Dhruba Charan Jena Vs State of Odisha

the impugned judgment dated 08.01.2025 passed by the learned District & Sessions Judge, Jajpur in Criminal Appeal No.28 of 2024 altering the conviction of the revision-Petitioners for offence one U/S. 323/34 of the IPC from offences U/Ss.323/308/34 of IPC and modifying their sentence directing each of

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them to undergo rigorous imprisonment (RI) for four months and to pay a fine of Rs.500/- in default whereof, to undergo RI for fifteen days.

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2. The facts in precise are that the revisionPetitioners were charged for committing offence U/Ss. 341/323/294/308/506/34 of IPC on the allegations that the revision-Petitioners in furtherance of their common intention had assaulted the injured PW3 Suvendu Mohanty and PW4 Sujit Mohanty respectively on their head and belly, as a result both of them sustained injuries. Accordingly, the revisionPetitioners faced the trial before the Court of learned Chief Judicial Magistrate-cum-Asst. Sessions Judge, Jajpur in C.T. (Sessions) Case No.43 of 2016 which was ultimately disposed of by the learned Chief Judicial Magistrate-cum-Asst. Sessions Judge, Jajpur vide judgment dated 26.11.2024 passed in the aforesaid case convicting the Petitioners for offence punishable U/Ss. 323/308/34 of IPC and directing

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each of them to undergo RI for one year for offence

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U/Ss. 323/34 of IPC; and to undergo RI for seven years for offence U/Ss. 308/34 of IPC. Being aggrieved, the revision-Petitioners preferred an appeal before the learned District & Sessions Judge, Jajpur in Criminal Appeal No.28 of 2024 and accordingly, their conviction was altered for offence one U/S. 323/34 of the IPC from offences U/Ss.323/308/34 of IPC and their sentence was accordingly reduced to RI for four months with payment of pay a fine of Rs.500/- in default whereof, to undergo RI for further fifteen days. Being aggrieved, the revision-Petitioners have carried this revision to this Court.

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3. In the course of hearing, Mr. Rajendra Narayan Rout, learned counsel for the Petitioners without disputing and challenging the conviction of the revision-Petitioners for offence U/Ss.323/34 of IPC prays to modify/reduce the sentence of the revisional Petitioners to the period already undergone

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on the ground that the Petitioner Nos.1 & 2 are not CRLREV No.40 of 2025 Page 3 of 7

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only elderly persons, but also are aged about 75 and 68 years and they have already remained in custody for more than three months and Petitioner No.3 had not actively participated in the crime and he has already been detained in custody for near about two months and no adverse report have been submitted against them.

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3.1. On the other hand, Mr. R.B Mishra, learned Additional Public Prosecutor does not dispute with regard to prayer for modification or reduction of sentence, but he, however, submits that since the sentence as imposed by the learned Sessions Judge is commensurate to the crime, the revision deserves to be dismissed. Accordingly, Mr.Mishra prays to dismiss the revision.

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4. After having considered the rival submissions upon going through the materials placed on record, since there is no challenge with regard to conviction of the Petitioners for offence U/Ss. 323/34

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of IPC, this Court does not want to enter into the

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realm of the merits of the case, but confines itself to the limited issue of the sentence of the revisionPetitioners inasmuch as the Petitioners never challenge their conviction for offence U/S. 323/34 of IPC. In the aforesaid background, when the sentence of the revision-Petitioners is considered, one thing comes in the mind of the Court that the Petitioner No. 1 is aged about 75 years and Petitioner No.2 is 68 years and no fruitful purpose would be served by keeping them in custody, more particularly when they have already undergone substantial period of sentence as awarded by the learned appellate Court. Further, it is not in dispute that the revisionPetitioners are first time offenders, but the learned Appellate Court has passed sentence by duly considering the PO report. It is also not in dispute that the Petitioner No.3 although present at the spot had not actively participated in the crime and the offence was committed without any premeditation. True it is that undue sympathy on convict is uncalled

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for and at the same time, this Court is reminded of the quote of Adam Smith an Scottish Philospher “Mercy to the guilty is cruelty to the innocent”, but when awarding punishment to the convict/guilty, the Court has to see that the punishment must be commensurate to the act of the offender, however, at the same time, the purpose/objective of the punishment is to be kept in mind. It is not in dispute that the objectives of punishment is to finish the crime, but not the criminals and, therefore, in this case having due regard to the age of the revisionPetitioners and their conduct, so also the period undergone by each of them, out of the sentence awarded, this Court considers that interest of justice would be best served, if the sentence of the Petitioners is reduced to the period already undergone by each of the revision-Petitioners. Accordingly, it is ordered.

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5. In the result, the criminal revision stands

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dismissed on contest, but in the circumstance, there is

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no order as to costs. Consequently, the conviction of the revision-Petitioners is maintained, but the sentence is modified to the extent indicated above.

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Since the Petitioners are in jail custody, warrant of release along with copy of this judgment be immediately sent to the Officer-in-Charge of the concerned jail through e-mail or any other faster mode of communication for release of the petitioners from custody.

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(G. Satapathy) Judge

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Orissa High Court, Cuttack, Dated the 29^th January, 2025/Priyajit

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Signature Not Verified

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Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORI SSA Date: 30-Jan-2025 18:09:34

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Dhruba Charan Jena v. State of Odisha

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Dhruba Charan Jena v. State of Odisha

Case brief

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