The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.306 of 2006 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Danardan Naik and another ……. Appellants -Versus- State of Odisha ……. Respondent For the Appellants : Mr. Samarendra Mohanty, Advocate For the Respondent : Mr. Raj Bhusan Dash, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 24.07.2025 :: Date of Judgment: 31.07.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants under Section 374(2) of the Cr. P.C., is directed against the judgment and order dated 24.06.2006/06.07.2006 passed by the learned Special Judge, Keonjhar in Special Case No.70 of 1999, whereby the appellants were convicted for the offences under Sections 354/323/34 of I.P.C. and they were sentenced to undergo R.I. for three months each for the offence under Section 354 of I.P.C. and no separate sentence was passed in lieu of their conviction under Section 323 of I.P.C. 2.
Legal Reasoning
Heard Mr. Samarendra Mohanty, learned counsel for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State. 3. The prosecution case in terse and brief is that the victim belonged to Scheduled Tribe and the accused persons belonged to General Caste. The incident occurred on 06.08.99. The victim had a betel shop in the village. On the night of 06.08.99, the accused persons demanded betel from the victim. When she refused to oblige them and closed the shop, the accused persons entered into the house by forcibly opening the door, and they dragged her, threw her on the ground, and assaulted her. They also abused her in filthy language and threatened to kill her. When she raised hullah, her mother and the tuition master reached there, and other villagers also intervened and separated them. Due to the assault, she sustained injury on her person. This incident was reported to the police, and in due course, after completion of investigation and on commitment, Page 2 of 8 the accused persons were put to trial being charged U/s.452/354/323/294/34 of the Indian Penal Code and Section 3(1)(xi) of the S.C. & S.T. (PoA) Act . 4. Although the appellants stood charged for the offence punishable under Sections 452/354/294/323/34 of I.P.C. read with Section 3(1)(xi) of SC & ST (PoA) Act but the learned trial Court relying upon the evidence of the prosecution particularly the evidence of P.Ws.4, 5 and 6 arrived at a conclusion that the appellants are guilty of offences punishable under Sections 354/323 of I.P.C. In lieu of the conviction under Section 354 of I.P.C., the appellants were sentenced to undergo R.I. for three months, however, no separate sentence was awarded on the count of conviction under Section 323 of I.P.C. The appellants have now preferred the present appeal under Section 374(2) of Cr.P.C. assailing the judgment of conviction and
Decision
order of sentence dated 24.06.2006/06.07.2006 passed by the learned Special Judge, Keonjhar. For ready reference, Section 374(2) of Cr.P.C. reads as under:- ―(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other court in which a sentence of imprisonment for Page 3 of 8 more than seven years 2 [has been passed against him or against any other person convicted at the same trial], may appeal to the High Court‖ Reading of the above provision makes it clear that the present appeal on the set of available facts is not maintainable. Even Section 376 of Cr.P.C. assumes relevancy to decide the maintainability of the present appeal. Section 376 Cr.P.C. reads as under:- ―376. No appeal in petty cases.—Notwithstanding anything contained in section 374, there shall be no appeal by a convicted person in any of the following cases, namely:— (a) where a High Court passes only a sentence of imprisonment for a term not exceeding six months or of fine not exceeding one thousand rupees, or of both such imprisonment and fine; (b) where a Court of Session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine; (c) where a Magistrate of the first class passes only a sentence of fine not exceeding one hundred rupees; or (d) where, in a case tried summarily, a Magistrate empowered to act under section 260 passes only a sentence of fine not exceeding two hundred rupees: Provided that an appeal may be brought against such sentence if any other punishment is combined with it, but such sentence shall not be appealable merely on the ground— (i) that the person convicted is ordered to furnish security to keep the peace; or (ii) that a direction for imprisonment in default of payment of fine is included in the sentence; or Page 4 of 8 (iii) that more than one sentence of fine is passed in the case, if the total amount of fine imposed does not exceed the amount hereinbefore specified in respect of the case.‖ 5. This Court is alive to the aforementioned statutory position of law. However, taking into consideration the facts that the incident relates back to the year 1999 and the trial went on for about seven years to only end up on 06.07.2006 and the appeal had been pending since 2006 onwards, this Court is not inclined to knock out the appeal on the technical ground as mentioned above particularly for the reasons that the learned trial Court by a deep analysis of the evidence brought on record has found the appellants guilty for the offences as mentioned above. The analysis of the evidence is apparently reflecting in in paragraphs-6, 7 and 8 of the impugned judgment, which are reproduced hereunder:- ―6. P.Ws.1.2, and 3 denied to have any Knowledge about the case. P.W.4 is the victim. She deposed that all the accused persons came to her house at night and called her. When she refused 'to sell `betel, the accused persons quarrelled with her and dragged her from her house and assaulted her. So she fell down. P.W.5, the mother of the victim deposed, that by hearing hullah of her daughter, she came out of the house and saw her daughter struggling and 3 persons assaulting her. As her eye sight was not good she was not able to recognise them. P.W.6 deposed that by hearing hullah he came out of the house and saw all the accused persons assaulting the victim. He tried to save her and separated them and he was also assaulted. P.W.7 Page 5 of 8 deposed that he saw the accused persons quarrelling with the victim and he intervened and separated them. P.W.8 deposed that he heard about the quarrel. 7. The evidence of P.Ws. 4, 5, and 6 revealed that the accused persons dragged a woman at night and assaulted her. All these witnesses stood the test of cross-examination and nothing was elicited from them to discredit their version. It is contended that the victim was not in good terms with the accused persons and all the witnesses are interested witnesses. 8. It is true that P.W.4 admitted that she also files another case against the villagers and deposed in that case. This shows that there was some misunderstanding between the villager and the victim. It is well settled that enmity is a double edged weapon and it can be used in either way. In the decision reported in 2000(2) Crimes (SC)137 Suresh Raj –Vs- State of Bihar, their lordships held that ―Enimiy, undoubtedly, is a double-edged weapon; it may be a motive for commission of crime; it may also be a motive for false implication.‖ So enimity itself is not a ground to reject the evidence. It is true that P.W.5 is the mother of the victim and P.W.6 is the Tution Master employed by the victim the related cannot be equated with (P.W.4). But interestedness nor anything was brought out from p.w.6 to show that he had any motive to implicate the accused persons falsely. Marely because P.W.6 was working as a Tution-master he cannot be treated as an interested witness. Moreover, P.W.5 appears to be a truthful witness. If she had any intention to depose falsehood, she could have deposed that she saw the assault, but she frankly deposed that she was not able to identify the persons as her eye sight was poor and she only deposed about assault on her daughter by three persons. The evidence of p.w.5 lends full corroboration to the version of P.Ws.4 and 6. P.W.7 also supported the evidence of P.W.4 and his evidence revealed that there was a quarrel between the accused persons and the victim. So the evidence of P.Ws.4 to 7 taken together shows that the accused persons by dragging the victim and assaulting her used criminal force to a woman.‖ Page 6 of 8 6. While analyzing the evidence on record, I find no reason to disagree with the findings returned by the learned trial Court as has been reproduced above. Hence, I affirm the conviction recorded against both the appellants for the offences under Sections 354/323 of I.P.C. However, coming to the quantum of sentence, it appears that the learned trial Court has only awarded a sentence of three months of R.I. as against the statutory provision mandating the Court to not only impose the sentence but also the fine. That apart, on the count of the conviction under Section 323 of I.P.C., no sentence is awarded. Therefore, this is a case where while affirming the conviction, the sentence awarded by the learned trial Court is liable to be varied. At this stage, Mr. Mohanty, learned counsel for the appellants submitted that the appellants have already undergone imprisonment of two days. Therefore, they may not be sent back the custody to serve out the sentence at the belated stage. The incident relates back to the year 1999. At that point in time, the appellants were at their early 40s. At present both the appellants must be in their late 60s. Therefore, sending them to custody at this stage would definitely be harsh on them and detrimental to the entire family. Too Page 7 of 8 much have changed in between in regard to their social status and they have already well integrated into the society. Therefore, I am inclined to accede to the prayer made by Mr. Mohanty, learned counsel for the appellants. 7. Accordingly, the sentence of three months R.I. awarded against the appellants is reduced down to that of the custody they have already undergone, however, I impose a fine of Rs.10,000/- (Rupees ten thousand) each to the appellants, in default of payment of fine, they shall undergo S.I. of one month. The fine amount to be deposited by the appellants shall be disbursed to the victim in accordance with the provisions of Section 357 Cr.P.C. 8. Hence, the CRLA is partly allowed. The High Court of Orissa, Cuttack. Dated the 31st of July 2025/ Ashok (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 01-Aug-2025 20:18:06 Page 8 of 8