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THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.551 of 2006 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Esaan Kumar Pattanaik @ ……. Kisan Pattanaik and another Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Satya Narayan Mishra(4), Amicus Curiae For the Respondent : Mr. Ashok Kumar Apat, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 16.09.2025 :: Date of Judgment: 25.09.2025 S.S. Mishra, J. The present criminal appeal is directed against the judgment and order dated 25.11.2006 passed by the learned Additional Sessions Judge, Boudh, in S.T. No. 15/2005, arising out of G.R. Case No. 235/2003, whereby the appellants were found guilty of the offence U/ss. 341/324/34 I.P.C. Both the appellants were sentenced to undergo Rigorous Imprisonment for two years and to pay fine of Rs.5000/- each, in default to undergo sentence of R.I. for six months more for the offence U/s. 324 I.P.C. They were further sentenced to undergo Simple Imprisonment for one month and to pay a fine of Rs.500/- each in default S.I. for seven days more for the offence U/s. 341 I.P.C. 2. The present appeal has been pending since 2006. When the matter was called for hearing consistently, none appeared for the
Legal Reasoning
appellants. Therefore, on 24.07.2025, Mr. Satya Narayan Mishra(4), learned Amicus Curiae has been appointed as Amicus Curiae to assist the Court. Therefore, this Court requested Mr. Satya Narayan Mishra(4), 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. Mishra. Page 2 of 11 3. Heard Mr. Satya Narayan Mishra(4), learned Amicus Curiae for the appellants and Mr. Ashok Kumar Apat, learned AGA for the State. 4. The prosecution case in brief is that on 18.09.2003 the informant (P.W.4) lodged an FIR at Boudh Police Station alleging that while he was returning from Boudh to his village after purchasing sarees, the accused persons (named in the FIR as Arun and others including the present Essan) chased him on a motorcycle, intercepted him near the Mahanadi bridge and assaulted him. It is alleged that Arun dealt axe (tangia) blows causing severe bleeding injuries to his head and a blow on his left palm while others gave fist and lathi blows. On the basis of the FIR, police registered the case, investigated and submitted charge-sheet. The medical report (Ext.9) notes lacerated injuries on the right parietal region (two places) and a lacerated injury on the left palm; the doctor recorded these injuries to be simple in nature and opined they might have been caused by a hard and blunt instrument. 5. At the trial, seven witnesses were examined by the prosecution. P.W.4 (the injured/informant) gave the account of Page 3 of 11 being chased and assaulted. Some witnesses turned hostile; others supported material aspects of P.W.4’s account. P.W.6, the Investigating Officer, recorded seizure of blood-stained clothes, prepared spot map (Ext.6), recorded statements under Section 161 Cr.P.C. and alleged that the accused Arun made a disclosure under Section 27 of the Evidence Act leading to recovery of the weapon from a dilapidated well; the weapon was seized as per the police panchnama. 6. The learned trial Court, relying primarily on the testimony of the injured informant (P.W.4), corroborated to some extent by the medical report (Ext.9) and the seizure effected by the Investigating Officer (P.W.6), concluded that the accused persons had wrongfully restrained and assaulted the informant with the intention of causing his death. The trial Court found the accused persons guilty under Sections 341, 324, and 34 of the Indian Penal Code (IPC). The court acquitted them of charges under Sections 294 and 506 IPC due to insufficient evidence. Considering the nature of the offense and the lack of prior criminal antecedents, the court sentenced each convict to rigorous imprisonment for two years and imposed a fine Page 4 of 11 of Rs.5,000/- with additional imprisonment in case of default. The relevant portion of the aforesaid judgment is extracted herein below for ready reference:- “11. In this case, the accused persons stood the trial for the offence u/ss. 341/294/506/307/34 I.P.C. There is sufficient materials on record that the accused persons have intercepted in furtherance of common intention and with such common intention accused Arun Patnaik dealt blow with axe on the head and hand of the informant. There is no evidence on record that the present accused Arun fled away due to intervention of others, he simply left the informant after three axe blows. The injuries are simple in nature. So in the aforesaid background, it would not be sufficient to presume that the accused Arun intended to cause death or which could have caused death in the normal course or the same would have been sufficient to cause death. In the absence of aforesaid ingredients at best the said offence attract the u/s. 324 I.P.C. and not Sec. 307 I.P.C. There is no evidence on record except the F.I.R. that the accused persons abused them in obscene words or any of them threatened to kill the informant. In absence of such evidence, it cannot be said that prosecution has established the offence u/ss. 506 I.P.C. In view of my above discussion I hold that prosecution has succeeded to establish the case in part. Both the accused persons are therefore, found not guilty of the offence u/ss. 294/506 I.P.C. and are acquitted thereof. However both are found guilty of the offences u/ss. 341/324/34 I.P.C. and are convicted thereunder.” 7. I have carefully considered the submissions advanced by the learned Amicus Curiae for the appellants and the learned counsel Page 5 of 11 for the State and have gone through the records of the case, including the depositions of the witnesses, the medical evidence and the documents produced. 8. A close scrutiny of the evidence shows significant infirmities in the prosecution case which required to be taken into account: P.W.4, the injured and principal eyewitness, though steadfast on certain basic features of the occurrence such as place (near Mahanadi bridge/near Gas Depot) and the fact of having sustained blows on the head and on the left palm, has given statements which are materially inconsistent. For instance, the FIR (Ext.4) records that the injured had prior acquaintance and business relations with the accused persons, whereas in paragraph 3 of his deposition in court he states that he did not know the appellants, and such contradiction on the question of prior acquaintance and identity is not a trivial discrepancy but one that goes to the root of the prosecution case as regards identification and complicity. This infirmity is accentuated by the fact that the only other eyewitness who was with P.W.4 on the motor cycle, namely P.W.1 Pradeep Kumar Barik, did not support the prosecution in material respects Page 6 of 11 and turned hostile, thereby depriving the prosecution of independent ocular corroboration of the identity and participation of all those charged, and where the identification of some accused is not satisfactorily proved, the accused must benefit from that doubt. 9. The medical evidence, which is independent and ordinarily lends persuasive weight to an assault case, does not enable the prosecution to bridge the gap to sustain the weight of the case under Section 307 IPC or even under Section 324 IPC as the learned trial Court attempted to do in part. The medical report records three lacerated injuries described as simple in nature and opines that they might have been caused by a hard and blunt weapon, but there is no medical finding of grievous hurt as defined in Section 320 IPC or of injuries which in the ordinary course were such as likely to cause death, and crucially the alleged material weapon of offence which was later said to have been recovered on the disclosure of accused Arun was not produced before the doctor at the time of examination so that there is no expert linkage between the recovered implement and the injuries sustained by the injured. In the absence of such linkage, the mere recovery of a thing at a subsequent point in time, Page 7 of 11 cannot alone dispel reasonable doubts on the mens rea required for attempt to murder or on the dangerousness of the instrument so as to attract Section 324 I.P.C. 10. The matter is further complicated by the fact that P.W.3, who could have been an independent witness to the recovery, turned hostile, thus weakening the independent corroboration of the recovery narrative furnished by the Investigating Officer (P.W.6). 11. It is necessary to advert also to the procedural chronology because it bears upon the reliability of statements and discoveries alleged to have been made in custody. Though the FIR is dated 18.09.2003 and the charge-sheet and the evidence of P.W.6 record arrest on 19.09.2003, the record indicates that the accused persons were produced before the Magistrate only after a period of fifteen to twenty days from the date of lodging the FIR and there is no satisfactory explanation in the police papers or in the trial record for this unexplained interval between the date of alleged arrest and the date of first court production. Such an unexplained delay is a serious procedural irregularity which casts a shadow over any statement said to have been made in the intervening custody and Page 8 of 11 reduces the confidence with which this Court can act upon alleged disclosures said to have led to recovery. 12. Weighing the aforesaid considerations together, the contradictions in the injured’s account on identity and prior acquaintance, the hostility of the pillion-rider witness and the absence of independent ocular corroboration for some of the accused, the medical evidence which shows only simple lacerations and does not connect the recovered implement to those injuries, and the unexplained delay in production despite a recorded arrest date of 19.09.2003, this Court is compelled to hold that the prosecution has failed to prove beyond reasonable doubt the complicity of the appellant Esaan @ Kishan Kumar Patnaik in the assault upon P.W.4, and on that score the conviction of Esaan cannot be sustained. The benefit of reasonable doubt must, therefore, be given to Esaan, who is accordingly acquitted of all charges and directed to be set at liberty forthwith. 13. As regards the appellant Arun Kumar Pattanaik, on the other hand, the totality of evidence, the injured’s account, though with some contradictions, the medical report describing lacerations, the Page 9 of 11 seizure of blood-stained clothes and the I.O.’s evidence connecting Arun to the scene and to the subsequent disclosure leading to recovery suffices to establish that Arun was the person who inflicted the blows upon the injured and thereby voluntarily caused hurt, but the evidence does not establish either the intention or the knowledge necessary to constitute an attempt to murder under Section 307 IPC nor does it establish with sufficient particularity that the hurt was grievous or caused by a dangerous weapon in the sense required by Section 324 IPC. For these reasons, this Court is of the view that the conviction under the higher offences must be set aside but that the facts are adequate to sustain a conviction for voluntarily causing hurt punishable under Section 323 IPC. 14. In view of the foregoing, the appropriate course is to modify the conviction of Arun from the offences under which he was originally convicted by the trial Court to an offence under Section 323 IPC and to pass such sentence as is proportionate to that lesser offence while giving credit for the period of detention already undergone. The record indicates that Arun has undergone twenty- eight days of custody in relation to this matter and that period shall Page 10 of 11 be set off against any custodial sentence imposed by this Court. Thus, Arun is convicted under Section 323 IPC and sentenced to the period already undergone (twenty-eight days). 15. Accordingly, the Criminal Appeal is partly allowed. 16. This Court acknowledges the effective and meaningful assistance rendered by Mr. Satya Narayan Mishra(4), learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an 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 25th September, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 26-Sep-2025 17:00:06 Page 11 of 11