.(i) is reserved and the patient kept under observation and injury No.(ii) is simple by nature. Ext.1 is my report and Ext.2/1 is my signature. 4.6. Making all these submissions, learned Addl. Standing Counsel contended that since factum of assault by the Petitioner-accused on the injured P.W.2 has been well-proved, no illegality or illegality can be found with the impugned order of conviction and sentence passed by the learned Asst. Sessions Judge,Chhatrapur so confirmed by the learned Addl. Sessions Judge, Berhampur. Accordingly, the Revision is liable for dismissal. 5. Having heard learned counsel appearing for the parties and considering the submission made, this Court finds that the alleged incident occurred on 09.09.1991 and Petitioner was arrested for the alleged offence on 19.09.1991. After submission of the Final Form and on being charged, Petitioner faced the trial for the offence under Section 307/341 of the Indian Penal Code before the Court of learned Asst. Sessions Judge, Chhatrapur. 5.1. The Prosecution in order to prove its allegation examined 7 nos. of P.Ws which includes P.W.2 as the injured, P.W.4-the informant-father and P.W.1 & 3, the independent witnesses to the occurrence. P.W.6 is the doctor who examined the injured and P.W.7 is the I.O. of the case. 5.2. Sessions Judge, Chhatrapur. 5.1. The Prosecution in order to prove its allegation examined 7 nos. of P.Ws which includes P.W.2 as the injured, P.W.4-the informant-father and P.W.1 & 3, the independent witnesses to the occurrence. P.W.6 is the doctor who examined the injured and P.W.7 is the I.O. of the case. 5.2. This Court taking into account the materials available on record finds that even though the injured was treated by the doctor-P.W.6, but no medical report/injury report was exhibited by the prosecution in course of the trial. 5.3. This Court taking into account the materials available on record and the evidence of P.W.6 as well as the nature of injury sustained by the injured-P.W.2, is of the view that the accused-Petitioner instead of being convicted and sentenced for the offence under Section 307 of the I.P.C, should have been convicted and sentenced for the offence under Sections 324/341 of the I.P.C. 5.4. It is also found that even though P.Ws.1 & 3 are the independent witnesses, but they have not supported the prosecution story in toto. Both the injuries being simple in nature and since no medical report is exhibited, this Court while holding the accused- Petitioner guilty of the charges for the offence under Sections 324 of the I.P.C, is inclined to convert the conviction and sentence of the accused-Petitioner for the offence under Section 324/ 341 of the Indian Penal Code. 5.5. However, taking into account the fact that the incident is of the year 1991 and in the meantime more than 35 years have elapsed, this Court placing reliance on the decision in the case of Chinta Marandi so cited supra is inclined to release the Petitioner, as per the provisions of Section 4 of the Probation of Offenders Act, instead of directing the Petitioner to serve the remaining part of the sentence in jail. 5.6. For the above purpose, Petitioner is directed to appear before the trial Court on 13.03.2026, failing which the trial Court shall pass necessary order, requiring him to serve the remaining part of the sentence for the offence under Sections 324 & 341 of the IPC. 6. The CRREV. accordingly stands disposed of with the aforesaid modification. 5.6. For the above purpose, Petitioner is directed to appear before the trial Court on 13.03.2026, failing which the trial Court shall pass necessary order, requiring him to serve the remaining part of the sentence for the offence under Sections 324 & 341 of the IPC. 6. The CRREV. accordingly stands disposed of with the aforesaid modification. This Court while appreciating the help of the learned Amicus Curie in the disposal of this year-old matter, direct the Registry to pay a consolidated fee of Rs.10,000/- (Rupees Ten thousand) only to the learned Amicus Curie.