The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 377 of 2004 (In the matter of an application under Section 374(2) of Criminal Procedure Code) Satyajit Rout ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Himanshu Bhusan Dash, Advocate
Legal Reasoning
For the Respondent : Ms. R.B. Dash, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 14.08.2025 :: Date of Judgment: 09.09.2025 S.S. Mishra, J. The present Criminal Appeal arises out of the judgment and order dated 22.11.2004 passed by the learned Additional District & Sessions Judge, Rourkela in G.R. Case No.1536 of 2002, whereby the learned trial Court convicted the accused-appellant under Section 324 of the Indian Penal Code, 1860 (hereinafter referred to as “the Code” for brevity), sentencing him to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for a further period of six months. Prosecution Story 2. The prosecution alleged that during the absence of the informant, the accused passed indecent comments towards his wife, which she later reported to the informant. When the informant protested against such conduct, the accused not only threatened him but also misbehaved with his wife. In the evening of 12.09.2002, the accused allegedly conspired to “teach a lesson” to the informant. At about 6:30 P.M., while the informant was returning from duty, the accused lay in wait on the way, intercepted him, and assaulted him. In the course of the scuffle, when the informant attempted to escape, the accused bit his left thumb and thereafter fled from the spot. Subsequently, the informant lodged an F.I.R., which was marked as Ext. 1 in the trial. Upon investigation, it was revealed that the accused belonged to the general caste and had attempted to woo the wife of the informant, thereby causing resentment among her family members. On Page 2 of 10 facing objection, the accused allegedly assaulted the informant, causing injury. Since the victims belonged to a Scheduled Tribe, the accused’s acts were found to have been committed with the intention to intimidate, humiliate, and outrage their modesty. Subsequently the accused was charged U/s 324/506/509 of the Code and U/s 3(1)(x) & (xi) of the S.C. & S.T. (PoA) Act. The defence, took the plea of complete denial. On this stance of denial, the accused faced trial. 3. To substantiate its case, the prosecution examined ten witnesses in total, while the defence did not examine any. Among them, P.W.1 is the informant-victim and P.W.2 is his wife. P.W.4 is the informant’s brother, and P.W.7 is the wife of P.W.4. P.W.8 and P.W.9 were the Investigating Officers, while P.W.10 was the Medical Officer. The remaining witnesses were residents of the locality; however, they did not support the prosecution and claimed to have no knowledge of the incident. Page 3 of 10 Trial Court’s Analysis and Judgement 4. The learned Trial Court has categorically dealt with the evidence to find out application of all the charges to the present case in para 8 of the impugned Judgement, the same is reproduced here for the convenience of ready reference: 8. P.W.1 is not one occurrence witness to the offence u/s 509 I.P.C. He learnt it from his wife P.W.2. P. W.2 had not supported him. So, his evidence in passing of comments by accused to his wife prior to the occurrence is meaningless. P.W.7 his elder brother wife gave evidence that about 2 years back she found the accused winking to the wife of her husband's elder brother (P.W.2) and also whistling her but she had no courage to object, to it though she reported it to her husband. Her evidence did not reveal if the aforesaid acts of accused was to the annoyance or objection of P.W. 2. It simply hinted that it was with the consent of P.W 2 or to her enjoyment indicating affair and that is why P.W.7 could not dare to object it. Therefore such act of whistling and winking may not amount to punishable u/s 509 I.P.C. as there was element of consensus and tecite approval of P.W.2 to such act. Be that as it may it was not the proscution case that the accused had whistled her or winked at her. F.I.R story and claim of P.W.1 the informant is to the effect that the accused was passing comments to his wife during his absence and as he cautioned him, the accused assaulted him and had bitten him, so, the allegation of prosecution had been twisted by P.W.7 and the evidence of P.W.7 is one new one and in this circumstances when it is not supported by P.W. 2 or others it cannot be the basis to act upon and therefore, considering, as a whole, it can be held that the offence u/s 509 1.P.C. could not be brought home. As already Page 4 of 10 mentioned there is no evidence in support of the offence u/s 506 I.P.C. All that the evidence of P.W.1 read with the evidence of medical Officer (P.W.10) revealed that the accused had committed an offence U/s. 324 IPC in biting the left thumb of the informant. It is contended that evidence of the informant is unsatisfactory and not corroborated. P.W.1 had admitted that he was booked in G.R Case No. 1537/2002 u/s.341/323/325/506/34 I.P.C. with the allegation that he had assaulted the accused at 10 A.M. of 12.9.2002. So, it is a case of previous enmity in respect of the Present case taking place in the evening of 12.10.2002. There is admitted case of ill feeling between the parties as P.W.1 had alleged that the accused was passing comments to his wife during his absence. It is well settled that on the sole ground of enmity, interestedness etc. the evidence of one witness cannot be brushed aside. In such situation court is to scrutinise the evidence with caution and in case it is found that such evidence is trustworthy and credible conviction can be recorded. If facts and circumstances warrant, court may demand corroboration, circumstantial or direct from independent source. Keeping the said principle in mind let it be seen whether the evidence of P.W.1 is trustworthy and credible, Nothing has been brought out in cross-examination to discredit the witness. There is no significant contradiction to impeach his credence. His evidence is well corroborated by his F.I.R. Ext.1 and the Medical evidence though P.W.10 the Medical Officer. Merely because the other witnesses did not come to support him or to bring home the rest part of his evidence, his credibility is not at a stake. He is trust worthy. His evidence is clear and cogent to show that the accused had assaulted him and had bitten his left thumb in the evening of 12.9.2002 and thereby, the accused had committed one offence u/s 324 I. P.C. Though he is entitled to be acquitted from the rest of the charges.” . 5. Further in para 9 of the impugned Judgement the learned Court below while appreciating the evidence have found that the charge u/s Page 5 of 10 506/509 of the Code read with section 3(1)(x) and (xi) couldn’t be proved against the present accused-appellant, and concluded as under: “9. In the result, the accused is held not guilty of the offence u/s 506/509 I.P.C. read with section 3(1)(x) & (xi) of SC/ST (PA) Act and acquitted from the said charges. I further find that prosecution could well prove its case u/s 324 I.P.C. against him and accordingly I hold the accused guilty and at convict him u/s 324 I.P.C.”(To be corrected) Submissions by the Counsel for the parties 6. Heard Mr. Himanshu Bhusan Dash, learned Counsel for the appellant and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State. 7. Learned Counsel for the appellant submitted that even assuming the prosecution case to be true, the conviction of the appellant under Section 324 I.P.C. is wholly unsustainable in law. It is argued that the essential ingredient of Section 324 I.P.C. is the use of any dangerous or deadly weapon or means in causing hurt. In the present case, the allegation against the appellant is that he bit the left thumb of the informant. The act of biting, by no stretch of reasoning, can be held to be the use of a weapon or dangerous means. Therefore, the conviction Page 6 of 10 under Section 324 I.P.C. cannot be sustained, even if the evidence adduced by prosecution are taken at its face value. Findings and Observation 8. This Court has considered the submission and perused the evidence on record. From the discussion in paragraph 8 of the impugned judgment, it is manifest that the finding of guilt recorded against the appellant is based solely on the evidence of P.W.1, corroborated by the medical report of P.W.10, to the effect that the appellant had assaulted the informant and bitten his left thumb causing simple injury. While this Court finds no reason to disbelieve the occurrence itself, the legal issue raised requires consideration. Section 324 I.P.C. contemplates causing hurt by means of any instrument for shooting, stabbing or cutting, or any instrument likely to cause death, or by fire or heated substance, poison, corrosive substance, explosive, or by any other means which is inherently dangerous. In the present case, no weapon or such dangerous means has been used. The act of biting by the appellant Page 7 of 10 may constitute an offence of voluntarily causing hurt, but it does not attract the ingredients of Section 324 I.P.C. 9. Accordingly, this Court holds that the conviction of the appellant under Section 324 I.P.C. is not sustainable and is liable to be set aside. However, since the act of assault and biting of the thumb has been duly proved, the appellant is found guilty of committing an offence punishable under Section 323 I.P.C. 10. The learned counsel for the appellant has further submitted that the appellant has already undergone custody for a period of nine days during investigation and trial, which fact is not disputed by the learned Additional Standing Counsel for the State. It is further submitted that the occurrence relates back to the year 2002. The appellant, who was in his mid-thirties at the relevant point of time, must now be in his late fifties. Considerable time has elapsed in the meantime, and there is no allegation of repetition of such offence by the appellant. In such circumstances, it is urged that the appellant deserves to be treated under Page 8 of 10 the provisions of the Probation of Offenders Act, 1958, r/w. Section 360 of the Code of Criminal Procedure. Conclusion 11. Taking into consideration the submission made by the learned Counsel at bar, although as mentioned in the above paragraphs, I hold the accused person guilty of offence U/s.323 of the Code, but think it appropriate to modify the sentence. Considering the entire features of the case I could have dealt with the appellant U/s.4 of the P.O. Act. However, when the Appellant has already suffered imprisonment for nine days, injustice would be compounded if I now grant him the treatment under the Probation of Offender’s Act. I would, therefore, while affirming conviction, reduce the sentence to the period already undergone. However, in the fitness of the case, I feel it appropriate, to affirm the fine amount of Rs.1,000/- , in default of which the appellant shall undergo simple imprisonment for one week. The fine amount shall be remitted to the victim (if alive) as per the procedure contemplated U/s.357 Cr.P.C. Page 9 of 10 12. Accordingly, the CRLA is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 9th September, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 10-Sep-2025 18:56:40 Page 10 of 10