MADHUSUDAN SETHI v. STATE OF ORISSA

Court), Balasore in Criminal Appeal No.72 of 1998, affirming the order of conviction qua the Petitioners dated 02.11.1998 passed by the learned J.M.F.C., Balasore in G.R. Case No.840 of 1993/Trial No.301 of 1998 and imposing a sentence of rigorous imprisonment for six months under Section 324⁷/34²of IPC and undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2500/- each, and in default, to undergo rigorous imprisonment for a further period of six months under Sections 326¹/34²of IPC and he acquitted one of the accused Somnath Sethi of the charges as stated above, as the prosecution failed to prove its case against him.

2 . The prosecution case is that the present Petitioners, along with one Somnath Sethi, faced trial for the commission of offence under Sections

1 326. Voluntarily causing grievous hurt by dangerous weapons or means.—Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any posion or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with¹[imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

2 34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

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341³/324⁷/326¹read with Section 34²of the IPC on the allegations that on 01.08.1993 they threw acid on the injured P.Ws.4 to 6 and P.Ws.8 to 10, and it is apt to note that P.W.9 is also the informant.

3. To drive home the charge, the prosecution examined 12 witnesses. Evidence of P.W.3, the doctor, P.W.7, the eye specialist and P.W.12, the I.O are of significance. Several documents were exhibited by the prosecution and marked as Exts.1 to 10/1, and two M.Os. were also admitted on behalf of the prosecution.

Though no documentary evidence was adduced, two defence witnesses were examined on behalf of the accused-Petitioners.

4. On considering the evidence on record, the learned trial Court, while finding the Petitioners guilty of commission of offence under Sections 324⁷/34²of the IPC as well as Sections 326¹/34²of the IPC, acquitted the co-accused, Somnath Sethi.

5. Taking into account that Section 326¹of the IPC is a graver offence, and considering the nature of the offence and the manner in which it 3 341. Punishment for wrongful restraint.—Whoever wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.

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was committed, the learned Court declined to apply the Probation of Offenders Act, 1958⁴(hereinafter referred to as 'P.O. Act') and directed the accused persons to undergo R.I. for six months under Section 324⁷/34²of the IPC and R.I. for two years under Section 326¹/34²of the IPC, with a further direction to each of the accused-Petitioners to pay Rs. 2,500/-, and in default, to undergo further R.I. for a period of six months, and the amount so realized shall be paid in equal proportion to all the injured persons as compensation in terms ofSection 357⁵of the Cr.P.C.

4 The Probation of Offenders Act, 1958 (Act 20 of 1958).

5 35 7. Order to pay compensation.—(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied—

(a) in defraying the expenses properly incurred in the prosecution;

(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a civil court;

(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;

(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.

(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.

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Being assailed in appeal, the learned Appellate Court did not find any infirmity to interfere with and upheld the conviction as well as the sentence so imposed.

6. Learned counsel, Mr. Dash, appearing for the Petitioners, draws the attention of this Court to the statement of P.W.9, the informant, more particularly his cross-examination, wherein he candidly admits that because of the counter case, this case has been falsely foisted against the accused-Petitioners.

7. Learned Public Prosecutor, Mr. Panigrahi, on the other hand, referring to the evidence of the injured P.Ws.4 to 6 and P.Ws.8 to 10, coupled with the evidence of P.W.3, the doctor and P.W.7, the eye specialist, submits that the learned trial Court as well as the appellate Court, on cogent analysis of the evidence on record, have rightly disregarded the evidence of P.W.9, on which much reliance has been placed by the learned counsel for the Petitioners, and further, he places reliance on the judgment of the Apex Court in the case of Kaptan

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Singh v. State of M.P.⁶regarding the limited powers of revisions of this Court.

8 . Learned counsel for the Petitioners, placing reliance on the evidence of P.W.3, the doctor and P.W.7, the eye specialist submits that even if the evidence of the witnesses of the prosecution is accepted at its face value, the case comes under Section 324⁷of the IPC. It is further submitted that for this limited purpose, in the given facts of the case, prayer for alteration of conviction and sentence to one under Section 324⁷of the IPC can be considered by this Court in exercise of its revisional jurisdiction.

9 . So far as offences relating to throwing acid are concerned, it is apposite to note that in the year 2013, Sections 326-A⁸and 326-B⁹have been introduced.

6 Kaptan Singh v. State of M.P., (1997) 6 SCC 185 7 324. Voluntarily causing hurt by dangerous weapons or means.— Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

(Emphasized)

8 326-A. Voluntarily causing grievous hurt by use of acid, etc.—

Whoever causes permanent or partial damage or deformity to, or burns or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that

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The explanation-1 under Section 326-B¹ reads as under:

"S.326-B⁹ Voluntarily throwing or attempting to throw acid.-

xxx xxx xxx

Explanation-1. For the purposes of Section 326-A and this section, "acid"

includes any substance which has acidic or corrosive character or burning nature, that is capable of causing bodily injury leading to scars or disfigurement or temporary or permanent disability.

Explanation-2. xxx xxx xxx"

(Emphasized)

It is apt to note that Section 324⁷of IPC also refers to "Corrosive Substance".

person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

9 326-B. Voluntarily throwing or attempting to throw acid.—Whoever throws or attempts to throw acid on any person or attempts to administer acid to any person, or attempts to use any other means, with the intention of causing permanent or partial damage or deformity or burns or maiming or disfigurement or disability or grievous hurt to that person, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.

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10. Taking a cue from Explanation-1 above, wherein it is stated that acid includes any substance which has acidic or corrosive character, this Court is persuaded to hold that, considering the medical report, the alteration of conviction to one under Section 324⁷of the IPC would meet the ends of justice.

11. It is stated at the Bar that both the Petitioners are aged about 76 and 66 years. Hence, considering the same, directing them to undergo incarceration under Section 324⁷of the IPC, which provides for a maximum sentence of three years, would not serve any purpose, more so in light of the submission of the learned counsel for the Petitioners that over these years they have not indulged themselves in any other offence, which is fortified from the instruction as received by the learned Public Prosecutor.

12. Considering the same, this Court is

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six weeks hence, and on such deposit, the amount shall be released in terms of the order passed by the learned Trial Court, in the event of default thereof, both the Petitioners shall undergo S.I. for a period of three months.

13. Accordingly, the Criminal Revision, along with I.As stand disposed of.

14. The bail bond(s) stand cancelled and the sureties are discharged.

(V. NARASINGH)

Judge

Orissa High Court, Cuttack Dated the 31^st March, 2026/ Soumya

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