The court upheld the conviction under Section 326 IPC for grievous assault while allowing the appellants probation due to their reformed status and the prolonged passage of time since the offense.

JUDGMENT :

SIBO SANKAR MISHRA, J.

1. The present Criminal Appeal has been jointly preferred by two appellants assailing the judgment and order dated 06.11.1996 passed by the learned Additional Sessions Judge, Kendrapara in Sessions Trial Case No. 12/260 of 1995 (arising out of G.R. Case No. 433 of 1992), whereby they were convicted for the offence punishable under Section 326 /34 of the INDIAN PENAL CODE and sentenced them to undergo rigorous imprisonment for a period of one year each. For the sake of clarity, it is pertinent to note that one more accused, namely Sarbeswar, had also faced trial in the same case but was acquitted of all the charges, as the prosecution failed to establish his guilt beyond all reasonable doubts.

2. The prosecution case, in brief, is as follows:

The incident occurred on 18.05.1992 at about 7:30 A.M. on the road near Jayaguru Ashram. At that time, the injured, Basanta Kumar Sahu, was on his way to his shop riding a motorcycle. When he reached near the said Ashram, all the accused persons allegedly obstructed his way by standing in front of his motorcycle, compelling him to stop. Immediately thereafter, accused Maheswar caught hold of the motorcycle and dealt a blow with a sword, which struck the injured on the left side of his ear and neck, causing severe injuries. It is alleged that Maheswar had aimed the blow at the head, but it accidentally landed on the ear and neck. Subsequently, accused Maheswar is said to have snatched the sword from the possession of accused Dhaneswar and inflicted another blow on the left hand of the injured, resulting in the amputation of three fingers. As the injured fell from his motorcycle, accused Dhaneswar again assaulted him on the left knee with the same weapon. After committing the assault, all the accused persons allegedly fled from the scene, taking the weapon of offence with them.

The prosecution further alleged that the motive behind the incident was a property dispute between the parties, and that the injured and the accused persons were related to each other.

On the same day of the occurrence, a written report was lodged by the son of the injured before the Officer-in-Charge of Pattamundai Police Station.

3. On the basis of the aforementioned allegations, investigation was conducted and charge sheet was filed against the appellants and on their stance of complete denial and claim for trial, they were put to trial on being charged for the offences U/s.304 read with 34 of I.P.C.

4. In order to establish its case, the prosecution examined thirteen witnesses in total. P.W.10, Basanta Kumar Sahu, is the injured witness. P.W.1 was an eye-witness to the occurrence, while P.Ws.2, 4, and 11 were also cited as eye-witnesses who corroborated the incident. P.W.3, though declared hostile, stated that he had taken the injured Basanta to the hospital. P.W.5 likewise turned hostile and did not support the prosecution version. P.W.6 was a post-occurrence witness who deposed to have seen the injured lying in a wounded condition in front of Jayaguru Ashram shortly after the incident. P.Ws.7 and 8 also turned hostile and did not lend support to the prosecution case. P.W.9, the son of the injured and the informant of this case, was a post-occurrence witness. P.W.13 was the doctor who medically examined the injured and proved the medical report, while P.W.12 was the Investigating Officer who conducted the investigation of the case.

5. The learned Trial Court, upon a thorough and meticulous appreciation of the entire oral and documentary evidence adduced by the prosecution, arrived at the finding that the charges under Section 307 IPC could not be sustained ag