The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 128 of 2007 (In the matter of an application under Section 374(2) of Criminal Procedure Code) Tilok Khoda and another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Md. Faradish , Advocate For the Respondent : Mr. Raj Bhusan Dash, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 11.09.2025 :: Date of Judgment: 25.09.2025 S.S. Mishra, J. The present Criminal Appeal arises out of the judgment and order dated 27.02.2007 passed by the learned Sessions Judge -cum- Special Judge, Koraput at Jeypore, in Criminal Trial Case No.426 of 2003, whereby the learned trial Court convicted the accused- appellants under Sections 323/325 read with 34 of the Indian Penal Code, 1860 (hereinafter referred to as “the Code” for brevity), sentenced them to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for a further period of one month for the offence under Section 325 of the Code and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment of one month for the offence under Section 323 I.P.C. 2.
Legal Reasoning
Heard Md. Faradish, learned counsel for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State. 3. Prosecution case in brief is that on 30.07.2001, Sudeb Pangi and Jagabandhu Pangi had gone to Raising weekly market to purchase goats. While they were bargaining with the dealers, both the accused persons arrived at the spot armed with lathi and thenga. They abused the informant in filthy language, referring to their caste, and further assaulted Jagabandhu with kicks, as well as blows by thenga and a cycle chain, compelling him to flee. When Sudeb Pangi intervened, the accused persons also assaulted him with the thenga on different parts of his body, causing him to sustain a fracture injury on his hand. Page 2 of 12 Thereafter, Sudeb Pangi submitted a written report at Padwa P.S., which was received by the police on 31.07.2001 through the Gram Rakhi. On the basis of the report, Padwa P.S. Case No. 48/01 was registered by P.K. Patnaik (P.W.9), the then Officer-in-Charge, and investigation was taken up by S.I. G.C. Naik (P.W.10). During investigation, the injured persons were sent for medical examination with requisition (Ext.9), the spot was visited, and witnesses were examined. Subsequently, investigation was taken over by Prasanta Kumar Patnaik (P.W.9), the then O.I.C. of Padwa P.S., who later handed over the charge of investigation to J. Rama Chandra Rao (P.W.12), the then D.P. of Machkund. Upon completion of further investigation, charge-sheet was submitted against the accused persons for the aforesaid offences. 4. The case having been committed to the Sessions Court, the accused persons stand charged under Sections 341, 294, 323, and 325 read with Section 34 of the IPC, as well as Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Page 3 of 12 5. In view of the denial of the charge by the accused persons, they were put to trial. The prosecution, apart from exhibiting certain documents, has examined as many as twelve witnesses in this case. Out of the witnesses examined, P.W.3 Jagabandhu Pangi and P.W.4 were the injured and P.W.4 was the informant of the case. P.W.1 Ganesh Khillo and P.W.2 Sonu Bhillo were cited as eyewitnesses to the occurrence, but they did not support the prosecution case. P.W.5 Gopal Machha and P.W.6 Pratap Pradhan are witnesses to the seizure. P.W.7 Ramnath Panda, an independent witness, has proved the caste certificate. The remaining witnesses were official witnesses, among whom P.W.8 Paramananda Dalpati, a police constable then attached to Padwa Police Station, was cited as a witness to the seizure. P.W.10 Satya Prasanna Nayak was the doctor, P.W.9 Prasanta Kumar Patnaik, P.W.11 Gabakshya Chandra Nayak and P.W.12 J. Ramachandra Rao, were the investigating officers. On the other hand, the defence has examined one Rama Chandra Dora to substantiate their plea of defence. 6. The learned trial Court, by relying upon the evidences of P.Ws. 3 and 4, who were the injured witnesses opined, corroboration as a rule of Page 4 of 12 prudence, but not absolute requirement. Therefore, the evidences of P.Ws.3 and 4, those who have been injured sans corroboration is enough for the purpose of finding the appellants guilty of the offence. Accordingly, the learned trial Court recorded the following findings: “Even though the accused persons abused P.Ws.3 taking the name of his caste in filthy language but the society to which the accused persons as well as the injured belong and the part of this country where the occurrence had taken place and the surroundings it can never be said that the same is obscene words and the same was uttered with intention to cause annoyance to others. So also there is nothing in the record suggesting the fact that the accused persons have restrained the movement of P.Ws.3 or 4 while they were proceeding in any direction I which they had right to proceed. In case of every assault there is restriction of movement but the same if so facto does not attract the ingredient of Section 341 without anything on record suggesting the fact that while they were proceeding in any direction their movement was restricted and then he was assaulted. However, in this case there is categorically evidence that the accused persons caused hurt to P.W.3 and 4. No doubt P.W.3 had not sustained any injuries but Sudeb Pangi sustained fracture injury on his right hand as deposed by him and also the doctor. So also it is seen from the evidence that the accused persons came together and they assaulted both the injured and as such one of whom sustained simple and grievous hurt and the other also sustained simple hurt. In such facts and situation there is no manner of doubt that both the accused persons had common intention to intentionally cause simple hurt to Jagabandhu as well as grievous hurt to Sudeb Pangi as such for the aforesaid attracts the ingredients of the charge under Section 323 and 325 read with Section 34 of the I.P.C.” 7. In so far as the charge under Section 3(1)(x) of the SC & ST (PoA) Act is concerned, the learned trial Court has rightly found that the Page 5 of 12 statutory requirement of compliance of Rule-7 of the SC & ST (PoA) Act, 1995 has not been complied with. None of the Investigating Officers, namely, P.Ws.9, 11 and 12 are the Police Officers of the rank of DSP. Since they have investigated and laid down the charge sheet in the present case, contrary to the mandate of Rule-7 of the SC & ST (PoA) Act, 1995, the learned trial Court has recorded an acquittal of the charges. In absence of any challenge to the said finding by the State Government, the same has attained finality. Even otherwise the findings being well within the four corners of law, I do not want to interfere with the same. 8. In so far as the offence under Section 325/34 of the IPC is concerned, Md. Faradish, learned counsel for the appellants has vehemently pointed out that conjoint reading of the evidence of all the witnesses will make it clear that the evidences are not consistent, as such, not reliable being not trustworthy. He has extensively read out the evidences of P.Ws. 1, 2, 3 and 4. He has pointed out that P.W.3 in paragraph-2 has stated as under: “……. Accused Tilota Khora assaulted me on my head with a lathi causing bleeding injury. He also abused me in obscene Page 6 of 12 words as “MAGIA GHASIA DOMBO MAGIAMANE TUME ASIKIRI RATE BADEI DEIKIRI HAIRANA KORUCHO”. So out of fear I ran away. These accused persons also assaulted Sudebo Pangi by means of lathi on his head.” 9. Learned counsel for the appellants submitted that P.W.3 was not an eye witness to the occurrence when the assault was being made to Sudebo Pangi (P.W.4) as per the deposition because when P.W.4 was being assaulted at that point of time, P.W.3 ran away. 10. In the F.I.R. so also in the statement of P.W.4, it could be found that P.W.3 had run away out of fear. Hence, he has not seen the occurrence. P.W.3, though claimed to be an injured, but he was not medically examined by the doctor nor he was sent for medical examination by the police. 11. P.W.4 deposed that he was going with P.W.3. The accused persons assaulted Jagannath Pangi by means of a thenga and chain and when he protested, they assaulted him by means of iron chain and lathi to his head to which he raised his hand, the lathi assault fall on his hand. He sustained injury on his left hand and right hand palm as well as the other parts of his body due to the assault. His hand was also fractured. Page 7 of 12 Incidentally, neither the lathi nor the chain alleged to have been used in the assault of P.W.4 by the accused, have been recovered by the police. The said witness also stated that someone else also scribed the F.I.R. and he has only affixed his L.T.I. although he knows reading and writing. He also stated that in the medical examination report and the requisition also he has put his L.T.I. Despite the fact that P.W.4 stated that on his dictation, the F.I.R. was scribed, but surprisingly, in the F.I.R., the names of the accused persons are not found mentioned. In the light of the aforementioned nature of the deposition by the P.W.4, learned counsel for the appellants submitted that as per the statement of the injured (P.W.4) that he sustained injury on his left hand but from the medical report and the statement of the medical officer/P.W.10, who examined the injured that there was no injury on left hand and as per the medical report he has no cut injuries (as P.W.4 claimed in his deposition). 12. P.W.4 stated at para-1 that the F.I.R. was scribed by one scribe and he does not name who has scribed, but in the cross-examination, he deposed that the F.I.R. was scribed by the Police Inspector as per his statement. P.W.4 stated that the Police babu sent him for medical Page 8 of 12 examination to the D.H.H., Koraput, but from the deposition of the 1st I.O./P.W.11 shows at para-3 (cross examination) that by the time he gave requisition, the injured was in the hospital. From the deposition of the P.W.11/the A.S.I. (1st I.O.), it reveals that the F.I.R. was registered on 31.07.2001 and on the direction of the OIC, he took up the investigation. 13. P.W.5 was the seizure witness, who did not support the prosecution case and P.Ws.6, 7 and 8 were the formal witnesses. On the basis of the prosecution evidence as adduced during the trial, learned counsel for the appellants has pointed out the glaring contradiction appears in the deposition. 14. In this case, P.W.10, the doctor examined P.W.4, one of the injured. However, the other injured P.W.3 was not examined by the doctor. P.W.10 has found two injuries on the body of P.W.4 as under: “1. Swelling of 3 cm x 2 x 1 cm over right side mid forearm on the ulnar border. The injury was red in colour. 2. Lacerated injury of size 5cm x .5 x. 5 cm over right hand. Injury 1 is simple in nature and injury no.2 is grievous in nature could have caused by hard and blunt force.” 15. The doctor (P.W.10) further deposed in the cross-examination stating therein that the injury no.2 is possible by fall on a hard and blunt Page 9 of 12 surface. He has also relied on the X-Ray report, i.e., M.O.I to injury no.2. The doctor has placed on record the medical requisition as Ext.9. Reading of Ext.9 reveals that the injury no.2 which is described to be the injury of grievous in nature, opined to have been caused within seven days duration. It is also found from the medical report that P.W.4 was examined on 30.07.2001 at 9.35 P.M., but the Police record shows that the F.I.R. was registered on 31.07.2001 on the next day. By pointing out the aforementioned contradictions, learned counsel for the appellants attempted to create a doubt regarding the very nature of the injury sustained by P.W.4. By analyzing the afore-referred evidences, the following conclusions are inevitable. 16. The F.I.R. was lodged on 31.07.2001 at 9 A.M. But the medical report of P.W.4 indicates that he was examined on 30.07.2001 at 9.55 P.M. That reveals, the medical examination was conducted before the case was finally registered which raises a significant doubt. 17. P.W.4 initially although stated that someone has scribed the F.I.R., but in the cross-examination, he says that one Police Inspector had Page 10 of 12 written the F.I.R. on his dictation. Apart from the said contradiction, the name of the accused persons are not found mentioned in the F.I.R. P.W.4 has also stated that he has received injury on the left hand, but in the F.I.R. as well as in the medical report, he has given his L.T.I. instead of signature although he knows reading and writing. Curiously, P.W.3 though received injuries and the prosecution examined the injured witness, but he was not medically examined. P.Ws.1 and 2 claimed to be the eye witnesses. However, they have completely turned hostile to the prosecution. P.W.3 and P.W.4 have deposed that when P.W.4 was assaulted, at that time, P.W.3 was not present. Therefore, the entire prosecution story evolving from the narration of the witnesses is riddled with contradictions and it is also apparently clear that in so far as the injury no.2 is concerned, it is natural and its age is creating a serious doubt. The evidence of P.Ws. 9 and 10 are leading to the only conclusion that the injury no.2 alleged to have been sustained by P.W.4 creates a doubt as to whether the same was caused in the alleged incident or not. Therefore, by conjoint reading of all the evidences and taking into account the nature of the injury sustained by P.W.4, this Court is of the Page 11 of 12 view that the conviction recorded by the learned trial Court for the offence under Section 325 of the IPC shall not sustain in the scrutiny of law, if the evidences are appropriately appreciated. 18. Therefore, by extending the benefit of doubt to the accused- appellants, I acquit the appellants of the charge under Section 325 of the IPC. However, in so far as the charge under Section 323 of the IPC is concerned, I am not inclined to interfere with the same. 19. Hence, the conviction for the offence under Section 323/34 of the IPC is affirmed and the sentence imposed on that count vide judgment and order dated 27.02.2007 passed by the learned Sessions Judge-cum- Special Judge, Koraput at Jeypore, in Criminal Trial Case No.426 of 2003 is also modified to the extent that each of the appellants shall undergo R.I. for six months and to pay a fine of Rs.1,000/- (Rupees One thousand) each, in default, to undergo S.I. for one month more. The period already undergone shall be set off under Section 428 of Cr. P.C. 20. With the aforementioned modification, the Criminal Appeal stands partly allowed. The High Court of Orissa, Cuttack Dated the 25th Day of September, 2025/Subhasis Mohanty (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 27-Sep-2025 09:57:06 Page 12 of 12