The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.203 of 1994 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Nepal Bariha and others ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Bijaya Kumar Ragada, Amicus Curiae For the Respondent : Mr. Sarathi Jyoti Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 31.07.2025 :: Date of Judgment: 25.09.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants under Sections 374(2) of the Cr. P.C., is directed against the judgment and order dated 31.05.1994 passed by the learned Additional Sessions Judge, Balangir in Sessions Case No.4/2 of 1994 arising out of G.R. Case No.46 of 1993, whereby the learned trial Court while acquitting the accused-appellants, namely, Sushil Panigrahi, Ramesh @ Ranjan Sethi, Premananda Bariha and Petu Sethi from all the charges; convicted the present appellants for the offences under Sections 148/325/294/379 of I.P.C. read with Section 149 of I.P.C. and on that count, they were sentenced to undergo R.I. for five years and to pay a fine of Rs.200/- each, in default of payment of fine, to undergo further R.I. for one month for the offence under Section 325 of I.P.C. They were also sentenced to undergo R.I. for one year each for the offence under Section 148 of I.P.C., one month each under Section 294 of I.P.C. and one year each under Section 379 of I.P.C. The sentences were directed to run concurrently. 2. The present appeal is pending since 21.06.1994. When the matter was taken up for hearing on 03.07.2025, none has appeared on behalf of
Legal Reasoning
the appellants. Therefore, this Court requested Mr. Bijaya Kumar Ragada, 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. Ragada. Page 2 of 19 3. Heard Bijaya Kumar Ragada, learned Amicus Curiae appearing for the appellants and Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel for the State. 4. The prosecution case in terse and brief is that on 17.05.1993, the informant-Hrushikesh Meher being the Forest Official and other staffs were performing night patrolling duty at Pitamahula Mahanadi Ferry Ghat. It is alleged that on 18.05.1993, while they were coming to Pitamahul Mahanadi Ferry Ghat and were 10 to 12 feet away from the ghat, they saw two boats at the ghat and one was loaded with 40 bundles of fire wood. By seeing the informant and other staff, the accused- appellant No.1-Nepal Bariha took away the loaded boat to the other side of the river. It is the case of the prosecution that one hour thereafter, the forest officials found that some persons were coming with forest materials such as 240 numbers of dry bamboo, 43 numbers of Arapati and 30 bundles of fire wood. On seeing them, the forest officials had gone towards that side. At this juncture, the informant and all other officials including Bhagyadhar Chand (P.W.3) found some people coming towards river side in the boat with lathi, tangia, falashi and Page 3 of 19 sword etc. and were shouted to kill P.W.3, the forest guard. Hearing this sound in the boat, P.W.3 persuaded other forest officials to leave the place. As per the prosecution story, there were about fifty people coming in the boat and out of that, around twenty to twenty-five people armed with arms chased the said P.W.3 and others surrounded the other forest officials including the informant. The said persons forcibly obtained some writing from the informant and other officials of the forest department and fled away from the place. It is also alleged that the other persons, who were chasing the forest guard Sri Chand (P.W.3) assaulted him, as a result of which, he fell down on the ground and the accused persons snatched away his wrist watch and goggles. 5. Basing upon such allegation, on the same day i.e. on 18.05.1993, F.I.R. was registered at Birmaharajpur P.S. and after completion of investigation, the police filed charge-sheet against ten accused persons including the present appellants for the alleged commission of the offence punishable under Sections 148/186/333/294/379/149 of I.P.C. Charges were framed and on their stance of denial and claim of trial, they were put to trial. Page 4 of 19 6. The prosecution in order to bring home the charges examined as many as nine witnesses. Out of whom, P.W.1 was the informant whereas P.W.2 was the forest guard of Tribenipur forest section and an eye witness to the occurrence. P.W.3 is the victim/injured of this case. P.W.4 was the doctor, who examined the victim (P.W.3) clinically and granted certificate. P.W.5 was the witness to the seizure whereas P.W.6 was the Ranger of Rairakhol Range and post occurrence witness. P.Ws.7, 8 and 9 are the I.Os. of the case. The defence, in a bid to disprove the prosecution allegations examined three witnesses. 7. The learned trial Court by giving emphasis on the testimony of P.Ws.1 to 4, found the appellants guilty of the charged offences by recording the following reasoning:- “7. P.W.1-Hrusikesh Meher who is the informant in the case has stated in detail in the evidence consistent with the version of the incident as recorded in the F.I.R. (Ext.1) as to how accused Nepal Bariha took the boat loaded with fuel bundles, how they seized the forest materials, how the forest guard Bhagyadhar Chand was assaulted and also abused in indecent words and as to how those persons took a writing that Chand was not with them giving threat to beat him. In cross-examination he has deposed that Chand gave the names of the persons who assaulted him and he Page 5 of 19 mentioned the names of the assailants. This witness states at paragraph 2 of his deposition that he knew 5 to 6 persons in the mob before this incident and others were not known to him. He then states in the same paragraph that he did not mention the names of the accused persons In the F.I.R. and in his statement u/s 161 Cr.P.C. A perusal of the F.I.R. shows that he was mentioned the names of some of the accused persons. On further cross-examination he states that he saw the accused persons for the first time on the day of incident but he did not know their names. He was confronted with the F.I.R. which did not contain the names of Petu, Premananda, and Remesh. He was not able to say why it was omitted from the F.I.R. The witness also has not named accused Sushil Panigrahi in the FIR. He has denied the suggestion put to him that the occurrence had not taken place. He has also denied the suggestion that Chand had not sustained the injuries. P.W.2 is another witness who was with the other forest-officials. He has fully supported the versions given by P.W.1 on the score of assault to Chand and demand of those persons to give a writing that Chand was not with them. He states that he saw accused persons for the first time on that day. The witness admits in paragraph 2 of his deposition that he cannot identify the accused persons if they move at the outside. He admits in the same paragraph that he has not heard the names of the persons involved in the case. He says that he did not disclose the names of the persons in his police statement. The witness then states that he has not seen who assaulted. He is unable to say who gherroaed them and Chand. If the witnesses had identified the assailants and others then they would certainly have given the names of assailants to the police and the names of Petu, Page 6 of 19 Premananda, Ramesh and Sushil would have been mentioned in the report. It appears that even though it was stated in the F.I.R. that the witnesses did not know the other assailants no identification parade was held by the police officers very probably because the witnesses came forward while giving statement to the police that they knew the accused persons. P.W.3- is the victim. He has narrated the entire prosecution story relating to the removal of forest to what materials. The witness then states as particular blows were given by the accused. He states in paragraph one of his deposition that accused Bhutulu caused fracture of his left hand by beating him with lathi. He states in the same paragraph that accused Nepal Bariha gave blows on his right arm. On account of assault his right arm was broken. He then states that other accused persons also gave blows with lathì. The witness states that as he raised hand to ward off the blows, the blows did not fall on his body. The witness has, even gone to the length of identifying the sticks which were allegedly used for beating him. Statements made as well as and omissions were confronted to him and ware brought into evidence during examination of the investigating officer. It will appear from paragraph 4 of the evidence of the I.O. that p.w.3 did not give him the names of Ramesh, Premananda, and Petu. The I.O. had no reason not to write the names of the aforesaid persons as the assailants. The witness admits at paragraph 4 of his deposition that he has not seen accused Sushil Panigrahi at the time of assault on him. It will thus appear that the victim has not named the accused Ramesh, Premananda and Petu as the assailant in his police statement though he has named them in his deposition. Except for this omission in his Page 7 of 19 to his discredit C.D. statement, there is nothing in his cross- examination version. This contradiction as said above alone, regarding the participation of the aforesaid 3 persons in the crime in my view is not sufficient to doubt the participation of other accused persons in the crime and the testimony of the witness cannot be said to be unworthy of belief against the retaining accused. He has been examined by Dr. Pratap Kumar Pani (p.w.4) on the same day at 4 p.m. and the medical expert has found the following injuries: (i) fracture shaft of right humorous with bruise 2” x 1" overmiddle of right arm on lateral aspect and it was grievous in nature. (ii) Bruise of 1”x1"on the medial aspect of left fore-arm 4" above the wrist. He has stated that the injury No.1 was a clear cut Fracture and this could be located by bare eye and palpation. The injuries were fresh and as deposed by p.w.4 could have been caused, by blunt weapon within 12 hours from the time of his examination. P.W.4 has also stated that the patient was also referred to Burla Hospital. In cross-examination he stated that there was no provision for treatment of fractures which needed immediate operations in the hospital. The medical fully corroborates the day and time of the occurrence as well as weapon used. P.Ws.1 and 2 are the forest officials. They have given convincing reasons for their presence on the scene of occurrence at that hour of the day. They have been thoroughly cross- examined. They are named in the F.I.R. as the witnesses fully supported the version given by the victim on the score the occurrence. They have evidence thus to Page 8 of 19 of occurrence. P.W.6 is the Ranger of Rairakhol Range. He states that he was informed that the forest guard Chand was assaulted. He also states that p.w.3 sustained injuries on his body. In cross-examination he says that the injured was in Rairakhol hospital for 3 to 4 days. He is not the actual witness to the incident, but had seen the injured with injuries immediately after the incident. He also came to know injured was from the provides assaulted. This corroboration to the evidence of p.w.3.” the therefore forest officials evidence that 8. The defence version was highlighted by the counsel appearing for the accused persons, which were dealt with by the learned trial Court in the following manner:- “10. It appears that the F.I.R. contains the name of some of the accused persons. To some extent specific overt acts are attributed to accused Nepal Bariha and Bhutulu Bariha. In the present deposition p.w.3 improved his version and stated that in addition to those persons 4 more persons also attacked him, In view of this variation I think it is safe to convict only such of the accused persons who are consistently mentioned as having participated in the attack from the stage of earliest report. The fact that those persons come with weapon and hurled abusive wards, attacked p.w.3 and took away wrist watch and goggles shows that they were members of an unlawful assembly with the common object of committing assault and other offences with which they were charged. Page 9 of 19 11. The learned counsel appearing for the accused persons raised the following points (1) F.I.R. (Ext- 1)is belated(2)1ndependent witnesses not examined (3) witnesses examined are departmental persons. Point No.1-the incidents is said to have taken place on 18.5.93 at about 9.30 a.m. and the matter was reported at the Out Post at 9.30 p.m. on the same day. The place of incident is at a distance of 80 K.Ms. from Subalaya .O.P. P.W.1 has deposed that as the condition of the victim was serious, he brought him to Rairakhol hospital first instead of reporting the incident at the O.P. I find no reasons to discard this explanation. In view of the said facts, the delay in lodging the report cannot be viewed with suspicion. Point No.2- Coming to the 2nd.point, it is urged that independent witnesses were not examined. There is no material to show that villagers came to the spot at the time of occurrence. It was elicited from the witnesses that the day of occurrence was market day. Some villagers were crossing the river by boat. It is not in evidence that they had seen the incident. In these circumstances, non-examination of any outsider would hardly of any consequence and help to the accused persons. Point No.3- The forest officials were present at the spot at the time of occurrence. They were in uniform. How can a stranger be expected to join them. The criticism made by the learned counsel is uncalled for. 12-DW-1 Narayan Sahu is an accused in this case. He has stated that they have been falsely implicated without any reason and denied all the allegations. He being the accused could naturally deny about it. Page 10 of 19 As regards D.w.2-Baba Seth, he admitted in his cross-examination that he had not seen any paper relating to the management of the ghat by the panchayat and his engagement as ghatman. D.W.3- Rameswar Sahu is a licencee of liquor shop at Pitamahul. He has stated that he used to visit his family at Kiakata village once in every month on 30th. According to him he never visited his family members during the intervening period. This is something unnatural. The testimony of d.ws. 1 to 3 does not inspire confidence.” 9. To tackle the aforementioned findings of the learned trial Court which led to the conviction of the present appellants, Mr. Ragada, learned Amicus Curiae has taken me to the evidence of all the witnesses meticulously and try to demonstrate that the findings recorded by the learned trial Court is not the outcome of the appropriate appreciation of the evidence on record, rather it is perverse and dehors record. 10. In the present case, ten accused persons were put to trial. Although in the F.I.R. and the subsequent statement of the witnesses recorded under Section 161 Cr.P.C., it is found mentioned that about fifty people were there; out of them twenty to twenty-five people were armed with the deadly weapons. The learned trial Court convicted only six accused persons those who are the appellants in the present case whereas Page 11 of 19 acquitted four out of ten accused put to trial. The conviction was recorded for the alleged commission of offences punishable under Sections 148/325/294/379/149 of I.P.C. and was substantively sentenced to five years R.I. each apart from the other offences. It is prominently illuminating on record that in the present case, there is no seizure witnesses were examined regarding the seizure of weapon of offences. Even there is no independent witness examined by the prosecution to establish its case and it is also apparent that the incident had taken place on 18.05.1993 at 9.30 A.M. whereas the F.I.R. was registered at the same time though the police station is far away from the place of occurrence. The F.I.R. which was registered at the instance of P.W.1 was only forwarded to the Magistrate on 22.05.1993. None of the I.Os. of the case, namely, P.Ws.7, 8 and 9 have even attempted to explain the delay of four days in forwarding the F.I.R. Though the F.I.R., statement of the witnesses narrates regarding the forest products being taken by the accused persons but nothing is seized from any of the accused persons. P.W.1 in his testimony has deposed as under:- Page 12 of 19 “xxxx xxxxx At ferry ghat in the morning of 18.5.93 we found a boat loaded with wood and accd. Nepal Bariha was present at a distance of 20 cubits from the boat. The boat belonged to accd. Nepal Bariha and we instructed him to bring the boat. He did not bring the boat but managed to go to the other side of the river with that boat. There was a bost at our side and we watched that boat. At that time we found some other persons brought 240 bamboos, 43 Arapati (to be used in carts) and 30 bundles of fire wood. We seized those articles and watched at ferry ghat. The persons who brought those articles escaped from that place. We collected those bamboos, wood etc. and deposited at one place and waited there. At that time 50 to 60 persons armed with badi, thenga, tangia phalsia came towards us in a boat and shouted at the middle of the river pointing to Chand, forest guard. Hearing so, Chand hurriedly ran away. They were shouting saying „Magiha, madarchod chandku hani debu katidebu‟. Those persons came in a boat and when they reached at the middle of the river they shouted at the top of the voice. When they found Chand running away, they moved their boat in that direction and 20 to 25 persons alighted from the boat and ran towards him when the boat reached near the shore and 20 to 25 persons among them came towards us and surrounded. 20 to 25 persons who ran towards Chand assaulted him. After assaulting chand those 20 to 25 persons came to us and they all demanded us to give in writing that Chand was not present with us and we had not seen him. Taking writing from us they left the place in a boat, to the other side…….” Page 13 of 19 From the narration of the facts by P.W.1, it appears that there are three sequential incidents happened on the date of occurrence. Firstly, the appellant No.1-Nepal Bariha was coming towards the ferry ghat in a boat loaded with wood. When he saw the forest officials, he left to the other side of the river. Then, the second incident happened, some other persons carried forest products in a boat were apprehended by the forest staffs. Thirdly, about fifty to sixty persons, out of them twenty to twenty- five persons armed with deadly weapons attacked the forest officials and assaulted Sri Bhagyadhar Chand (P.W.3) and obtained in writing regarding certain demand to be fulfilled. This part of the story is largely found in the F.I.R and on the version of the other witnesses. If the story is to be believed whether the subsequent act by which P.W.3 was assaulted by twenty to twenty-five persons, the appellants were present there or not cannot be ascertained prominently from the evidence. There was no Test Identification Parade carried out by the Investigating Agency to identify the ten accused persons those who were put to trial out of those mob of fifty persons. Page 14 of 19 11. Similarly, P.W.3, the victim, in his testimony has deposed as under:- “When we reached the ferry ghat we saw a boat loaded with wood was there. At the direction of Nepal Bariha one man managed to take the boat to the other side of the river. Some other persons were also present there. Accd. Nepal crossed the stream by swimming. At that time we saw some persons transporting bamboos, wood etc. At our sight they threw those articles and ran away. We collected those forest materials and while stacking the same by the side of the stream, we saw 50 to 60 persons coming in a boat from Jagti village side. While they were coming in a boat being armed with badi, thenga and reached near the shore, and they started shouting saying SALA MAGIHA CHAND TUTE HANI DEBU PANIRE BHIKIDEBU, Hearing so I instructed the other staff to leave the place As they refused I hurriedly ran away 20 to 25 persons among them chased me holding lathi and they could manage to apprehend me? Furlongs away and assaulted me. I sustained cut injury on right arm and fracture on my left hand. I sustained injury on my leg also. While assaulting accd. Bhutuli Bariha snatched away my wrist watch from my hand. I sustained fracture on my left hand due to assault by accd. Bhutuli with lathi, Some one also took away the goggles. Accd. Nepal Bariha assaulted on my right arm saying SALA MAGIHA TUMARLAGI MU AI GHATA CHADILI with Thenga. The bone of my right arm was broken (disconnected from other portion) Others also assaulted me with lathi.” Page 15 of 19 12. P.W.3 in his entire testimony has not taken the name of the appellants except appellant Nos.1 and 2. Even nothing is imputed against the appellant No.2 regarding the assault except stating that he has snatched his wrist watch. It is only against the appellant No.1 overt act has been attributed by the said witness regarding the assault. 13. P.W.4 was the doctor, who examined the injured-P.W.3 and opined that the injured had received two injuries namely:- (1) Fracture shaft of right humerous with bruise 2” x 1” over middle of right arm on lateral aspect and it was grievous in nature caused by hard and blunt weapon. (2) Bruise of size 1” x 1” on the medical aspect of left fore-arm 4” above the wrist caused by hard and blunt weapon. The said witness (P.W.4) has also stated that the age of injury may be twelve hours. The injury No.1 was a clear cut fracture and this could be located by bare eye and pulpation. As there was a fracture, the patient was referred to Burla Medical College. In his entire evidence, he has not indicated the nature of injury as to whether the injuries are simple or grievous. Page 16 of 19 14. P.W.6 is a hear-se witness. He deposed that he came to know that the injured-Bhagyadhar Chand (P.W.3) was assaulted by the villagers of Jagti village in the side of river stream at Pitamahul ferry ghat. The said witness has not named any of the accused persons. 15. P.W.8 is the Investigating Officer of this case. The said witness in his cross-examination has very categorically stated as under:- “Pitamahul ferry ghat is at a distance of 12 kms. from Subalaya O.P. This distance can be covered by 1 ½ hours by walking and one hour by cycle. I received the report at 9.30 P.M. I have not mentioned the names of the assailants in the injury requisition. I have not seized the bed-head ticket. I did not prepare any spot map. P.W.3 has not given the names of accd. Ramesh Sethi, Premananda Bariha and Petu Sethi in the police statement. P.W.3 has not assigned any specific role to accd. Nepal Bariha. I have not mentioned „hand‟ although I stated „Dahana‟. P.W.3 has stated before me that his right hand was fractured. It is not a fact that he has not stated so in his police statement. P.W.3 has not stated to me that the watch belonged to his son.” Inadvertently From the evidence of P.W.8, the Investigating Officer, it is evident that P.W.3, the injured has not assigned any specific role to even the appellant No.1 in his earlier statement before police. Hence, it is Page 17 of 19 apparent that P.W.3 has improvised his evidence so as to implicate the appellant No.1. 16. P.W.9, the O.I.C. of the Birmaharajpur Police Station in his testimony has admitted that no T.I. Parade was conducted. In precise, he has stated as under:- “No T.I. parade was held. I have not seized any other paper relating to treatment of P.W.3at any other place except Rairakhol. The Ranger told me that the officials were on duty as per his verbal order. The articles M.O.I, III and IV are commonly available in the village.” 17. From the conjoint reading of all the evidence, it is emanating from the record that about fifty people have participated in the overt act, out of them twenty to twenty-five villagers were armed with weapons. In the absence of any T.I. parade being conducted, selectively picking the villagers and putting them to trial is creating a serious doubt regarding the conduct of the prosecuting agency. When the evidences of the witnesses particularly the evidence of P.W.3 is evaluated, it is clear that P.W.3 has also not taken the name of any of the accused persons except appellant Nos.1 and 2. No specific allegation is made against the Page 18 of 19 appellant No.2 regarding any assault. Although against the appellant No.1, P.W.3 has made specific allegation but P.W.8 in his cross- examination has stated that P.W.3 in his statement before the police under Section 161 Cr.P.C. has not taken the name of the appellant No.1. The evidence regarding the overt act attributed to the appellants appears to be dicey and tainted. The prosecution has not come out with a case with clarity regarding the specific involvement of any of the appellants. In view of the poor projection of the prosecution story and incomplete chain of event, it may not be safe for this Court to affirm the judgment of the learned trial Court, whereby the appellants are convicted. Therefore, by extending the benefit of doubts, the appellants are acquitted of all the charges under Sections 148/325/294/379/149 of I.P.C. The bail bonds furnished by them stand discharged. The judgment and order dated 31.05.1994 passed by the Additional Sessions Judge, Balangir is set aside.
Decision
18. Accordingly, the CRA is allowed and disposed of. Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 26-Sep-2025 15:53:30 The High Court of Orissa, Cuttack. Dated the 25th September, 2025/ Swarna Page 19 of 19 (S.S. Mishra) Judge