IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.743 of 2024 (In the matter of application under Section 397 and

401 of Code of Criminal Procedure, 1973).

Jyoti Prakash Mishra … Petitioner -versus-

State of Odisha … Opposite Party For Petitioner : Mr. J.K.Panda, Advocate For Opposite Party : Mr.A.K.Apat, Addl. PP CORAM:

JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:24.01.2025(ORAL)

G. Satapathy, J.

1. This revision is directed against the impugned judgment dated 31.07.2024 passed by learned Addl. Sessions Judge, Sonepur in Criminal Appeal No. 48/96 of 2007-17 altering the conviction of the petitioner to one U/S. 324 of IPC from offence U/S. 307 of the IPC and modifying his sentence to pay a fine of Rs.25,000/- within two months from the date of judgment/order and in default of payment of such fine, to undergo Rigorous Imprisonment for a period of two years.

2. This revision is heard and disposed of at the stage of admission on consent of the learned counsel for the parties. Heard Mr.Jugal Kishore Panda, learned counsel for the petitioner and Mr.A.K.Apat, learned Addl. Public Prosecutor and perused the record.

3. In the course of hearing, without disputing the conviction of the petitioner for commission of offence U/S. 324 of the IPC, Mr.Panda, learned counsel for the petitioner challenges the sentence of the petitioner by submitting interalia that the fine amount may be reduced to Rs.20,000/- and the petitioner would pay the same within one month of passing this order. On the other hand, Mr.Apat, learned Asst. Public Prosecutor, however does not raise any objection for modification of the sentence.

4. After having considered the rival submissions upon perusal of record, it appears that the petitioner was earlier convicted by the learned Asst. Sessions Judge, Sonepur in Sessions Case No. 38/20 of 2006 for commission of offence U/S. 307 of IPC and he was accordingly sentenced to undergo Rigorous Imprisonment for five years and to pay a fine of Rs.6,000/-, in default whereof to undergo Rigorous Imprisonment for a further period of six months. The petitioner, however, carried an appeal to the Court of Sessions in Criminal Appeal No. 48 of 2007 which was transferred to the file of learned Addl. Sessions Judge, Sonepur who after hearing the parties passed the impugned judgment by altering the conviction of the appellant-petitioner to one U/S. 324 of IPC and accordingly modified his sentence to pay fine of Rs.25,000/-, in default whereof to undergo imprisonment for two years. Admittedly, there is no dispute/challenge to the conviction of the petitioner for offence U/S. 324 of the IPC, but only the sentence of the petitioner is under challenge in this revision, which is prayed to be modified. On perusal of record, this Court does not find anything to evidence any previous conviction of the petitioner for any offence, but the occurrence was taken place way back on 14.12.2005, and in the meanwhile, around 19 years have elapsed, however, the petitioner had suffered incarceration for a period of 24 days during pendency of trial/appeal. Further, not only the petitioner, but also his elder brother had faced the trial, however, the learned trial Court finding no evidence against the elder brother had acquitted him in Sessions Case No. 38/20 of 2006.

5. In adverting to the prayer for modification of sentence of the petitioner, the background of fact is also relevant for deciding quantum of punishment and in this case, according to the prosecution story, the dispute was between the acquitted accused and the injured, but the present petitioner being the younger brother of the acquitted co-accused had suddenly intervened and assaulted the injured in a spur of moment with pre- meditation and thereby, prior mensria cannot be attributed to the petitioner. Further, the occurrence might have taken place on a spur of moment without pre-meditation and in a fight between two persons involving the elder brother of the petitioner. In this situation, this Cour