The court modified the appellants' sentence to probation, asserting leniency for first offenders involved in a trivial matter, while affirming their conviction under the IPC for assault.

ORDER :

1. Heard learned counsel for the Parties.

2. This Appeal is directed against the judgment and order dated 15.05.1998 passed by the learned District Judge-Cum-Special Judge, Ganjam-Gajapati-Berhampur in G.R. Case No.235 of 1995 wherein the two Appellants along with Nartu Gangulu faced trial having charged U/s.354/294/323/325/34 Indian Penal Code (herein after in short called the IPC ) R/w. Section. 3(1) (x) of SC & ST (P.A) Act but found guilty in the offence only in the offence under section 323/325/34 against the two Appellants before this Court who having convicted sentenced to undergo S.I for three months U/s. 323 of and R.I. for one year U/s. 325 of and further directed that the sentences are to run concurrently. The said two persons namely Nartu Kameshu and Nartu Kasi are, therefore, before this Court in Appeal.

3. The prosecution case as unfurled before the trial court in brief is that on the day of Dipavali in the evening of the year 1995 when some of the family members of the Informant (P.W.2) were sitting on the outer verandah of their house, the Appellants exploded one cracker (Chakra Bano). The said 'Bano' fell on the person of Kokuli Sethi, the daughter of the Informant. When the she (Kokuli) protested such action of Kameswar (the Appellant Kamesu), the two others abused her in obscene languages and came to the house of the Informant with Lathi. It is further alleged that the Appellant Kasi dealt a lathi blow on the right hand of Kokuli whereupon she sustained a fracture injury. Appellant Kameswar dealt lathi blow on the right hand of Bulu Sethi causing fracture on his dorsum aspect. He also dealt Lathi blow on the head of Shanti Sethi causing bleeding injury. The Informant took the injured persons to the local Hospital for treatment and lodged report with the Nuagaon Police Station. As the report revealed a cognizable offence, the Police treated the report as FIR, registered the same vide Nuagaon P.S. Case No. 119 of 1995 and proceeded with the investigation.

4. In course of the investigation the I.O. (P.W.7) re-examined the Informant and the witnesses, arrested the accused persons and forwarded them to the court, examined other witnesses, received the injury report and X-ray report and he made over the charge of investigation to S.I. Kapileswar Behera on his transfer, who submitted the charge-sheet.

5. The plea of the defense is one of complete denial and false implication. The prosecution, to bring home the charge examined seven witnesses. While P.W.1, P.W.3 and P.W.6 are the injured, P.W.2 is the father of the injured being the Informant. P.W.4 is an eye witness to the occurrence, P.W.5 is the doctor who examined the injured persons on police requisition and P.W.7 is the I.O.

6. The prosecution besides the oral evidence proved documentary evidence vide Exhibits.1 to 6. The learned trial court while believing the version of the injured witnesses as well as the Informant coupled with the opinion of the doctor found the prosecution case to be cogent in respect to the charge U/s. 323/325/34 of IPC held the offence U/s.354/294 and Under Section 3 (1) (x) of SC & ST (P.A) Act not proved.

7. The learned counsel for the Appellants did not argue much on the merit of the case and simply submitted that the offences have not been made out as held by the trial court and the Appellants ought to have been acquitted, submitted that the Appellants be considered by extending the reformative provision under the Probation of Offenders Act. According to the learned counsel Appellants have no criminal antecedents to their credit and are first offenders. He also submitted that the incident admittedly to be arising out of of a tri