TIKESHWAR BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant herein calls in question the judgment of conviction and order of sentence passed against him in S.T. No. 130/27 of 1991 on the file of the Addl. Sessions Judge, Bargarh. The learned Addl Sessions Judge, Bargarh vide the impugned judgment and order while acquitting the appellant of the charge under Section 307 of the Indian Penal Code (for short "the I.P.C."), held the appellant guilty of the charge under Section 326 of PC and sentenced him to undergo rigorous imprisonment for three years and pay a fine of Rs. 5000/-, in default, to undergo further rigorous imprisonment for one year with direction that the entire fine amount shall be paid to the injured-Kalia Behera (P.W. 1) towards compensation.

(2.) Prosecution case placed before the Trial Court is that on 05.03.1991, the informant-Kalia Behera lodged an F.I.R. before Bargarh Police Station stating that there was some quarrel in between his brother-Kalia Behera and the appellant-Tikeswar Behera. On the date of occurrence, while he (informant) was in his shop, hearing the shouts of his brother, he went and found that the appellant-Tikeswar was holding a 'Katari' and co-accused-Jadaba Behera who was holding a wooden batton and gave blows on his shoulder and head. The present appellant assaulted his brother on his head and other parts of body by means of 'Katari' causing bleeding injury. Basing on such report, the case was registered and after completion of investigation, charge-sheet was submitted against the appellant and one Jadaba Behera and they were charged under Section 307/34 of PC During trial, the prosecution examined nine witnesses whereas none was examined on behalf of the appellant and the learned Trial Court after analysing the evidence on record acquitted both the accused persons from the offence under Section 307 of IPC, but found the present appellant guilty under Section 326 of PC and inflicted the aforesaid sentence which is under challenge in this appeal.

(3.) During course of hearing of this criminal appeal, the learned counsel for the appellant contended that the statement of the witnesses is discrepant to each others with regard to the place of occurrence and the manner of assault. The eye-witnesses, namely, Maina Behera, Bibhisan Pradhan and Dagar Maji have not been examined, for which adverse inference should have been drawn against the prosecution. Moreover, the appellant in view of his tender age should pave been given the benefit of the Probation of Offenders Act.