The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.505 of 2008 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Krushna Chandra Biswal and another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Pritam Kumar Mallick, Amicus Curiae For the Respondent : Mr. Raj Bhusan Dash, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 18.11.2025 :: Date of Judgment: 18.11. 2025 S.S. Mishra, J. The two convicts-appellants, namely, Krushna Chandra Biswal and Hunda Bhoi conjointly filed the present Criminal Appeal challenging the judgment and order dated 24.10.2008 passed by the learned Second Additional Sessions Judge, Cuttack in S.T. Case No.350 of 2001, whereby the learned trial Court convicted the appellants for the offence under Section 324/34 of I.P.C. and on that count, they are sentenced to undergo R.I. for three months subject to set off the period already undergone under Section 428 of Cr.P.C. 2. The present appeal has been pending since 2008. When the matter was called for hearings, consistently none appeared for the
Legal Reasoning
covered by the judgment of this Court in the case of Pathani Parida & another vrs. Abhaya Kumar Jagdevmohapatra reported in 2012 (Supp-II) OLR 469, Dhani @ Dhaneswar Sahu vrs. State of Orissa Page 13 of 15 reported in 2007 (Supp-II) OLR 250 and Sk. Wahed Ali vrs. State of Orissa reported in 2025 ILR OnLine Orissa 254. I5. Having regard to the judgment of the Hon’ble Supreme Court and the catena of decisions of this Court, the present Criminal Appeal, insofar as the conviction is concerned is turned down. But instead of sentencing the appellants to suffer imprisonment, this Court directs the appellants to be released under Section 4 of the Probation of Offenders Act for a period of three months on their executing bond of Rs.5,000/- (Rupees Five Thousand) each within one month with one surety each for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellants shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of three months. 16. Accordingly, the CRLA is partly allowed. 17. This Court acknowledges the effective and meaningful assistance rendered by Mr. Pritam Kumar Mallick, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an Page 14 of 15 honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 18th November, 2025/Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 27-Nov-2025 13:38:36 Page 15 of 15
Arguments
appellants. Therefore, this Court requested Mr. Pritam Kumar Mallick, learned counsel, who is present in Court to assist the Court as Amicus Curiae. He has readily accepted the same and after obtaining entire record, assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Mr. Mallick. 3. Heard Mr. Pritam Kumar Mallick, learned Amicus Curiae for the appellant and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State. 4. The prosecution case, in brief, is that on 27.05.1998 at about 5:30 A.M., in village Jasuapur, the accused persons allegedly arrived near the house of the informant (P.W.1) in an agitated state, armed with a tube-light bar and an iron rod, and began abusing him in obscene language while threatening to kill him. Observing the situation, the informant came out of his house and protested. At that Page 2 of 15 moment, accused-Krushna Chandra Biswal (appellant No.1), is stated to have assaulted the informant by striking him with the tube-light bar on the left side of his chest, causing a bleeding injury. When the informant’s mother, sister, and younger brother intervened, they were also allegedly assaulted by the accused persons. On the alarm raised by the family members, nearby villagers gathered at the spot, whereupon the accused persons fled. The incident was reported on the next day i.e. on 28.05.1998 at about 9:00 A.M., at Mahanga Police Station, leading to registration of P.S. Case No. 126/98. Investigation was initially entrusted to ASI, G.H. Jena and subsequently transferred to ASI, Pravat Kumar Mishra (P.W.6) under the direction of the Officer-in-Charge. During the investigation, P.W.6 examined the informant and other witnesses, issued a requisition to the Tahasildar for issuance of a caste certificate pertaining to the informant, obtained the said certificate, and, on completion of the investigation, submitted charge- sheet against the accused persons under Sections 341/323/324/307 read with Section 34 of the I.P.C. and Section 3 of the SC & ST (PoA) Act. Subsequently, charges were framed against the accused Page 3 of 15 under Sections 324/307 of the I.P.C. read with Section 3 of the SC & ST (PoA) Act. On the stance of complete denial and claim of trial, the appellants were put to trial. 5. The prosecution in order to bring home charges examined six witnesses. Out of whom, P.W.1 is the victim/informant whereas P.W.2 was the mother of P.W.1. P.W.3 was a villager and an independent witness to the occurrence and P.W.4 is the brother of P.W.1. P.W.5 was the doctor, who examined the injured/victim (P.W.1) on police requisition and P.W.6 was the ASI of the case, who had investigated the case and submitted the charge-sheet. 6. Initially the appellants stood charged for the alleged commission of offence under Sections 324/307 of I.P.C. read with Section 3(i)(x) of the SC & ST (PoA) Act. However, on the appreciation of the evidence on record and taking into account the fact that investigation was not carried out by the officer above the rank of the Deputy Superintendent of Police as per Rule 7 of the SC & ST (PoA) Rules, 1995, the learned trial Court acquitted the appellants of the charges under Section 3 of the SC & ST (PoA) Act inter alia recording as under:- Page 4 of 15 “5. At the outset, it is submitted by the learned counsel for the accused persons that the case was investigated by the ASI of Police though as per Rule 7 of SC/ST (PA) Rules, 1995 it should have been investigated by the Police Officer not below the rank of Deputy Superintendent of Police. According to him, the penal section of the Act cannot be attracted against the accused persons in view of the above legal lacuna. As per the the Act shall be rules, an offence under investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. So, investigation done by PW 6 is not inconsonance with the rules. As per law, the Rules made under a statute must be complied for all purposes as if they were in the Act and are to be of the same effect as if contains in the Act. But in the case in hand, is not the said mandatory provision complied with and as per the law decided by our Hon'ble Court in the case of Pratap Pradhan and another Vrs. State of Orissa 2005(30) OCR 416 the above penal section of the Act can not be utilized against the accused persons. So, there is no reason to go deep in the matter in relation to the above referred penal section of the Act. It can be safely said that the accused persons can not be held liable under that penal section of the act. But it will have no effect so far the other sections of the I.P.C. are concerned. The law decided in the above referred case squarely applies to the case in hand. It is now to be decided as to whether the successfully prosecution established the ingredients of other sections of the I.P.C. or not.” witnesses have This part of the finding being not subjected to challenge, the same deserves to be affirmed. Page 5 of 15 7. By relying upon the prosecution evidence, the learned trial Court also arrived at a conclusion that this is not a case under Section 307 of I.P.C. as the prosecution failed to bring home the charge of intention of the appellants to commit murder. The reasoning of the learned trial Court is reflecting in paragraph-8 of the judgment, which reads as under:- “8. According to the prosecution from the evidence on record the accused persons can be made punishable u/s 324/307 IPC. To attract the provision of Section 307 IPC, two ingredients are required to be proved, 1stly, an evil intention or knowledge and 2ndly, the act done with such intention or knowledge. There are judicial pronouncements to the effect that a person does an offence punishable u/s 307 IPC when he has intention to commit murder in pursuance to that intention, does an act towards its commission irrespective of the fact whether that act was penultimate act or not,. It is also held by different Hon'ble Courts that the nature of injury may afford scope intention. in determining Intention can also be gathered from the nature of weapons and receipt of injuries. So the entire facts and circumstances of the case are to be looked into to arrive at a conclusion whether the to accused persons had requisite commit murder or not.” intention the Eventually, the learned trial Court in paragraph-9 of the judgment has recorded that the appellants are found guilty of the Page 6 of 15 offence under Section 324/34 of I.P.C. For ready reference, paragraph-9 of the judgment is reproduced hereunder:- “9. In this case, the accused persons have reached the spot being armed with iron rod and bar of a tube light. According to the informant, accused Hunda dealt a blow by means of an iron road on his right thigh and the other accused gave a poking blow with the broken tube light. The injuries received by him (PW 1) are simple in nature and the incise wound is muscle deep. The accused persons have not dealt the blows on the vital organs of the informant and it was also not given with grave force. The accused persons gave one blow each though there was scope for them to give successive blows. Further more, they left the spot when the nearby persons reached there. So it is very difficult to say that dominant intention of the accused persons is to commit murder of the informant. So the ingredients of section 307 IPC are lacking in this case. Where the intention or knowledge referred to in section 307 IPC is not proved, the offence falls u/s 324 I.P.C.. As such, there are cogent and reliable materials against the accused persons u/s 324/34 I.P.C. Though charge is framed u/s 324 I.P.C., there is no difficulty to add section 34 IPC as the common from intention is well forthcoming and during course trial, the accused persons were alive to it. To sum up, the Accused persons are found guilty u/s 324/34 IPC and they are not found guilty u/s 307 IPC r/w section 3 of the Act.” the evidence on record Page 7 of 15 8. Being aggrieved by the judgment of conviction and order of sentence passed by the learned 2nd Additional Sessions Judge, Cuttack, the present appeal has been preferred by the appellants. 9. Mr. Mallick, learned Amicus Curiae appearing for the appellants and Mr. Dash, learned Additional Standing Counsel for the State have taken me to the evidence of all the witnesses in extenso. In this case, the defence has declined to cross-examine all the prosecution witnesses except cross-examining P.W.6, who is the I.O. of this case. 10. P.W.1 is the victim/informant in the present case. He, in his testimony, has stated that the incident had taken place four years back i.e. on 27.05.1998 at about 5.30 A.M., when he was returning after being eased out, the appellant No.2 dealt a blow by means of an iron rod, assaulting him on his right thigh, whereas the appellant No.1 poked with a great force, a broken bar light below the left shoulder in the left side of his chest near the armpit. He bled profusely and became unconscious and he was taken to Mahanga P.H.C. for treatment at about 7.00 A.M. The police came to the hospital and Page 8 of 15 recorded his statement. The defence declined to cross-examine the said witness. The testimony of P.W.1 is directly found corroborated with the testimony of P.W.4, who is the brother of P.W.1. P.W.4 narrated the entire incident as has been told to him by P.W.1. He went to the hospital to see his elder brother and the incident was reported to the police by him. Even this witness was not cross-examined by the defence. P.W.3, who is an independent witness, has stated that when he heard the commotion, he came out of the house and saw that the accused persons were running away. He further stated that he found P.W.1 was bleeding profusely from his left side of the chest and some broken glass pieces were lying on the road. He also stated that the people gathered there and told that the accused persons had fled away after assaulting P.W.1. This witness was also not cross-examined by defence despite opportunity. The evidence of P.Ws.1, 3 and 4 stood directly corroborated with the evidence of P.W.5, who is the doctor by whom P.W.1 was examined. The doctor (P.W.5) in his testimony has stated as under:- Page 9 of 15 “1) Incised wound 5 cm x muscle deep on left axila anterior aspect just at the fold of left axila 2) Lenior incised wound 2cm length on the right fore-arm (flexor aspect). Ext.1 is my report and Ext.1/1 is my signature. Injury no.1 might have been caused by a sharp cutting object and injury no.2 might have also been caused due to a sharp cutting weapon. Injury no.1 is possible by striking a broken bar light.” The medical examination report has been exhibited as Ext.1. Perusal of the Ext.1 indicates that two injuries found on the person of P.W.1 are simple in nature. The doctor was also not cross-examined as defence declined to cross-examine. P.W.6 is the Investigating Officer in this case. He in his testimony has stated as under:- “On 29.1.99 I was attached to Mahanga PS as ASI. On that day as per direction of the OIC I took up investigation of this case. I took charge of the case from ASI Gaurahari Jena who was the previous IO in this case. During course of investigation I have reexamined the complainant and then issued requisition to the Tahasildar for issuing of a certificate regarding the caste of the victim. I have also exd. the witnesses and then the the caste certificate obtained Tahasildar and then I submitted C.S. in this case. Ext.2 is that caste certificate. from In the cross-examination, the said witness (P.W.6) has stated as under:- Page 10 of 15 “I have not ascertained the caste of the accused Hunda Bhoi. The said Hunda Bhoi belongs to the SC. I have received Ext.2 which is in shape of letter but I have not received any certificate from the Tahasildar. I have not relied the Tahasildar as witness in the C.S. I have not visited the spot.” The defence appears to have reluctantly cross-examined the said witness. 11. Conjoint reading of all the evidence together, leads to the inevitable conclusion that the appellant No.2 used an iron rod and the appellant No.1 used a tube-light to assault P.W.1. That part of the evidence stood corroborated with the evidence of P.Ws.3, 4 and 5. Therefore, there is no reason as to why the conclusion drawn by the learned Trial Court, as reflected in paragraph 9 of the judgment reproduced hereinabove, should not be affirmed. There is no doubt that the injuries are simple in nature. However, since the appellants voluntarily caused hurt by using dangerous weapons like an iron rod and a broken tube-light, they cannot escape the liability of the offence under Section 324/34 of the I.P.C. Accordingly, the judgment and order dated 24.10.2008 passed by the learned Second Additional Page 11 of 15 Sessions Judge, Cuttack, in S.T. Case No. 350 of 2001 against the appellants stands upheld. 12. At this stage, Mr. Mallick, learned Amicus Curiae appearing for the appellants submitted that the incident relates back to the year 2008. At that point in time, the appellant No.1 was thirty-seven years of age and the appellant No.2 was twenty-five years of age. At present, the appellant No.1 is fifty-fours of age and the appellant No.1 is forty-two years of age. Over the years, they have led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating them after such a long delay, it is argued, would serve little penological purpose and may in fact be counter- productive, casting a needless stigma not only upon them but also upon their family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, in the fitness of situation, the appellants may be extended the benefit of the Probation of Offenders Act read with Section 360 Cr. P.C. 13. In Rattan Lal v. State of Punjab, reported in AIR 1965 SC 444, the Hon’ble Supreme Court held that the object of the Probation Page 12 of 15 of Offenders Act is to reform the individual offender and to prevent the conversion of a youthful or first-time offender into a habitual criminal by subjecting him to prison life. It was held thus: - death offence “The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an or punishable with imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act.” 14. Apart from the above judgment, this case is also squarely