Arjun Ghiuela Vs State

sentenced to pay a fine of Rs.1,000/-, in default to undergo S.I. for one month and the appellant No.2 was sentenced to undergo S.I. for three months and to pay a fine of Rs.1,000/-, in default to undergo S.I. for one month.

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2. The present appeal has been pending since 2009. When the matter was called for hearing, consistently none appeared for the appellants. Therefore, this Court requested Ms. Sthitipragyan Sunandini, learned counsel, who was present in Court to assist the Court as Amicus Curiae.

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She has readily accepted the same and after obtaining entire record, assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Ms. Sunandini.

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3. Heard Ms. Sthitipragyan Sunandini, learned Amicus Curiae for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State.

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4. The prosecution case, in terse and brief, is that the accused persons and the injured, Basudev Herna, are residents of Rampur under Patnagarh Police Station and were on friendly terms. On the date of occurrence, i.e., on 14.10.2007, they were jointly executing a

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construction work on contract basis. At about 9:15 p.m. on the same day, a dispute arose at Rampur market near the Hanuman temple between the accused persons and one Santosh Bihari over payment to the labourers. Basudev intervened in order to pacify the situation. At this juncture, the accused Arjun Ghivela (appellant No.1) allegedly abused Basudev (injured) in obscene language (“SALA MAGIHA”) and threatened to kill him. Thereafter, accused Guru Thakur (appellant No.2) is stated to have struck Basudev on the head with a bamboo lathi. As a result, Basudev sustained a bleeding head injury and became unconscious. The accused persons fled from the spot. Santosh Bihari immediately informed Jaydev Herna, the brother of the injured.

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Upon receiving information, Jaydev and his father reached the spot, rescued Basudev, and shifted him to Patnagarh Hospital for treatment. After regaining consciousness, Basudev narrated the incident to them. Co-villagers-namely, Ramanath Hota (P.W.9), Laxman Thakur (P.W.8), Mantu Seth (P.W.7), and others including Santosh Bihari (not examined)-are stated to have witnessed the assault.

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On the basis of the written report lodged by the informant-Jaydev Herna on 15.10.2007 at about 10:00 a.m., Patnagarh P.S. Case No. 245 of 2007 was registered. Investigation was entrusted to Karunakar Bag (I.O. of the present case), who issued an injury requisition to the S.D.M.O., Patnagarh, examined the informant and other witnesses under Section 161 Cr.P.C., visited the spot near the Hanuman temple chowk; seized a bamboo lathi lying at the place of occurrence in presence of witnesses; obtained the injury report; and sought medical opinion regarding the seized weapon. After completion of investigation, chargesheet was submitted against the accused persons under Sections 341/323/307/294/34 of I.P.C. On their stance of complete denial of their involvement in the crime and claim of trial, they were put to trial on framing of charges.

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5. The prosecution in order to prove its case examined as many as ten witnesses. Out of whom, P.W.1 is the injured, P.W.4 is the informant and the brother of the injured (P.W.1), P.W.3 is the father of the injured. P.Ws.5, 7, 8 and 9 were the eye witnesses to the assault, out of whom, P.Ws.5 and 9 have been declared as hostile. P.W.2 was the doctor, who

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examined the injured and the weapon of offence, P.W.6 was the seizure witness and P.W.10 was the Investigating Officer of this case. On the other hand, the accused persons examined two witnesses to support their case, namely, D.W.1 and D.W.2.

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6. Initially the appellants were charged for the offence under Sections 341/323/307/294/34 of I.P.C. However, the learned trial Court by appreciating and analysing the evidence of P.W.1, the injured, P.W.4, the brother of the injured, who proved the F.I.R., P.W.3, the father of the injured and the doctor (P.W.2), arrived at a conclusion that this is not a case under Section 307 of I.P.C. as the prosecution failed to bring home the charge of intention of the appellants to commit murder. The learned trial Court on the same set of evidence held that the appellants are also not found guilty of the offences under Sections 341/294/34 of I.P.C., however, they were found guilty of the offence under Section 323 of

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I.P.C. The reasoning of the learned trial Court is reflecting in paragraphs-17 & 18 of the judgment, which reads as under:-

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“17. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is

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not essential that bodily injury capable of causing death should have been inflicted. The Section where a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.

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18. Keeping in view the aforesaid principles to warrant a conviction U/s 307 I.P.C. the evidence on record is to be scanned to find out if the overt act of the accused persons by assaulting the injured was with an intention and knowledge to commit his murder. In order to warrant a conviction U/s 307 IPC, the prosecution is to prove all the ingredients of Section 300 I.P.C. except death. P.W.2 Doctor has stated that the injury No.1 on scalp is not sufficient in the ordinary course of nature to cause death. The size of injury No.1 having 1/4" depth on the forehead tells that the blow was not with severe force. Although inflicted in the vital part of the body. P.W.2 doctor has stated that on 4.2.2008 on police query he examined a bamboo stick and reported vide his report Ext.2 that the injuries were possible by that weapon. P.W.6 a Grama Rakhi and P.W.10 Investigating Officer have stated that the bamboo lathi was seized vide Ext.4 on 15.10.07, which is marked as M.O.I. P.W.6 is a Grama Rakhi. The defence contended that the seizure of M.O.I is doubtful as it is not possible

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that in a crowded place like Rampur market a bamboo piece the alleged weapon of offence was kept untouched from 9.30 p.m. of 14.10.07 to 15.10.07 11.45 till it was recovered and seized in presence of two Grama Rakhis when number of persons were available in the market. The contention has no substance, as the I.O. at para-5 of the cross-examination has stated that the other persons present at the time of seizure of lathi declined to stand as witness to the seizure. P.W.6 in cross-examination has stated that at the time of seizure the lathi was lying at the spot. The persons of the locality were aware about the incident and assault by means of that lathi. So, lying of the M.O.I at the spot till it was seized was not uncommon and it is not a ground to discard the seizure of the weapon which was produced before the doctor P.W.2.who on examination has opined that the weapon of offence is a bamboo stick of 37 inch length and 4 inch circumference with four knots which tallies with the description of lathi given in Ext.4. The weapon of offence M.O.I does not appear to be a dangerous or deadly weapon. The injured P.W.1 has stated that accused Guru all on a sudden brought a bamboo thenga used in the centering work of a house and dealt a blow on his head. He stated that the accused persons are his friends and jointly had taken a construction work on contract basis and the accused persons after getting payment had consumed liquor and accused Guru collected bamboo lathi from the construction side of Pradyumna Patra. All the witnesses have stated that the accused persons were not armed with

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any weapon at the time of altercation. The accused persons were not aware about the future intervention of the injured. Only when they were quarreling each other the intervention of the accused enraged them whereby accused Arjun dealt a slap and accused Guru dealt a thenga blow on his head. The eye-witnesses have stated that they did not interfere in the quarrel. P.W.1 in crossexamination has stated that the incident took place all on a sudden. The aforesaid facts unerringly proved that the accused persons had no intention of knowledge to commit murder of the injured. Further, Section 34 IPC which deals with the common intention is not at all proved and attracted. In the instant case, admittedly, when the two accused persons were quarreling each other due to interference of the injured accused Arjun being engaged gave a slap and accused Arjun gave a merha blow on his head. As such common intention of the accused persons as a result of pre-arranged plan and prior concert and meeting of mind are not proved and the accused persons acted individually at the spur of the moment as per their own volition and would be liable individually for their individual act. Slap on the left cheek near ear as proved by P.W.2 amounts to causing voluntary hurt as such coming U/s 323 I.P.C. and the assault by accused Guru Thakur on the head of P.W.1 is also punishable U/s 323 I.P.C. In view of the aforesaid reasonings I find that both the accused persons are individually liable and have committed offence under Section 323 I.P.C. and the

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allegation of attempt to murder as per U/s 307/34 I.P.C. is not proved against the accused persons beyond reasonable doubt. The prosecution totally failed to prove the charge U/s. 294/34 IPC. 19. In the result, I hold the accused persons individually guilty for the offence U/s 323 I.P.C. and Convict them thereunder. The charges U/s.294/307/323/34 IPC are not established.”

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7. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge (F.T.C.), Balangir at Patnagarh, the present appeal has been preferred by the appellants.

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8. Ms. Sunandini, learned Amicus Curiae appearing for the appellants, at the outset, submitted that she would confine her argument limited to the quantum of sentence instead of challenging the conviction recorded against the appellants. Therefore, I need not venture into the merits of the case by re-appreciating the entire evidence. Suffice it to say that initially the appellants were charged under Section 307 of I.P.C. and other offences, however, the learned trial Court found the appellants not guilty of the said charges, to which the State has not questioned. The

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appellants have assailed the conviction recorded against them of the offence under Section 323 of I.P.C. and on that count, the sentence has

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been awarded. Since the appellants have chosen not to question the conviction and rather confined her case to the quantum of sentence, I prefer to consider all the attending circumstances to modify the sentence.

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9. Ms. Sunandini, learned Amicus Curiae appearing for the appellants brought to the notice of this Court that the appellant No.1 was arrested on 24.04.2008 and released on bail on 26.04.2008 and the appellant No.2 was arrested on 24.04.2008 and released on bail on 02.05.2008. Therefore, Ms. Sunandini, submitted that the appellant No.1 has already undergone custody for about two days and the appellant No.2 has already undergone custody for about eight days from the total awarded sentence. She further submitted that the appellant No.1 was 30 years of age at the time of incident and the appellant No.2 was 33 years of age i.e. in the year 2009. At present, they are aged at about 50 years.

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Over the years, they have led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating them

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after such a long delay, it is argued, would serve little penological purpose and may in fact be counter-productive, casting a needless stigma not only upon them but also upon their family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, in the fitness of situation, the appellants may be extended the benefit of the Probation of Offenders Act read with Section 360 Cr. P.C.

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10. Taking into consideration the entire conspectus of the matter and the fact that the incident relates back to the year 2009, the age of the appellants and their societal position, I am of the considered view that the appellants are entitled to the benefit of the Probation of Offenders Act and Section 360 of Cr.P.C. Additionally, the case of the appellants are also covered by ratio of the judgment of this Court in the case of Pathani Parida & another vs . Abhaya Kumar Jagdevmohapatra¹ .

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1 2012 (Supp-II) OLR 469

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Similar stand was also taken in Sk.Wahed Ali vs. State of Orissa² , regarding an offence under section 323 of I.P.C, where this Court by holding the accused-appellant guilty under the aforementioned provision of law, extended the benefit of P.O. Act.

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11. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing the appellants to suffer imprisonment, this Court directs the appellants to be released under Section 4 of the Probation of Offenders Act for a period of three months on their executing bond of Rs.5,000/- (Rupees Five Thousand) within one month with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellants shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of three months.

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12. Accordingly, the CRLA is partly allowed.

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2 2025 ILROnline Orissa 254

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13. This Court acknowledges the effective and meaningful assistance rendered by Ms. Sthitipragyan Sunandini, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/-

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(Rupees seven thousand five hundred) to be paid as a token of appreciation.

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The High Court of Orissa, Cuttack. Dated the 27^th November, 2025/ Swarna

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Signature Not Verified

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Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 05-Dec-2025 19:36:53

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Arjun Ghiuela v. State

Case brief

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Arjun Ghiuela v. State

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