The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 120 of 1997 (In the matter of an application under Section 374 of Criminal Procedure Code) Bhima Swain and another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Sougat Dash, Amicus Curiae For the Respondent : Mr. Raj Bhusan Dash, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 25.09.2025 : Date of Judgment: 09.12.2025 S.S. Mishra, J. The appellants in the present appeal have assailed the judgment and order dated 02.05.1997 passed by the learned District and Sessions Judge, Ganjam-Gajapati, Berhampur in Sessions Case No. 354 of 1996, whereby the accused appellant, namely, Bhagaban Swain was convicted U/s.325 of the Indian Penal Code and was sentenced to undergo R.I. for a period of 2 (two) years and pay a fine of Rs.1,000/- I.D. to undergo R.I. for 6 (six) months and the accused appellant, namely, Bhima Swain was convicted U/s.323 of the Indian Penal Code and was sentenced to undergo R.I. for a period of 6 (six) months. 2. This appeal is pending since 1997. When the matter was taken up for hearing, consistently in many dates of hearing, nobody appeared for
Legal Reasoning
it is well settled principle of law that the incriminating materials not put to the accused, cannot be used against the accused. Hence, he submitted that those part of the incriminating materials, which are not put to the accused in the statement recorded under Section 313 Cr.P.C., should be ignored while appreciating the evidence. Page 7 of 15 9. The Respondent–State through Mr. R.B. Dash, learned Addl. Standing Counsel submitted that the present appeal is devoid of merit, as the prosecution has successfully proved the guilt of the appellants through cogent, consistent and reliable evidence. It is submitted that the appellants were charged under Sections 302, 307 and 34 of the Indian Penal Code for having committed the homicidal death of Keshab Swain and causing grievous injuries to his son, Lochan Swain, in an incident that occurred on 10.05.1994 at about 6:00 p.m. near “Bada Bandha” situated in village Khajapalli. After a full and fair trial in Sessions Case No. 354 of 1996, the learned District & Sessions Judge, Ganjam–Gajapati, Berhampur, appreciating the entire evidence on record, found that the prosecution had clearly established the participation of the appellants in the occurrence. Accordingly, Bhagaban Swain was convicted under Section 325 of the Indian Penal Code and sentenced to undergo two years’ rigorous imprisonment with a fine of ₹1,000/-, in default to suffer six months’ further imprisonment, it being noted that he had already remained in custody for a period of eight months and four days. Similarly, Bhima Swain was rightly convicted under Section 323 of the Indian Penal Code and sentenced to six months’ rigorous imprisonment, and had been released upon completion of the said sentence on 03.05.1997. Page 8 of 15 10. It is submitted that the medical evidence fully supports the prosecution version. The deceased, Keshab Swain, father of the informant, had sustained multiple injuries on his head, and the post- mortem report of P.W.8 clearly reflects a lacerated wound on the occipital region measuring 4 cm × 1 cm × 0.5 cm, which the doctor opined to be sufficient in the ordinary course of nature to cause death. The injured witness, Lochan Swain (P.W.3), had also sustained bleeding injuries on the vital part of the body caused by a thenga (stick), and the examining doctor (P.W.6) stated that the severity and location of the injury necessitated his referral to M.K.C.G. Medical College, Berhampur. Both the father and son were initially taken to the Polsara P.H.C., where Keshab was declared dead. 11. The ocular testimony of the eyewitnesses is fully consistent and inspires confidence. The injured witness, Lochan Swain (P.W.3), categorically stated that Bhagaban initially slapped and assaulted him with a stick and later returned with Bhima and Bahadur, all armed with thengas, and that Bhima joined the assault on his father after Bhagaban and Bahadur had already attacked him. Gantei Dakua (P.W.5), whose Asha Badi was forcibly snatched by Bhagaban, corroborated the manner Page 9 of 15 of assault and also identified the seized weapon as M.O.IV. Another eyewitness, Uchhab Bisoi (P.W.10), fully supported the prosecution case, stating that he had seen Bhagaban slapped Lochan and thereafter return with Bhima and Bahadur, and further clarified that Bhima struck fatal blows on Keshab after the initial attack by Bahadur. Likewise, Jaya Swain (P.W.11) corroborated the presence and participation of all three accused in the assault which led to the death of Keshab. 12. It is also submitted that, the investigation conducted by P.W.17, the then O.I.C. of Kabisuryanagar Police Station, was prompt and proper. He reached Polsara P.H.C. upon receiving information, recorded the F.I.R. based on the statement of the witnesses, examined the injured, conducted the inquest, and seized one bamboo lathi produced by P.W.5, bloodstained and sample earth, saliva-stained scrapings, and three bamboo lathis recovered from the house of the accused. The seized articles, along with the wearing apparels, were forwarded for chemical examination. The subsequent investigation was duly completed by S.I. Trilochan Swain, who submitted the charge-sheet against the accused persons. Page 10 of 15 In view of the consistent ocular evidence, the corroborative medical testimony, and the lawful and scientific investigation conducted in the matter, the Respondent–State respectfully submitted that the learned Trial Court has rightly appreciated the evidence on record and has correctly recorded the conviction of the appellants under the appropriate provisions of the Indian Penal Code. The appeal filed by the appellants is frivolous, lacking in substance, and has been preferred without proper application of mind. It is, therefore, submitted that the same deserves to be dismissed in limine. 13. The contention raised by both the parties are largely dealt with by the learned trial court and summed up its finding recording the conviction as stated above. Relevant would be to reproduce the findings recorded in the judgment for convenience of ready reference:- “13. The evidence on record discloses that accused Bhagaban dealt one thenga blow. I have also discussed above regarding the nature of the injury which was received by Lochan. Considering the nature of the weapon used by accused Bhagaban and other aspects like the nature of the injury received by Lochan Swain and more so when he dealt a single blow with it, an offence u/s.307 I.P.C. is not made out against him. 14. The evidence on record discloses that when Kesab came running to save. Lochan, accused Bahadur Swain dealt a thenga blow on his head, as a result of which he fell down. The evidence of Lochan Swain shows that thereafter Page 11 of 15 conducted of P.W.8, who all the three accused persons assaulted Kesab by dealing blows by thengas on different parts of his body. Since, accused Bahadur is not facing trial, I do not like to discuss as to whether the death of Kesab was caused due to the alleged assault by accused Bahadur Swain. It is needless to mention here that there is no evidence to show that accused Bhagaban Swain and Bhima Swain assaulted on some specific part on the person of Kesab. On the contrary, the F.I.R. discloses that accused Bhagaban Swain has not assaulted deceased Kesab. Therefore, the evidence of P.W. 3 and P.W.4 that all the three accused persons assaulted Kesab by means of thengas on different parts of his person after he fell down on the ground is difficult to accept. The evidence postmortem examination over the dead body of deceased Kesab shows that external injury No.3 was sufficient in the ordinary course of nature to cause the death of the deceased. He has admitted in cross-examination that external injury no.3 though does not at all appear to be fatal, the possibility of the death of the deceased due to such injury cannot be ruled out. When accused Bahadur Swain dealt lathi blows on the head of deceased Kesab, the present accused persons do not share the intention of accused Bahadur Swain. In other words, the alleged assault by accused Bahadur Swain on the hand of deceased Kesab Swain can be considered to have been made by Bahadur Swain in his individual capacity. It goes without saying that common intention pre-supposes prior court. In the present case, there is absolutely no evidence on record that all the accused persons has pre-planed to cause the death of deceased Kesab Swain. Therefore, accused Bhagaban Swain and Bhima Swain cannot be tagged with the intention of accused Bahadur Swain when he gave thenga blows on the head of deceased Kesab Swain. Therefore, the argument advanced on behalf of the defence that the present accused persons did not share the intention of accused Bahadur Swain in committing the murder of deceased Kesab Swain bears ample force. 15. It may be stated here that the present accused persons have been charged for the offence u/ss.302/34 I.P.C. for committing murder of Kesab Swain by intentionally Page 12 of 15 causing his death in furtherance of their common intention. I have already discussed above that there was no pre-plan by the accused persons to cause the death of Kesab Swain. In the above premises, a case of common intention is not made out against the present accused persons. It is needless to repeat again that the FIR story does not show that accused Bhagaban Swain assaulted Kesab Swain when he fell down being assaulted by Bahadur Swain. Therefore, the evidence of P.Ws.3 and 4 that Bhagaban assaulted Kesab Swain after he fell down on the ground is an afterthought and subsequent development and as such the same cannot be accepted. Similarly, there is no clear evidence on record to show that accused Bhima Swain assaulted on any vital part of deceased Kesab Swain. Therefore an offence u/s 302 I.P.C. is not made out against accused Bhagaban Swain and Bhima Swain. At best, accused Bhima Swain can be made liable for an offence u/s. 323 I.P.C.” 14. I have taken into consideration the evidence of all the witnesses very carefully in the light of the arguments advanced by the parties. The evidence of P.W.3, the informant, P.Ws.4, 5, 10 and 11, the eye witnesses to the occurrence not only mutually corroborates but also stood in consonance with the evidence of P.W.6, the doctor, who examined the injured Lochan Swain, P.W.7, the doctor, who examined the injured, P.W.8, the doctor, who conducted the post mortem. In the present case, seizure of the weapon of offence is also proved on record. Although, initially the appellants were charged for offence under Sections 302/34 IPC along with the charges under Sections 307/34 IPC, but the learned trial court aptly analysed the entire evidence on record and arrived at the Page 13 of 15 aforementioned findings. I have no reason to disagree with the finding recorded by the learned trial court. Therefore, it is imperative that the conviction recorded by the learned trial court against the appellants for offence under Sections 325 and 323 IPC is affirmed. 15. Coming to the quantum of sentence, it is brought to the notice of the Court that appellant no.1 has already undergone the sentence period awarded to him and he has been released post completion of the sentence. Therefore, no order is required to be passed in so far as appellant no.1 is concerned. In so far as the appellant no.2 is concerned, he has been awarded a sentence of R.I. for two years and to pay a fine of Rs.1,000/-, in default, to undergo R.I. for six months for offence under Section 325 IPC. 16. The Senior Superintendent, Circle Jail, Berhampur by producing the report dated 24.09.2025, has brought to the notice of this Court that appellant no.2 in the present case has also undergone incarceration for a period of eight months and four days. However, at present he is in judicial custody in connection with another case registered against him in the year 2022. Be that as it may, since the incident relates back to the year 1994 and at that point of time appellant no.2 was 25 years of age and at present Page 14 of 15 he must have 56 years of age. The present appeal is pending since 1997. Therefore, the submission made by Mr. Dash, learned Amicus Curiae to take a lenient view and modified the sentence awarded to appellant no.2 deserves attention. The pendency of the prosecution for such a long time itself become an ordeal for the appellant no.2, as he has already undergone more than eight months imprisonment. Therefore, suffice it to reduce the sentence awarded by the learned trial court to one year R.I. However, the fine amount of Rs.1,000/- is increased to Rs.5,000/- (Five thousand), in default of making the fine amount, the appellant no.2 shall undergo R.I. for another one month. 17. This Court records the appreciation for the effective and meaningful assistance rendered by Mr. Sougat Dash, learned Amicus Curiae. He is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as token of appreciation. 18. With the aforesaid modification, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge Signature Not Verified The High Court of Orissa, Cuttack Dated the 09th of December, 2025/Ashok Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 12-Dec-2025 16:18:03 Page 15 of 15
Arguments
the appellants. Therefore, on 05.01.2024, Mr. Sougat Dash, who was present in Court, was entrusted to conduct this case, as Amicus Curiae. 3. Heard Mr. Sougat Dash, learned Amicus Curiae for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State. 4. The prosecution case may be briefly stated as follows. In village Khajapalli, there exists a tank known as “Bada Bandha”. On 10.05.1994 at about 6:00 P.M., one Kesab Swain, along with Bhagaban Swain, Kamaraju Bisoi, Lochan Swain (son of Kesab), and others, were bathing in the said tank. During this time, some water splashed by Lochan accidentally fell on accused Bhagaban Swain, who took strong exception to it, leading to an exchange of heated words and a brief scuffle. The situation was, however, pacified due to the intervention of Kesab Swain and Kamaraju Bisoi. Page 2 of 15 Shortly thereafter, one Gantei Dakua arrived at the tank to bathe. At that moment, accused Bhagaban Swain allegedly snatched Gantei’s Asha Badi (thenga) and struck a blow on the head of Lochan Swain. Accused Bahadur Swain is stated to have assaulted Kesab Swain with three blows of a thenga on his head. When Kesab fell to the ground, accused Bhima Swain allegedly joined the assault and dealt further blows to Kesab and Lochan. After the assault, accused Bhagaban, Bhima, and Bahadur Swain left the spot carrying their respective thengas. The injured Kesab Swain and Lochan Swain were immediately carried home by Kamaraju Bisoi, Jaya Swain, and Indra Bisoi, and thereafter shifted to Polsara P.H.C. for treatment. Unfortunately, Kesab was declared dead by the attending doctor. Upon receiving information regarding the admission of injured persons at Polsara P.H.C., the O.I.C., Kabisuryanagar Police Station (P.W.17), arrived at the hospital. At about 10:30 P.M., Kamaraju Bisoi orally reported the incident to him, which was reduced into writing and treated as the F.I.R. The same was forwarded to the Police Station for formal registration of the case. On that very night, the Investigating Officer examined the informant and other witnesses at the P.H.C. Page 3 of 15 On 11.05.1994, the Investigating Officer visited the place of occurrence, examined additional witnesses, and conducted inquest over the dead body of Kesab Swain at about 8:30 A.M. in presence of witnesses. The inquest report was marked as Ext.14. He seized one bamboo lathi (asha badi thenga, M.O.IV) produced by Gantei Dakua under seizure list Ext.20. Sample earth and blood-stained earth were seized from the spot under Ext.15. He further seized bamboo lathis thenga (M.Os. V, VI, VII) from the houses of accused Bahadur, Bhagaban, and Bhima Swain respectively, under seizure lists Exts.17 to 19. The dead body of Kesab Swain was sent for post-mortem examination to the Medical Officer, Purusottampur Government Hospital, along with the dead body challan and inquest papers. On 12.05.1994, the I.O. issued a requisition (Ext.3/2) to the Medical Officer of Kabisuryanagar P.H.C. for examination of injured Gundichi Barada. The wearing apparels of the deceased (M.Os. I to III) were seized from the constable who escorted the body, under seizure list Ext.3. On 17.06.1994, the post-mortem report was received from the Medical Officer, Purusottampur P.H.C. On 28.06.1994, two photographs Page 4 of 15 of the scene of occurrence, along with their negatives, were seized from the Scientific Officer. On 08.12.1994 at about 11:30 A.M., the bed-head ticket of injured Lochan Swain was seized from Polsara P.H.C., under Ext.11, produced by the Head Assistant K.P. Pati. The I.O. prepared the spot map (Ext.24) and, upon his transfer, handed over charge of the investigation to S.I. Trilochan Swain (P.W.15), who, after completing the investigation, submitted the charge-sheet against the accused persons. The accused are, therefore, facing trial for offences under Sections 302/307/34 of the I.P.C. 5. The plea of the accused persons is one of complete denial. Their defence is that the villagers had decided to loot their houses, and in the course of such events, some persons had allegedly outraged the modesty of the wife of accused Bahadur Swain (D.W.1), hence the scuffle took place. 6. To substantiate the charges, the prosecution examined seventeen witnesses. P.W.3 (Lochan Swain) is the informant. P.W.6 (Dr. Natabar Senapati) examined the injuries of Lochan Swain on police requisition, and P.W.7 (Dr. Jagadish Panda) examined injured Gundichi Barada. P.W.8 (Dr. Asutosh Mohapatra), Assistant Surgeon, Purusottampur Page 5 of 15 P.H.C., conducted the post-mortem examination of the deceased on 11.05.1994. P.W.14 (Banabasi Naik), S.I. of Police, was deputed to obtain the injury report of Lochan Swain. P.W.1 (B.C. Barik), P.W.2 (Kishore Chandra Adhikari), P.W.9 (Madhusudan Rout), and P.W.13 (Rajkishore Bisoi) were the seizure witnesses. P.Ws.3, 4 (Bhanu Dakua), 5 (Gantei Dakua), 10 (Uchhab Bisoi), and 11 (Jaya Swain) are examined as eye-witnesses to the occurrence. 7. The learned trial court on analyzing the evidence on record, has recorded its finding in so far as the offence for which the accused persons have been convicted to the following effect:- “On the facts and circumstances disclosed from the evidence on record and the discussion made above, I find that the prosecution has filed to bring home the charge u/ss 302/307/34 I.F.C. against the accused persons. On consideration of the evidence on record, I find that an offence u/s 325 I.P.C. has been established against accused Bhagaban Swain and u/s 323 1.B.C. against accused Bhima Swain. I therefore, held the accused Bhagaban Swain guilty for the offence u/s 325 I.P.C. and accused Bhima Swain for the offence u/s 323 1.P.C. and convict them thereunder.” 8. Learned Amicus Curiae for the appellants submitted that in the present case the story narrated by the witnesses in the FIR and the evidence adduced by the prosecution during the trial is largely contradictory and clearly gives an idea that the appellants were falsely Page 6 of 15 implicated as there are substantial addition in the evidence. He further submitted that the injury as ascribed on the injured Lochan is not substantiated by medical opinion. Since the nature of alleged injury on the injured is not opined by the doctor nor the X-ray report has been exhibited, the conviction under Section 325 IPC is misconceived and liable to be set aside. Mr. Dash, further submitted that the guilt recorded under Section 325 IPC against the appellants have been negated in the absence of medical opinion. Prosecution version seriously contradicts with the evidence during the trial and allegation made in the FIR, the learned trial court has blissfully ignored the material inconsistency in the prosecution evidence. The learned trial court has also not taken care to put all the incriminating materials against the appellants came on record through the prosecution evidence in the statement of the appellants accused recorded under Section 313 Cr.P.C. He, therefore, submitted that