Full Judgment
R.K. Dash, J.
1. The accused, petitioner herein, was prosecuted and tried under Section 307, IPC. The learned Assistant Sessions Judge, however, found him guilty under Section 324, IPC and in view of the gravity of the offence, declined to extend the benefit of the Probation of Offenders Act and consequently sentenced him to undergo rigorous imprisonment for one year. On appeal, the learned Additional Sessions Judge on a scrutiny of the evidence dismissed the appeal. Feeling aggrieved by the Judgment of both the Courts below, the accused filed the present revision.
2. Facts of the prosecution case are well set out in the Judgment of the trial Court and therefore, it is not necessary to recapitulate the same. Accused's mother as well as Lalita Bewa, mother of Benudhar Mohapatra PW 3, are real sisters. Lalita being issueless, it is alleged, adopted PW 3 and since his childhood PW 3 has been residing in her house. For a trivial matter the accused gave a Farsa blow to PW 3 on 10-3-1990 at about 2-40 p.m. It is in the evidence of PW 3 that on the date of incident the minor daughter of the accused gave some blows with a wooden plank to the scooter of PW 3 which fact was brought to the notice of her family members. Accused's father then asked PW 3 that he should not keep the scooter henceforth in front of his house. To this when he questioned as to why he had been suggesting so, the accused came and gave a blow with a Farsa resulting in injury on his right ear and right side neck.
3. The incident occurred inside the premises of PW 3 and as deposed to by PW 5, no outsider was then present. PWs 2 and 4 are post-occurrence witnesses. The learned trial Court on an assessment of the evidence believed the prosecution version that accused inflicted a Farsa blow causing injury on the person of PW 3 and having held thus he convicted and sentence the accused as hereinbefore stated. The appellate Court also scrutinised the evidence of prosecution and concurred with the findings recorded by the trial Court. Since the conclusion of both the Courts below are based on sound reasonings and on proper assessment of the evidence, sitting in revision I am not inclined to interfere with the same.
4. Coming to the question of sentence, counsel for the accused contends that since parties are related, to bring about suit between them provisions of the Probation of Offenders Act should be extended to the accused. It would be seen from the evidence of PW 2 that accused as well as PW 3 are inimically disposed towards each other since long over certain property and it is because of such strained relationship that accused beat PW 3 with a Farsa aiming at vital part of his body as a result, major portion of his right ear lobule was cut and detached (see evidence of PW 1). Keeping all these aspects in view, in my opinion it will be a misplaced sympathy if provisions of the Probation of Offenders Act are extended to the accused. However, since the parties are related by blood, ends of justice would be squarely met if fine is imposed. In view of my discussions made above, while upholding the conviction of the accused recorded under Section 394, IPC, the sentence of one year rigorous imprisonment is set aside and in lieu thereof he is sentenced to pay a fine of Rs. 2,000/- rupees two thousand), in default, it to undergo rigorous imprisonment for two months. Fine amount, if realised, be given to Benudhar Mohapatra, PW 3.
5. With the modification of sentence as aforesaid, the revision is dismissed.