Laxmidhar Behera, Son of Biranchi Behera, Village - Khunta, Police Station - Khunta, District v. State of Orissa

Judgment

10.12.2025.

23.10.2025,

14.11.2025 J U D G M E N T Heard. Mr. Amitav Tripathy, learned Amicus Curiae for the appellant and Mr. Devaraj Mohanty, learned Additional Government Advocate for the respondent State.

2. Being aggrieved with the judgment of conviction and sentence dated

07.05.1993 passed by learned Sessions Judge, Mayurbhanj, Baripada, convicting him under Section 323 of the Indian Penal Code and sentencing him CRA No. 153/1993 to undergo Rigorous Imprisonment for a period of six months in Sessions Trial Case No. 67 of 1992, the convicted accused appellant Laxmidhar Behera has preferred this statutory criminal appeal under Section 374 of the Code of Criminal Procedure.

3. Perused the case record of Sessions Trial Case No. 67 of 1992 as well as

Facts

G.R. Case No. 163/1991 arising out of Khunta Police Station Case No. 56/1991 under Section 302/34 IPC.

4. Prosecution’s case is that on 10.08.1991, one Ghanashyam Roy (PW.14) lodged a written FIR before the Circle Inspector of Police at Udala stating that he is the nephew of the deceased Gaurahari Nayak, Assistant Engineer, Minor Irrigation Project, Udala. On 06.08.1991 hearing that said Nayak was seriously ill and suffering at his Baramunda house at Bhubaneswar, he went to the house of said Nayak and found him unconscious. On advice of Dr. Biranchi Narayan Pattanayak, said Nayak was shifted to Unit No. VI of the Government Hospital, Bhubaneswar, wherein he was admitted as an indoor patient. As the condition of said Nayak turned serious, he was shifted to S.C.B. Medical College & Hospital at Cuttack, wherein he was admitted on the intervening night of 06th/07th August 1991 around 00:30 a.m. in its Casualty Department. Later said Nayak was shifted to Medicine Department of the said hospital. As per doctor’s advice, scanning of brain of said Nayak was done at Lord’s Clinic at Kottak on the morning of 07.08.1991 and he was detected with brain hemorrhage. Thereafter, Professor Dr. Sanatana Rath decided to have surgery on said Nayak on 08.08.1991. Unfortunately, on 07.08.1991 itself around 09:30 p.m. said Gaurahari Nayak expired and his dead body was buried

Legal Reasoning

On completion of the investigation of the case and finding prima facie materials, the Circle Inspector, Udala on 03.03.1992 submitted the charge sheet in said Khunta P.S. Case No. 56/1991 against the present accused appellant Laxmidhar Behera, Sudhanshu Sekhar Mohanty, Pradeep Kumar Mohanty and Maheshwar Behera, all under Khunta Police Station, under Sections 302/34 of the IPC, submitting that there are well established evidence against those accused persons of the case.

10. Learned Sub-Divisional Judicial Magistrate, Udala on 30.04.1992 committed the said G.R. Case No. 163/1991, arising out of Khunta P. S. Case No. 56/1991, to the Court of learned Sessions Judge, Mayurbhanj, as the charge sheet in said Khunta P. S. Case is under Section 302 IPC that is exclusively triable by the Court of Sessions.

11. After receipt of record of said G.R. Case No. 163/1991, it was re- registered and numbered as Sessions Trial (S.T.) Case No. 69/1992 before the Court of learned Sessions Judge, Mayurbhanj, Baripada.

12. The learned Sessions Judge, Mayurbhanj at Baripada, on 15.09.1992, in said S.T. Case No. 67/1992 framed charge under Sections 302/34 IPC against the above noted four accused persons of the case including the present appellant and he read over the charges and explained those to them, to which CRA No. 153/1993 those accused persons pleaded not guilty and claimed to be tried. Accordingly, the trial of the case began.

13. During the trial of the case the prosecution adduced evidence of nineteen numbers of its witnesses and exhibited twelve numbers of Exhibits to establish the guilt of the accused persons of the case. The defence neither adduced any evidence nor exhibited the documents, but they cross-examined the prosecution witnesses. After completion of recording of evidence of prosecution witnesses, the learned Trial Court examined the accused persons under Section 364 CrPC and recorded their statements accordingly, where, all the accused persons including the accused appellant denied the alleged imputations made against them by the prosecution witnesses.

14. After conclusion of the trial, learned Sessions Judge, Mayurbhanj, Baripada, by its Judgment dated 07.05.1993 passed in said S.T. Case No. 67/1992 held that the prosecution failed to establish that the accused persons of the case caused the death of the deceased Gaurahari Nayak and further held that all the four accused persons including the accused appellant are not guilty of the charges under Sections 302/34 IPC.

15. However, relying on the evidence of Prosecution Witness Nos. 1, 2, 4, 6, 15, 16 and 17, the Trial Court by the impugned Judgment dated 07.05.1993 passed in said S.T. Case No. 67/1992 came to the conclusion that the prosecution established the accused appellant Laxmidhar Behera voluntarily assaulted and caused some injuries to the deceased Gaurahari Nayak and therefore, convicted him to be guilty under Section 323 IPC and accordingly, sentenced him to undergo Rigorous Imprisonment for a period of six months.

16. Section 323 of the IPC pertains to Punishment for voluntarily causing hurt and it reads as ―Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or which fine which may extend to one thousand rupees, or which both.‖ CRA No. 153/1993

17. As settled the essential ingredients of the offence under Section 323 IPC are – (i) Accused voluntarily caused bodily pain, deceased or infirmity to the victim; (ii) The accused did so with intention of causing hurt or with the knowledge that he would thereby cause hurt to the victim.

18. PW.1 is one Jayakrushna Sahoo. From his evidence, it is seen that the alleged incident occurred on a Sunday evening around 07:30 pm in his tea stall and he deposed that while the gentleman was sitting in his tea stall, the accused appellant asked the said man as to why he did not pass the bill, to which the said man replied that the bill will be passed in due time, and then the accused appellant verbally charged that man, to which he also replied. For such reasons the said PW asked both the gentleman and the accused appellant not to shout in his shop and asked them to go away. During his cross examination by the accused appellant the PW1 stated that he did not know why the gentleman was sitting in his shop and also denied that there was no exchange of words between the accused appellant and the said gentleman in his shop. So from the evidence of PW.1 there is no material before the Court that the accused appellant caused any bodily pain or caused hurt to the victim except verbal exchange of words between them.

19. PW.2, Khagendra Choudhury was declared as hostile by prosecution and prior to his declaration as hostile he did not implicate the accused appellant.

20. PW.4, Purna Chandra Khandapatra, a sweet maker in a shop of Harekrushna Sahu, whose shop is adjacent to the shop of PW.1, was also declared as hostile by the prosecution and prior to his declaration as hostile he too did not implicate the accused appellant.

21. PW.6, Ramhari Behera, a Junior Engineer in the Minor Irrigation Section at Khunta, where the deceased Gaurahari Nayak was his controlling Sub- Divisional Officer of said M.I. Sub-Division though stated that he was with the CRA No. 153/1993 deceased all along on the date of the incident and also stated that the deceased sat on the shop of PW.1 awaiting for bus, but he deposed that at the relevant time he was not available in the place of occurrence and he did not see any incident, as he went to Khunta Office to park his motorcycle.

22. PW.15, Chittaranjan Nayak is the brother of the deceased. From his evidence it can be seen that, he, for the first time deposed before the Court that on his enquiry and being enquired by sister and wife of the deceased, before his death the deceased told them about the alleged incident implicating the accused appellant and others. In his cross examination, said PW.15 clearly stated that he did not state before the I.O. that all the accused persons assaulted the deceased due to which he fell down after the occurrence.

23. PW.16, Smt. Jayanti Nayak is the wife of the deceased. From her evidence it can be seen that, she, for the first time deposed before the Court that on her enquiry, on the third day of his reaching home at Bhubaneswar, the deceased before his death told her about the alleged incident implicating the accused appellant and others. In her cross examination by the defence, said PW.16 clearly stated that she did not state the names of the accused persons before the I.O. and further stated that she did not tell anyone about those that she had heard from her husband before his death.

24. PW.17, Surendra Nath Tripathy, Executive Engineer, Minor Irrigation Division, Baripada in his evidence has deposed that the deceased Gaurahari Nayak was Assistant Engineer, Minor Irrigation, Udala Sub-Division and he came to his office on 29.07.1991 around 04.45 p.m. and he was looking pale. On being asked by him, the deceased replied that his spectacle broke and that he had just returned from the Eye Specialist. Said PW.17 deposed that as he was in hurry, he left and by the time he returned to his office the deceased was found absent. Said PW.17 also deposed that on 30.07.1991 the deceased talked to him over phone and stated that he was heckled by the accused appellant and others at Khunta Chhak, and then he advised the deceased to report the matter before the police station and to give a copy of the report to his office. CRA No. 153/1993

25. PW.17 further deposed that on 02.08.1991 his office received an application from the deceased by which he applied for leave stating that he would go for medical treatment and check-up. During his cross-examination by the defence, PW.17 denied that he did not state before the I.O. that the deceased told him over phone on 30.07.1991 that the accused appellant and other persons had heckled him at Khunta chhak. During such cross- examination, the said PW.17 also stated that bill of the accused appellant was not pending in his office till July, 1991 and further stated that the accused appellant was not doing work in his Department during the said period.

26. While going through the evidence of the prosecution witnesses, it is seen that the PW.19, the concerned Investigating Officer of the case in his evidence clearly stated that the PW.17 Surendra Nath Tripathi, Executive Engineer, Minor Irrigation Division, Baripada did not state before him that he, on 30.07.1991 received phone call from the deceased Gaurahari Nayak stating that the accused appellant and others hackled him at Khunta chhak.

27. It is also seen from the evidence of PW.9 Dr. Bishnu Charan Tripathy who was the Assistant Professor of Neuro-Surgery in SCB Medical College & Hospital, Cuttack deposed that the deceased was admitted in the Neuro- Surgery Ward on 07.08.1991 around 08:45 p.m. with left parieto occipital hemorrhage and in an extremely low condition and that the said person died on the same day around 09:30 p.m. During his cross-examination by the defence, said PW.9, Dr. Tripathy stated that bleeding inside the brain is possible due to high blood pressure, but bleeding in the scalp is unlikely due to high blood pressure. He stated that the patient was initially admitted to Medicine Ward of SCB Medical College & Hospital, but subsequently he was transferred to the neurosurgery ward of the said hospital. Said PW.9, Dr. Tripathy clearly stated that the patient was not treated as medico legal case and he was declared dead by their neurosurgery department and that they did not refer the dead body for post mortem examination. He further stated that in the Death Certificate, the presence of external injuries was not recorded. Further, during his cross- examination, said PW.9 stated that injury to the brain can be caused due to CRA No. 153/1993 excitement and medical diseases and that, had there been any indication that it was a medico legal case, they would not have released the dead body without referring it for post mortem examination and that the conclusion on the Bed- Head Ticket regarding the cause of death of the deceased was based on the scanning report.

28. It is seen that PW.16, wife of the deceased, in her evidence, did not state the presence of the brother of the deceased Chittaranjan Nayak PW.15 or the sister of the deceased Nirjharani while making the dying declaration by the deceased.

29. Further, it is seen that Exhibit No. 2 - Bed Head Ticket of the deceased Gaurahari Nayak of the Capital Hospital, Bhubaneshwar, issued on 06.08.1991 clearly reflects that no external injuries were seen on the said patient.

30. During investigation of the case, the Investigating Officer on

20.08.1991 produced Jayakrushna Sahoo (PW.1) and Khagendra Choudhury (PW.2) before the Sub-Divisional Judicial Magistrate, Udala for recording of their statements under Section 164 CrPC, and the said Magistrate on 20.08.1991 itself recorded their statements under Section 164 CrPC, which were exhibited by the prosecution as Exhibits - 11 and 12 respectively and were also proved by the concerned I.O. (PW.19). It is seen that PW.1 during his cross-examination stated before the trial Court that police officers asked him to give statements according to their coaching that he refused to oblige and gave his statement as recorded by the SDJM, Udala on 20.08.1991 (Exhibit-11). In his said Section 164 CrPC statement recorded by the Magistrate, said PW.1 did not implicate the accused appellant of assaulting the deceased during the alleged incident.

31. It is seen from the evidence of PW.2 Khagendra Choudhury that he was kept in custody by police for three days and they wanted his statement. As noted above, said PW.2 was produced before the SDJM, Udala on 20.08.1991 along with PW.1 and the said Magistrate on 20.08.1991 also recorded the Section 164 CrPC statement of PW.2 (Exhibit-12). However, from the order dated 20.08.1991 of the SDJM, Udala passed in G R Case No. 163/1991 arising CRA No. 153/1993 out of Khunta P S case No. 56/1991 as well as the records of the case, nothing could be found in the record how much reflection time were given by the said Magistrate either to the said PW.2 or PW.1 except observing that he recorded the statement of those two witnesses observing all formalities.

32. It is also seen from the judgment of the trial Court that the prosecution failed to prove the dying declaration of the deceased, implicating the accused persons with his death. The trial Court in the impugned judgment dated

07.05.1993 further found that the prosecution failed to prove that the death of the deceased occurred due to any assault and also failed to prove the motive on the part of the accused persons to cause the death of the deceased.

33. From the provisions of Section 323 IPC and the evidence of the prosecution witness nos. 1, 2, 4, 6, 15, 16 and 17 and also from the evidence of other prosecution witnesses as well as the Exhibits placed by the prosecution before the trial Court, this Court found that those are not sufficient to punish the accused appellant under Section 323 IPC. Moreover, as noted above, there are many contradictions in the evidence adduced by the prosecution witnesses.

34. For the reasons above, this Court is of the opinion that the prosecution failed to bring home the charge of Section 323 IPC with regard to the accused appellant beyond any reasonable doubt.

35. Accordingly, the impugned judgment of conviction and sentence dated

07.05.1993 passed by learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial Case No. 67 of 1992 arising out of Khunta P S Case No. 56/1991 corresponding to G R Case No. 163/1991 relating to the appellant under Sections 323 IPC is hereby set aside and quashed.

36. The appellant is already on bail in this appeal pursuant to Order No. 3 dated 20.05.1993 passed earlier in this proceeding and he is set at liberty forthwith.

37. The bailors/sureties, if any, stand discharged and the bail bond stands cancelled. CRA No. 153/1993

38. Registry shall communicate this Judgment to the learned Sessions Judge, Mayurbhanj, Baripada for his necessary use and shall also forward a copy of the Judgment to the said Court for keeping the same in the record of S.T. Case No. 67 of 1992 arising out of Khunta P S Case No. 56/1991 corresponding to G R Case No. 163/1991.

39. We appreciate the services rendered by both Mr. Amitav Tripathi, learned Amicus Curiae for the appellant as well as Mr. Devaraj Mohanty, learned Additional Government Advocate for the State respondent adjudicating this matter by assisting the Court.

40. The Legal Services Authority of the High Court of Orissa shall pay the necessary remuneration to Mr. Amitav Tripathi, learned Amicus Curiae, who appeared on behalf of the convicted appellant, on raising a bill. (Manash Ranjan Pathak) Judge High Court of Orissa, Cuttack. The 10th day of December, 2025. S.K. Parida ADR-cum-APS. Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 24-Dec-2025 21:43:55 CRA No. 153/1993

Arguments

on 08.08.1991 at village Narigaon as per the customs.

5. The informant Ghanashyam Roy in his FIR also stated that, on enquiry he learnt from his aunt Smt. Jayanti Nayak, wife of the deceased Gaurahari Nayak that said Gaurahari Nayak on 02.08.1991 around 10:00 p.m. reached his house at Baramunda, Bhubaneswar in a car from Udala with Pranaba Padhi @ Pagool, Pradeep Biswal of Udala and Satrughana Sahoo, and that said Nayak was complaining to her about pain on his body and severe pain on his head. CRA No. 153/1993 When she enquired from her husband said Nayaka about the reason for such pain, he told her that on 28.07.1991 Sunday he went to Talukunda for supervision of slab casting work. Around 08:30 p.m. while he was waiting for bus to Udala at Khunta Chhak, he was rounded up by contractor Laxmidhar Behara of Khunta, Tiki @ Pradip Mohanty, Bida @ Sudhanshu Mohanty and others at Khunta Chhak. Then Laxmidhar Behara threw hot tea on his face and brutally assaulted him with his associates by means of bottom of the tea glass on the back side of his head and that he was thrashed by means of fist blows and kicks. Then they threw him down on the ground, but on the interference of local people, the accused persons went away. Said Nayak being an Engineer, out of shame, he could not report the matter at Khunta Police Station, as mere Contractors assaulted him, but he disclosed the said matter on the next day at Baripada before the Executive Engineer and others about the said assault. Stating that since the death of said Gaurahari Nayak was due to the assault by those accused persons, the informant Ghanashyam Roy by the said FIR requested the police authorities to take proper action against the culprits.

6. Said FIR was accordingly received by the Circle Inspector at Udala on

10.08.1991, who registered a case under Section 302/34 IPC and took up the investigation of the case and sent the said FIR to Khunta Police Station for formal registration of the case. On 10.08.1991 itself the said matter was registered as Khunta Police Station Case No. 56/1991 under Section 302/34 IPC corresponding to G.R. Case No. 163/1991.

7. On 12.08.1991, the dead body of said Gaurahari Nayak was exhumed from Narigaon in presence of the Investigation Officer as well as Block Development Officer cum Executive Magistrate of Dasarathpur and Inquest on the person of the said deceased was done in presence of the Executive Magistrate cum BDO, Dasarathpur and other witnesses preparing the necessary Inquest Report. Thereafter, the exhumed body of the deceased Gaurahari Nayak was sent to the Sub-Divisional Hospital, Jajpur for its post mortem examination. On 13.08.1991, post-mortem examination of said deceased CRA No. 153/1993 Gaurahari Nayak was done in said Sub-Divisional Hospital at Jajpur by the autopsy doctor Akshya Kumar Thatoi (PW.18).

8. During the investigation of the case, the accused appellant Laxmidhar Behera along with another accused Tiki @ Pradeep Kumar Mohanty surrendered before the learned S.D.J.M. at Udala on 09.09.1991 in G.R. Case No. 163/1991 arising out of said Khunta P.S. Case No. 56/1991 and accordingly, they were taken in to custody. On 12.09.1991 another accused, namely, Bida @ Sudhansu Sekhar Mohanty surrendered before the learned S.D.J.M. at Udala and he was also sent to custody. Later, by Order dated 24.09.1991, learned Sessions Judge Mayurbhanj, Baripada granted bail to those three accuse persons including the accused appellant Laxmidhar Behara in said G.R. Case No. 163/1991.