The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.97 of 1997 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Subal Naik & others ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. P.K. Maharaj, Amicus Curiae For the Respondent : Mr. Raj Bhusan Dash, ASC CORAM:
Legal Reasoning
Court, as Amicus Curiae to assist this Court in the matter. 3. Heard Mr. P.K. Maharaj, learned Amicus Curiae appearing for the appellants and Mr. R.B. Dash, the learned Additional Standing Counsel appearing for the State. 4. The prosecution case in brief and terse is that Brahmananda Mohanty was working as Range Officer in Soil Conservation Office, Sorada under Bhanjanagar Division in the district of Ganjam. On 08.11.1994 at 6 A.M., he left Sorada for Bhanjanagar along with Rabindra Pradhan, Junior Assistant of his office in a Rajdoot Motor Cycle being Registration No.O.A.S. 1165 for office work in the Divisional Office. In the Divisional Office, Bijaya Narayan Singh, the Assistant Soil Conservation Officer entrusted him a sum of Rs.1,02,400/- for payment Page 2 of 11 to the labourers. The Range Officer kept the amount in the side box of the Rajdoot motor cycle and locked the same. After the office work, on the same day at about 6 P.M., he left Bhanjanagar for Sorada with his Junior Assistant- Rabindra Pradhan in the same Rajdoot motor cycle. When, the motor cycle being driven by Rabindra Pradhan, was proceeding towards Sorada, on the way near Kantaipolli Chhaka at about 6.30 P.M., about 10 to 11 unknown culprits within age group of 20-25 years, being armed with knives obstructed their way. When they stopped their motor cycle, all of a sudden, the culprits dealt fist blows and slaps to Rabindra Pradhan and fist blows, slaps and knife blows to the Range Officer- Brahmananda Mohanty causing bleeding injuries on their persons. The culprits broke open the side box of the motor cycle and took away the cash of Rs.1,02,400/-. After the culprits left the spot, the Range Officer and his Junior Assistant with great difficulties went to Sorada in the motor cycle. Since the condition of the Range Officer was very serious, he was left in the Government Hospital, Sorada and the Junior Assistant- Rabindra Pradhan went to Sorada Police Station and reported the fact in writing. Basing on the said report, the O.I.C., Sorada Page 3 of 11 Police Station registered P.S. Case No.51 of 1994 and transferred the same to Gangapur Police Station on the point of jurisdiction. The Officer-in-charge of Gangapur Police Station on receipt of the report, registered P.S. Case No.101 of 1994 and took up the investigation. After the charge sheet was filed, charges were framed and the accused were put to trial. 5. The prosecution in order to bring home charges examined total 14 witnesses. Out of whom, P.W.1- Brahmananda Mohanty was the then Soil Conservation Range Officer, Sorada, P.W.2- Rabindra Pradhan was the then Junior Assistant in Soil Conservation Range Office, Sorada, P.W.3- Smt. M. Smita Rao is the wife of accused- M. Rama Mohan Rao, P.W.4- Debaraja Sahu and P.W.-8- T. Saroj Patra were the seizure witnesses, P.W.5- Panu Sahu was the person from whose house, the culprits gave recovery of the stolen amount of Rs.20,000/-. P.W.9- Dillip Naik was the witness before whom the accused persons, namely, Jagannath Jena and Subala Naik confessed to have committed the dacoity, P.W.11- Sambhunath Swain was an eye witness to the occurrence. P.W.6- Dr. Jagadananda Mishra was the Lecturer in Surgery Page 4 of 11 attached to the M.K.C.G. Medical College, Berhampur, who examined P.W.1; P.W.7- Dr. Ghanashyam Das was the then Medical Officer, Government Hospital, Sorada, who examined both P.Ws. 1 and 2. P.W.10- Md. Ibrahim Khan was the then Assistant Executive Engineer, Grid Sub-station, Kantaipolli, P.W.12- Rajendra Kumar Tosh was the then Judicial Magistrate First Class, Bhanjanagar, who conducted the T.I. Parade, P.W.13- Dillip Kumar Mohanty was the then Officer-in- charge of Gangapur Police Station, who investigated the case and submitted the charge sheet and P.W.14 is Sitaram Satapathy, who was the then Officer-in-charge of Sorada Police Station, who initially registered the case and sent the same to the Officer-in-charge, Gangapur Police Station on the point of jurisdiction. The defence has examined one Rama Chandra Dash, the Cashier, Urban Bank, Bhanjanagar as D.W.1. 6. Learned trial Court, by heavily relying upon the testimony of P.W.1, the Soil Conservation Range Officer, Sorada and P.W.2- the then Junior Assistant Soil Conservation Officer from whom the accused persons have stolen the cash by assaulting them committed dacoity. The Page 5 of 11 learned trial Court has also relied upon P.W.7, the Medical Officer, who has deposed that the P.W.1 has sustained the following five injuries: “ (1) An incised wound of size 1” x 1/4" over the right eye brow; (2) An incised wound of size 1/2" x 1/4" below the right eye; (3) An incised wound of size 1/2" x 1-1/2 4” below the left eye; (4) An incised wound of size 1” x 1/2" over the left side of the scalp near midline; and (5) A swelling of size 1” x 1” over back in lumbo sacrul area”. 7. The learned trial Court also relied upon the fact that the accused persons were identified by the witnesses during the T.I. Parade. Hence, taking into consideration the evidence in its entirety, the learned trial Court found the present appellants guilty of the offence under Section 395 of the IPC by concluding as under: “36. To sum it up, I do not find any reason to disbelieve the evidence of the victims- P.Ws. 1, 2 and also P.Ws. 6, 7, 10, 12, 13 and 14. They are not related between themselves and even with the accused persons in any manner. P.Ws. 1 and 2 are strangers to the accused persons. I have gone through the evidence of P.Ws. 1 and 2. I do not find any reason at all to come to a conclusion that the evidence tendered by P.Ws. 1 and 2 do not represent the true state of affairs. The evidence of both P.Ws. 1 and 2 coupled with the other oral and documentary evidence, is established beyond any reasonable doubt that the accused- Subala Naik, Padma Naik it Page 6 of 11 and Kandha Behera along with some unknown culprits numbering more than 5 committed the dacoity.” Accordingly, the appellants were sentenced to undergo R.I. for eight years and to pay fine of Rs.5,000/- (Rupees five thousand) each and in default, to undergo R.I. for two more years. 8. Being aggrieved by the aforementioned conviction and sentence, the appellants have filed the present Criminal Appeal. 9. I have gone through the evidence on record and in the light of the evidence brought on record by the prosecution. I have also analysed the impugned judgment under challenge. 10. The evidence of P.Ws. 1 and 2 are consistent, which draw corroboration in the evidence of P.W.7. The appellants were also identified by a procedurally well conducted T.I. Parade. Paragraph-23 of the judgment under challenge is important to be reproduced here, which reads thus: “23. Now the question arises whether the accused persons were identified by the witnesses as the culprits during investigation. P.W.1 stated that T.I. parade was conducted in respect of the suspects. In the first T.I. Parade, he could only identify the suspect- Subala Naik as the culprit. In the second T.I. Parade, he could not identify any of the suspects. P.W.2 Page 7 of 11 also stated that he was an identifying witness of the T.I. Parade, which was conducted on two different dates. According to him, in the first T.I. Parade he could identify the suspects- Subala Naik and Padma Naik as the culprits. In the second T.I. Parade, he could identify the suspect- Kandha Behera as one of the culprits. P.W.13- the Investigating Officer, stated that on 14.11.94 he arrested the accused- Subala Naik, Padma Naik, Jagannath Jena, Bidesi Khanduala and M. Rama Mohan Rao and on 15.11.1994 he forwarded them to the Court and also on 21.11.1994 he prayed the Court for their T.I. Parade. But Ext.19, the requisition of the I.O. to the Court, discloses that he did not make any prayer for conducting T.I. Parade of accused- M. Rama Mohan Rao. P.W.13 further stated that on 1.12.1994 he arrested the accused- Kandha Behera and on 2.12.1994 forwarded him to the Court and on 7.12.1994 made a prayer for conducting his T.I. Parade. But P.W.12 the then Judicial Magistrate First Class, Bhanjanagar stated that he conducted the T.I. Parade in respect of the accused- Subala Naik, Padma Naik and Kandha Behera. He could not conduct the T.I. Parade in respect of the accused- Bidesi Khandual and Jagannath Jena as they were shifted to Berahmpur vide order dated 16.11.1994 of the Special Judge, Berhampur. According to P.W.12 on 28.11.1994 he conducted the T.I. Parade in respect of accused – Subala Naik and Padma Naik inside the Special Sub Jail, Bhanjanagar. He first allowed the accused-Subala Naik and Padma Naik to stand on the place of their choice on a queue of 16 other undertrial prisoners of similar physique in well lighted place. Then first the identifying witnesses- Rabindra Pradhan (P.W.2), who was waiting outside the jail was allowed to come in and after brief interrogation, he was asked to identify the suspects standing on the queue. After his identification, he was kept in a separate enclose outside view of the other witnesses. Then the second identifying witness- Brahmananda Mohanty (P.W.1) was allowed to come inside and was asked to identify the suspects standing on the queue. According to P.W.12, Rabindra Pradhan (P.W.2) correctly the suspects- Subal Naik and Padma Naik. But witness- the Brahmananda Mohanty (P.W.1) correctly identified both identified Page 8 of 11 suspect- Subal Naik only. Added to it, P.W.12 further stated that witness- Rabindra Pradhan (P.W.2) explained before him that he could identify the suspect- Subala Naik as he was giving direction for the entire incident including to break open the box. It was also stated before him by P.W.2 that he could identify the suspect- Padma Naik as he was trying to snatch away the motor cycle. P.W.12 further stated that witness- Brahmananda Mohanty (P.W.1) explained before him that he could identify the suspect- Subala Naik as he dealt blows and threatened to assault him. On 12.12.1994 P.W.12 also conducted the T.I. Parade inside the Special Sub Jail, Bhanjanagar in respect of the suspect- Kandha Behera. According to him, P.W.2- Rabindra Pradhan could only identify the suspect- Kandha Behera to be the culprit as he was assaulted by him during the incident. But Brahmananda Mohanty (P.W.1) could not identify the suspect- Kandha Behera as stated by P.W.12. P.W.12 further stated that during the time of T.I. Parade on both the occasions, the suspects never raised any objection. Exts. 7 and 8 are the reports of the T.I. Parade prepared by P.W.12. On perusal of Exts.7 and 8, it reveals that the T.I. Parade were conducted inside the premises of Special Sub Jail, Bhanjanagar in presence of the jail authorities and out of the sight of the police. I do not find any infirmity in the T.I. Parades conducted by P.W.12. Thus the evidence of both P.Ws. 1 and 2 relating to the identification of accused- Subala Naik, Padma Naik and Kandha Behera, is corroborated by the evidence of P.W.12 and Exts. 7 and 8. However, it is seen that P.W.1 could only identify the accused- Subala Naik as one of the culprits whereas P.W.2 identified all the three suspects- Subala Naik, Padma Naik and Kandha Behera as culprits. Thus it is clearly established from the evidence of both P.Ws. 1 and 2 coupled with the reports of the T.I. Parade, Exts. 7 and 8 that the accused – Subala Naik, Padma Naik and Kandha Behera were the culprits, who along with other culprits committed the crime.” Page 9 of 11 11. I find no reason to disagree with the finding returned by the learned trial Court and hence confirm the conviction recorded by the learned trial Court against the appellants. 12. Mr. P.K. Maharaj, learned Amicus Curiae, at this stage has pointed out that the appellant no.1- Subal Naik has already served out of entire sentence of eight years whereas appellant no.2- Kandha @ Chandra Behera has undergone ten years of R.I. and appellant no.3- Padma Naik has also undergone ten years custody out of total sentence. The custody certificate issued by the Superintendent, Special Jail, Bhanjanagar in regard to the total custody undergone by all the three appellants individually as mentioned above have been placed on record. 13. In view of the aforementioned period of imprisonment already undergone by each of the appellants, the sentence imposed by the learned trial Court in lieu of the conviction under Section 395 of the IPC stood satisfied, as the total sentence period have already been served out by all the appellants. 14. This Court records appreciation for the effective and meaningful assistance rendered by Mr. P.K. Maharaj, learned Amicus Curiae. He is Page 10 of 11 entitled to the honourarium of Rs.7,500/- (Rupees seven thousand five hundred) as a token of appreciation by the State. 15. Hence, the Criminal Appeal stands dismissed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 19th of August, 2025/ Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 19-Aug-2025 19:36:37 Page 11 of 11
Arguments
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 24.07.2025 : Date of Judgment: 19.08.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants under Section 374 of the Cr. P.C., is directed against the judgment and order dated 21.02.1997 passed by the learned Assistant Sessions Judge, Bhanjanagar, District- Ganjam in S.C. No.18 of 1995/S.C. No.196/1995- GDC, whereby the learned trial Court has convicted each of the accused- appellants for the offence punishable under Section 395 of the IPC and sentenced each of them to undergo R.I. for eight years and to pay fine of Rs.5,000/- (Rupees five thousand) each, in default, to undergo further R.I. for two years each under Section 395 of the IPC. 2. None appeared for the appellants on the last date of listing. So this Court appointed Mr. P.K. Maharaj, Advocate, who was present in the