The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.154 of 1995 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Nabin Chandra @ Kumar Das and another ……. Appellants -Versus- State of Odisha ……. Respondent For the Appellants : Mr. Sarata Kumar Behera, Amicus Curiae For the Respondent : Ms. Subhalaxmi Devi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 16.10.2025 :: Date of Judgment: 28.10.2025 S.S. Mishra, J. The two of the convicts-accused namely Nabin Chandra @ Kumar Das and Surya Das have combinedly filed the present appeal challenging the judgment and order dated 12.05.1995 passed by the learned Special Judge-cum-Sessions Judge, Koraput, Jeypore, Camp at Gunupur in Sessions Case No.89 of 1994, whereby the learned trial Court while acquitting the co-accused, namely, Simanchal Parichha of all the charges by extending the benefit of doubts, convicted the present appellants for offences under Sections 341/323/34 of I.P.C. read with Section 3(1)(x) of the SC & ST (PoA) Act. They were sentenced to undergo S.I. for six months for the offence under Section 3(1)(x) of the SC & ST (PoA) Act read with Section 34 of I.P.C., in default, to undergo S.I. for four months for the offence under Section 323 read with Section 34 of I.P.C. and S.I. for one month for the offence under Section 341/34 of I.P.C. 2. Vide order dated 01.07.2025, learned counsel for the State was directed to obtain instruction regarding the wellbeing and status of the appellants. Pursuant thereto, the I.I.C., Padmapur Police Station has submitted a report dated 03.08.2025 inter alia stating that both the appellants are alive. When they were informed regarding the pendency of the appeal, they expressed unwillingness to prosecute the same.
Legal Reasoning
Confronted with this situation, this Court requested the learned counsel Page 2 of 15 for the appellants to argue the matter in the capacity of Amicus Curiae, to which, Mr. Sarat Kumar Behera, learned counsel has agreed and has rendered assistance to this Court. 3. Heard Mr. Sarat Kumar Behera, learned Amicus Curiae for the appellants and Ms. Subhalaxmi Devi, learned Additional Standing Counsel for the State. 4. The prosecution case in terse and brief is that the accused persons, who do not belong to the Scheduled Caste or Scheduled Tribe communities, had, prior to the incident, prevented the victim, a member of a Scheduled Tribe, from drawing water from a public well. On the date of the incident, i.e. on 20.09.1993, at about 7:00 a.m., while the victim was drawing water from the said well, the accused-Nabin (appellant No.1) approached him and stated, "Tome Magyan Dombo Manoku Kohila Sote Kuonku Asi Gadhuucho. Following this, the accused-Nabin is said to have pushed the victim, causing him to fall. At that moment, the co-accused Simanchal reportedly arrived at the scene, shouting, "MARO, MARO". As the victim attempted to flee towards his house, he was allegedly intercepted and restrained by accused Surjya Page 3 of 15 Das (appellant No.2). Thereafter, all three accused persons are said to have jointly assaulted the victim, causing him to lose consciousness. Thereafter, the victim’s father, Dhanurjaya Bidika (P.W.1), who was passing by to his field, witnessed the assault and attempted to intervene. It is alleged that the accused persons then verbally abused him, and the appellant No.1 inflicted a bleeding injury on his hand using a katti (a sharp weapon). On the basis of the aforesaid allegation, Padampur P.S. Case No.23(2) of 1993 was registered and after completion of investigation, charge sheet was submitted against the accused persons under Sections 294/341/323/324/506/34 of I.P.C. read with section 3(1)(x) of the SC & ST (PoA) Act. Charges were framed and on the stance of denial and claim of trial, the appellants were put to trial. 5. The prosecution in order to bring home charges examined seven witnesses. Out of whom, P.W.1 is the informant and father of the victim, P.W.2 was an eye witness to the occurrence, P.W.3 was the alleged seizure witness, who was declared hostile by the prosecution. P.W.4 was also an eye witness to the occurrence. P.W.5 is the victim in the present Page 4 of 15 case. P.W.6, the then Officer-in-Charge of Padampur Police Station, who investigated the case and submitted charge-sheet. P.W.7 was the doctor, who examined the injured P.Ws.1 and 5 on police requisition. 6. The learned trial Court after analyzing the evidence brought on record by the prosecution and by considering the defence plea in particular has arrived at the following conclusion:- “8. On a careful scrutiny, evidence of P.Ws.1,2,4 and 5, it is clear that the accused persons have abused them as P.W.5 wanted to take bath in the well and the accused persons asked them not to take water from the well as they were Harijans. From their evidence it also reveals that P.W.1 was assaulted under the banian tree near the well. With regard to the assault on P.W.1 I find that although he states that accused Nabin while going to assault him with kati he warded off the blow and the kati hit his hand P.Ws.2 and 4 are silent about it and only speak that they saw bleeding injury in the hand of the P.W.1. The doctor P.W.7 also find lacerated injury near root of thumb of size 1" x 2" x 1/8" with regular margin of P.W.1. According to him the injury is simple in nature and might have been caused by sharp cutting weapon. He has proved the injury report, Ext. 1/1. He also opines that this injury can be caused by Kati, M.Ο.Ι. He has also found one bruise on left side chest near second rib of size 1" x 1/2" in the person of P.W.5 which is simple in nature and might have been caused by hard and blunt object like fist blow and blow by elbow. He has proved the injury report, Ext.5/1. In the cross Page 5 of 15 examination also he opines that the injury on P.W.1 can be caused by Tussale over the Kati, M.O.I and the injury in P.W.5 can be caused by fall, P.W.7 has also stated that P.W.5 was complaining pain on his chest and back. 9. The plea of the defence is that at the time of alleged occurrence accused Surjya was assaulted by P.W.1 and 5 and when accused Nabino went there he was assaulted by them also. According to the defence plea Ratana the sister of accused Nabin and Surjya along with other girls had been to the well where P.W.5 was present and passed some indecent comments on her. Hearing about this, accused Surjyo went there and asked P.W.5 about it. Without replying anything he went away and came back along with P.W.1 and his brother and they all assaulted accused Surjyo and accused Nabino who was distributing Prasad at the Ganesh Puja place came there to rescue his brother, Surjyo and he was also assaulted. Both P.Ws.1, and 2 were examined to prove this plea of the accused persons. P.W.1 states that the occurrence took place in Ganesh Puja day. In their street they were worshipping Lord Ganesh keeping his Idol. At 7 a.m. he had been to the well of the village to fetch water along with Parvati and Ratna. P.W.5 followed them and stayed at the well he teased Ratana, asked her to come to their field side at evening. Hearing this Ratana wept. They asked P.W.5 as to why he was telling like this to a girl. Hearing their conversation male persons of their village came there and before them they disclosed the incident. Thereafter P.W.5 went away to his house. After half an hour P.W.5 along with his family members came to that well and P.Ws.1 and 5 and the brother of P.W.5 assaulted accused Nabino and Surjyao D.W.2 deposes that after Page 6 of 15 worshipping Lord Ganesh he stood there with accused "Nabino @ Majhi and "Surjya. The well is about 25 cubits apart from that place. About the occurrence he has identically narrated implicating P.Ws.1 and 5 in assaulting accused Nabino and Suriya. Although according to the defence the trouble started as P.W.5 made some comments at Ratna, the sister of accused Nabin and Surjya. Said Ratna has not been examined in this case. The evidence of D.Ws. 1, and 2 with regard to the occurrence is also not identical to the plea taken by the accused persons in their statement under Section 313 Cr.P.C., i.e., when the plea of the accused is that accused Surjya first went to the well before whom Ratana narrated the incident and he challenged P.W.5 and was assaulted by P.Ws.1 and his brother. Seeing this accused Nabina went there to rescue his brother and he was also assaulted. Both D.Ws. 1 and 2 state that both accused Nabin and Surjya and D. W.2 and other came at a time to the well and both of them were assaulted simultaneously by P.Ws.1 and 5. In these circumstances, I find that the occurrence as narrated by the defence is, therefore, not true and cannot be accepted. 10. I have earlier indicated that there are some contradictions with regard to the occurrence as narrated in the F.I.R. and to that of the version of P.W.1 and 5 in the evidence with regard to dealt of lathi blows. It appears to me that P.Ws.1, 2 and 4 have exaggerated the occurrence by deposing that the hands and legs of P.W.5 were tied when he was being assaulted. Similarly P.W.1 has also exaggerated the occurrence in the F.I.R. On a careful scrutiny of the evidence of P.W.5 I find that his evidence is cogent, trustworthy and acceptable. I do not find any material Page 7 of 15 contradictions in his evidence to discredit his sworn testimony. His finds general evidence also corroboration in the evidence of P.Ws. 1, 2 and 4. It is true that P.W.5 has categorically stated that he was not abused under the banian tree but P.Ws.1,2 and 4 have stated that the accused persons abused in filthy language imputing their caste under the banian tree where P.W.1 was being, assaulted. It may be a fact that since P.W.1 was assaulted he might not have mindful to the utterances of the accused persons.” On the strength of the aforementioned analysis of the evidence, the learned trial Court found the appellants guilty of the charges under Sections 323/341 of I.P.C. and Section 3(1)(x) of SC & ST (PoA) Act read with Section 34 of I.P.C. and on each count, sentences have been awarded. 7. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Special Judge-cum-Sessions Judge, Koraput, Jeypore, the present appeal has been preferred by the appellants. 8. Initially the three accused persons were charge-sheeted for the offences as mentioned. Out of three accused persons, one Simanchal Parichha has been acquitted by the learned trial Court by not believing Page 8 of 15 the version of P.Ws.1 and 5. However, relying upon the same set of evidences, the learned trial Court has convicted the present appellants. 9. In the present case, P.W.5 is the victim. P.W.5 in his testimony has stated as under:- “xxx xxx While I was drawing water from the well, accused Nabin came there and told “Tome Magyan Dombo Mananku Kahila Satwe Madhya kuanku Ashi Gadhauchha‟. So saying he gave a push to my chest as a result of which I fell down. In the meantime accused Simanchal came running from a nearby straw heap shouting „Maro‟, Maro‟. While hearing the shout of accused Simanchal I tried to escape by running to my house, on the way under the Banian tree accused Surjya Das caught hold of me. Then accused Nabin and Simanchal came there and all the three felled me down. Accused Nabin pressing his knee on my abdomen dealt blows by means of his fist and blow on my chest. At that time the other two accused persons had caught in my arms. I shouted „Mari Gali‟, Mari Gali‟. In the meantime P.W.1 came to the spot. Immediately thereafter I lost senses. P.W.5 has made a specific attribution and overt act against all the three accused persons. He has also stated that the appellant No.1 has abused him by taking his name of caste, as a result of which, he felt demeaned. Page 9 of 15 10. P.W.1, the father of the victim in his testimony has stated as under:- “2. My son Chandra Sekhar Bidika went to the Government well to take his bath and after him I was proceeding to my paddy land and I found that under a banian tree near that well my son was lying on the ground having his legs and hands tied and accused Nabin was standing on his abdomen and dealing fist blows while the other two accused persons were pressing his hands and legs and accused Nabin was shouting “Dambo Magyan, Kuan Chhuini Deikari Gadhai Pakauchi, Tote Aji Sesha Karibi.” My son was also shouting „Mari Gali, Mari Gali‟ hearing which I rushed to him. While I reached at the spot none else was there and persons came afterwards. I appealed accused- Nabin Das with folded hands to leave my son. At that time one Budu of my village came to the spot. Budu has got a good name which I do not remember, without listening to my appeal accused Nabin raised a Kati to assault me. I warded off that Kati which hit my left hand in between thumb and index finger. I snatched away the Kati from Nabin and threw it which fell at a short distance from the spot. Then accused Nabin abused me saying “Magyan Dombo Mane, Kuan Ku Chhuncha, Tomo Sahire Nia Mari mari Tumoku Gaonru Ghaudei Debu”. Subash also came to the spot and we all lifted the injured to my Pinda where he vomited blood. Then we carried him to Padampur Hospital. Budu is known as Chandradhwaja Palaka.” Page 10 of 15 11. In the cross-examination, P.W.1 has stated that he is not a Christian rather he is Hindu and denied the suggestion that he is a Catholic Christian. Similar question was also put to the victim regarding his caste. 12. P.W.6, the I.O. of the case in his cross-examination has stated as under:- “11. I have not seized any document with regard to the caste of P.W.1 and his son. They are Hindus and not Christians. I have not investigated with regard to ownership of M.O.I.” 13. In regard to the proof of the caste of the victim, except the oral version of the victim himself, no other documentary evidence or any other corroborative evidence has been brought on record. Under the SC & ST (PoA) Act, it is obligatory on the part of the prosecution to establish the caste of the victim to be either Scheduled Caste or Scheduled Tribe. This position is settled in the case of Ajay Kumar Singh vrs. State of Orissa, reported in 2025(III)ILR-CUT-383.The prosecution apparently has not made any attempt to prove beyond all reasonable doubt that the victim belongs to either Scheduled Caste or Page 11 of 15 Scheduled Tribe. That being the nature of evidence, it would not be safe for sustaining the conviction recorded by the learned trial Court in so far as the offence under the SC & ST (PoA) Act is concerned. Hence, the appellants are acquitted of the charge under Section 3(1)(x) of SC & ST (PoA) Act. However, reading of the evidence of P.W.7, the doctor makes it clear that the victim has sustained the following injuries:- “1. On 20-9-93 I was Medical Officer, Padampur P.I.C. On that day on police requisition I examined Dhanunjaya Bidika and found one lacerated injury near root of left thumb of size 1/2” x 1/4'” x 1/8” with regular margin, simple in nature and might have been caused by sharp cutting weapon. Age of the injury at the time of my examination is within 2 to 4 hours. I examined him at 10.15 a.m. The injury can be caused by M.O.I. This is my injury report-Exyt.4/1. This is my signature-Ext.4/2. 2. On the same day on police requisition, I examined the victim and found one bruise on left side chest near second rib of size 1” x ½”, simple in nature, might have been caused by hard and blunt object like fist blow or blow by elbow. Age of the injury is within 2 to 6 hours at the time of my examination i.e. at 10 a.m. He was complaining of pain on his chest and back. This is the injury report-Ext.5/1 and this is my signature-Ext.5/2.” Page 12 of 15 The injury report is also exhibited as Exts.4 and 5. The prosecution in that regard has sufficiently brought on record the evidence to establish that the appellants have hurt the victim and the informant. The injury sustained by the victim is simple in nature. The learned trial Court has rightly convicted the appellants for the offence under Section 323 of I.P.C. Hence, I am inclined to affirm the conviction recorded by the learned trial Court for the offences under Sections 323/341/34 of I.P.C. 14. At this stage, Mr. Behera, learned Amicus Curiae appearing for the appellants submitted that in the present case, the appellants have already suffered twenty days custody. He further submitted that the incident relates back to the year 1995. At that point of time, the appellant No.1 was 25 years of age whereas appellant No.2 was 22 years. Therefore, at present the appellants must be in their fifties. They have no criminal antecedents and no other case of a similar nature or otherwise is stated to be pending against them. Over the years, they have led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating them after such a long delay, it is Page 13 of 15 argued, would serve little penological purpose and may in fact be counter-productive, casting a needless stigma not only upon them but also upon their family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, he submitted that the sentence imposed against the appellants may be modified. 15. The submission made by the learned counsel for the appellants deserves merit. Accordingly, while affirming the conviction recorded by the learned trial Court against the appellants for the offences under Sections 341/323/34 of I.P.C., I modify the sentence to that of the sentence the appellants have already undergone. However, in the fitness of the circumstances and to meet ends of justice, I feel it appropriate, to impose a fine of Rs.3,000/- (rupees three thousand) each, in default of which the appellants shall undergo S.I. for fifteen days. The fine amount shall be paid to the victim as per the procedure established under Section 357 Cr.P.C. 16. Accordingly, the CRA is partly allowed. Page 14 of 15 17. This Court acknowledges the effective and meaningful assistance rendered by Mr. Sarat Kumar Behera, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 28th October, 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 29-Oct-2025 18:46:54 Page 15 of 15