Conviction under Sections 323/34 IPC upheld, but imprisonment replaced with probation under Section 4.

On 19 August 2021, an altercation allegedly occurred between the appellants, Sulochana Naik and Binod Naik, and informant Kamini Naik over payment of an electricity bill.

The prosecution alleged that the appellants dragged Kamini from the house and that Binod assaulted her husband, Pramod Naik, on the head near his right ear with an axe, causing a bleeding injury.

Khuntuni P.S. Case No. 98 of 2021 was registered for offences under Sections 341, 294, 323, 506 and 307 read with Section 34 of the IPC.

After investigation, charges were framed under the same provisions.

The trial court acquitted the appellants of Sections 341, 294, 307 and 506 read with Section 34 IPC, but convicted them under Section 323 read with Section 34 IPC.

Appellant No. 1 was sentenced to four months’ simple imprisonment and a fine of Rs.1,000, while Appellant No. 2 was sentenced to ten months’ simple imprisonment and a fine of Rs.1,000.

In appeal, the appellants challenged the conviction and sentence; however, their counsel confined submissions to the quantum of sentence and sought the benefit of probation.

1. Whether the conviction of the appellants under Section 323 read with Section 34 IPC was supported by the evidence on record.

2. Whether, considering the nature of the offence, the passage of more than five years, the custody undergone, and the appellants’ absence of criminal antecedents, they should be released on probation under Section 4 of the Probation of Offenders Act, 1958.

The Court applied Section 323 read with Section 34 IPC, concerning voluntarily causing hurt with common intention.

It considered Section 4 of the Probation of Offenders Act, 1958, which permits release on probation where an offender is found guilty of an offence not punishable with death or imprisonment for life, subject to the statutory conditions and the court’s assessment of the circumstances.

Section 361 CrPC requires the court to record special reasons where probation could have been granted but is not granted.

Relying on Chellammal and Another v. State represented by the Inspector of Police, 2025 INSC 540, the Court held that although probation is not an accused’s absolute right, the sentencing court has a duty to consider its applicability and must give reasons for refusing it.

The Court also relied on Pathani Parida v. Abhaya Kumar Jagdevmohapatra, 2012 (Supp-II) OLR 469, and Dhani @ Dhaneswar Sahu v. State of Orissa, 2007 (Supp.II) OLR 250, concerning the grant of probation in appropriate circumstances.

The Court found no infirmity in the conviction.

The evidence of the injured witness, the informant and independent witnesses was consistent and was corroborated by the medical evidence, which established a simple bruise near the injured person’s right ear.

The Court therefore upheld the finding that the appellants had caused hurt in furtherance of their common intention under Section 323 read with Section 34 IPC.

On sentence, the Court noted that the occurrence was from 2021, more than five years had elapsed, the appellants had undergone some custody, had no criminal antecedents or other pending criminal cases, and had remained integrated in society while leading settled lives.

Since the offence was punishable with a sentence other than death or life imprisonment, Section 4 of the Probation of Offenders Act was applicable for consideration.

In light of the minor nature of the proved injury and the surrounding circumstances, the Court held that continued incarceration would not serve a meaningful penological purpose and extended the benefit of probation.

The conviction under Section 323 read with Section 34 IPC was affirmed, while the custodial sentences were substituted with release under Section 4 of the Probation of Offenders Act for three months.

Each appellant was directed to execute a bond of Rs.5,000 with one surety for the like amount, to appear and receive sentence if called upon during the probation period, maintain peace and good behaviour, and remain under the supervision of the concerned Probation Officer.