"Too Harsh To Send Them To Prison": Orissa HC Extends Benefits Of Probation Of Offenders Act To Convicts In '18 Years Old' Grievous Hurt Case

"The case record reveals that after being arrested, the petitioners have spent some days in custody. Undoubtedly, 18 years have passed in the meantime. Therefore, taking into consideration the social background of the petitioners and lack of any criminal antecedents to their names, this Court also feels that it would be too harsh to send them to prison at this distance of time to serve the remaining part of the sentence. As such, it is deemed proper to extend the benefit of the P.O. Act to the petitioners."

Section 4 of the PO Act empowers Court to release certain offenders on probation of good conduct.

Factual Background:

On 04.08.2001, while Pabitra Mirdha, the uncle of the informant, was returning home after attending the call of nature, the three accused persons assaulted him by means of axe and lathi on the village road, causing severe bleeding injuries on his person. Upon hearing about the incident, the informant rushed to the spot and reported the matter at Police Station. Upon completion of investigation, charge sheet was submitted against the accused persons under Sections 307/323/325/34 of IPC. Consequently, the prosecution was successful in proving the charge under Sections 323/325/34 of IPC.

Being aggrieved, the petitioners preferred an Appeal, which was disposed of by the Additional Sessions Judge, Sambalpur. It was urged before the lower appellate Court that the trial Court should have disbelieved the prosecution allegation as the independent witnesses did not support its case. Moreover, there was material contradiction in the evidence of the informant as compared to P.Ws. 4, 5 and 6.

The Lower Appellate Court after re-appraisal of the evidence on record, held that there is no reason to disbelieve the version of the witnesses as the so-called contradictions and discrepancies pointed out by the defence are negligible in nature. It was further held that the plea taken by the defence is palpably false. Holding thus, it found no reason to interfere and therefore, dismissed the appeal. Feeling aggrieved, the accused petitioners have approached the High Court in the present revision.

Contentions of the Petitioners:

Mr. P.K. Jena, counsel for the petitioners, contended that in the absence of any independent corroboration, the evidence of P.Ws. 3, 4, 5 and 6 lacks credibility, as they are all related to the injured and therefore, both the Courts below committed error in relying upon such evidence. It was further submitted that the defence plea was plausible but was rejected without any justified reason. It was also argued that even otherwise the Courts below should have extended the benefit of Probation of Offenders Act to the petitioners considering the social background and their age.

Contentions of the Respondent:

Mr. S.K. Mishra, the Additional Standing Counsel, supported the judgments of the Courts below by contending that the same are based on clear, cogent and consistent evidence. He further argued that law does not always require corroboration from independent sources, particularly when the evidence of witnesses is found to be trustworthy. As regards the defence plea, it is contended that the same is on the face of it difficult to believe. On the question of sentence, it is contended that since minimum sentence has been imposed, there is no justification for extending the provisions of P.O. Act to the petitioners.

Observations and Decision of the Court:

The Court noted, the prosecution case is that the accused persons assaulted the injured (P.W. 4) by means of lathi and axe, is clearly proved from the testimony of the injured himself. The nature of injuries sustained by him are proved by the doctor (P.W. 10), who clearly opined that the same was possible to be caused by any hard and blunt object.

However, the Court also noticed that there is some confusion with regard to presence of eyewitnesses at the spot of occurrence. The informant said that he had seen the occurrence as it took place in front of his house, but the same appeared to be an improvement from his initial version in the FIR to the effect that when he came to the spot, he saw the injured lying in an injured condition. The same was taken in contradiction in cross-examination. Similarly, P.W. 5 (the wife of the injured) also stated to have seen the occurrence. There is some contradiction in her evidence too, but overall, she has stood firm in her testimony.

P.W. 6, who appeared to be an independent witness, it was her version that on hearing hulla she came out from her house and saw all the accused persons were chasing Pabitra Mirdha and they assaulted him and left the place after causing bleeding injuries.

Above all, if the version of the injured himself is considered, the Court observed that he clearly deposed that while he was going to a nala to attend the call of nature, all the accused persons chased him and he ran towards his house and suddenly an accused person came near him and gave a blow on his chest by a lathi and that he lost sense and fell down. After he regained sense in Hospital, his wife told that all the accused persons had assaulted him and that there were injures on his head besides other parts of the body.

The Court accordingly held that if barring the minor discrepancies, the above evidence is considered as a whole, the same comes out as truthful and convincing as nothing has been elicited in cross-examination to view the testimonies with doubt. The victim sustained five injuries including three lacerated injuries and two abrasions, as proved by the doctor (P.W. 10). Hence, only because no other independent person came forward to support the story does not necessarily mean that the same was false.

The Court further held that even considering the defence plea that the injured had himself chased the accused persons one day prior to the occurrence and fell down on the ground and the axe he was holding came in contact with his face causing the injuries, the same does not at all inspire confidence so as to be believed. Consequently, the Court found no fault with the decisions of the Trial Court as well as the Lower Appellate Court. However, the Court expressed its reservation for sending the convicts to prison again to complete their remainder of imprisonment terms. It observed,

"Coming to the sentence, it is argued by learned counsel for the petitioner that the occurrence took place way back in the year 2004. Nearly 18 years have passed by in the meantime. Petitioner no. 1 is aged about 48 years, while petitioner no. 2 is aged about 78 years and petitioner no. 3 is aged about 73 years. Since the incident arose out of a prior dispute and the matter has since been settled with the injured in the village as submitted by learned counsel for the petitioners, it would be too harsh to send them to prison to serve the remaining part of the sentence at this belated stage."

As a result, the Court extended the benefits of Section 4 of the PO Act, and exonerated the convicts from undergoing any further imprisonment.

Case Title: Rohita Mirdha & Ors. v. State of Orissa

Case No.: CRL REV No. 1014 of 2006

Judgment Dated: 05 April 2022

Coram: Justice Sashikanta Mishra

Counsel for the Petitioners: M/s. P.K. Jena, N. Panda and D.P. Mohapatra, Advocates

Counsel for the Respondent: Mr. S.K. Mishra, Addl. Standing Counsel

Citation: 2022 LiveLaw (Ori) 42

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