The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.286 of 1996 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Noor Mohammed Khan & another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Satyabrata Mohanty (1), Amicus Curiae For the Respondent : Mrs. Sarita Maharana, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 12.08.2025 :: Date of Judgment: 19.08.2025 S.S. Mishra, J. The appellants Noor Mohammad Khan and Gul Mohammad Khan have jointly assailed the judgment of conviction and order of sentence dated 07.09.1996 passed by the learned Sessions Judge-cum-Special Judge, Koraput, Jeypore in Sessions Case No.165 of 1995, whereby both the appellants were convicted for the offence punishable under Section 324/34 of the IPC for causing hurt to P.Ws. 2 and 3. However, they were acquitted of the charges under Sections 341/307/34 of the IPC and Section 3(1)(x) of the SC & ST (PoA) Act. On the count of their conviction, they were sentenced to undergo R.I. for six months. 2. Due to consistent absence of the learned counsel for the
Legal Reasoning
Advocate has been appointed as Amicus Curiae to assist this Court in the matter. He has appeared and argued the matter at length. 3. Heard Mrs. Sarita Maharana, learned Additional Standing Counsel appearing for the Respondent-State. 4. The prosecution case in terse and brief is that on 14.11.1994, in the afternoon at about 5 P.M., when the informant Tularam Harijan and Bhimasingh Lal were returning from Bamuni village, at that time, the appellant no.2- Gul Mohammad, seeing them, suddenly assaulted Bhimasingh Lal with fist blows and slaps and put him on the ground. Tularam intervened and he was also assaulted with fist blows and slaps. They returned to the village. When they reached the village at about 6 Page 2 of 12 P.M., appellant no.1-accused Noor Mohammad seeing him, assaulted Tularam by means of a Tangi. At that time, accused Gul Mohammad caught hold of Tularam and accused Noor Mohammad inflicted injury on his neck by the Tangi for which Tularam sustained cut injury. Nilakantha Singh Lal came to their rescue and accused Noor Mohammad inflicted injury on him as well by a shaving blade. Ghasi Harijan snatched away the Tangi from Noor Mohammad and gave it in the custody of one Hussain Khan. The F.I.R. was registered on the basis of the aforementioned allegations. The investigation was carried on and the charge sheet was filed. 5. The appellants took a stance of complete denial and claimed to face the trial for the offences punishable under Sections 341/307/324/34 of the IPC r/w Section 3(2)(v) and Section 3(1)(x) of the S.C. & S.T. (PoA) Act. 6. Learned trial Court, by taking into consideration the defence plea as well as the prosecution evidence, recorded as follows: “16. I have already mentioned the depositions of all the witnesses in detail. No major lacuna is found in their evidence to disbelieve their version. As regards the incident on the way Page 3 of 12 which culminated in the incident of the village, it is the specific plea of the defence that both P.Ws.1 and 3 were drunk and in a drunken state fell on ‘Bisara’ and sustained injuries. Few hours after this incident, P.W.3 was examined by the doctor on police requisition. Neither the I.O. has mentioned in his requisition that P.W.3 was found drunk nor the Doctor while examining him found him drunk or smell of alcohol coming out of his mouth. So their taking liquor and in a drunken state falling on the way cannot be believed. That apart, no suggestion has been given to the Doctor that injuries found on P.W.3 is possible by falling over ‘Bisara’. Coming to the incident of the village, P.Ws. 2, 3 and 4 have clearly stated that near the house of Ghasi Harijan these accused persons assaulted P.W.3 for which he fell down and then Gul pressed him to the ground and accused Noor rubbed the edge of the Tangi on his neck in order to cut it causing linear cut injury. There are some discrepancies in the evidence of the witnesses as to how accused Gul was holding Tularam and sitting in what position accused Noor was applying the Tangi on his neck. These discrepancies can be ignored because they deposed after one and half years of the incident and after such a long lapse of time, it is not expected that they would remember the incident with a photographic memory. It is the specific case of the prosecution that the Tangi was snatched away from Noor and handed over to Gulam Hussain Khan (D.W.2). This D.W.2 is the brother of the accused persons and he has deposed in support of the defence case. The I.O. (P.W.7) states that the Tangi- M.O.I was seized from D.W.2. D.W.2 admits seizure of the Tangi but claims that it is his own Tangi. No suggestion has been given to P.W.4 that Tangi was not handed over to D.W.2- Gulam Hussain. No suggestion has also been given to any P.W. that the said Tangi belongs to D.W.2. Even if it is believed that the said Tangi belongs to D.W.2, it does not help the defence in any manner because he is the brother of the accused persons and accused Noor might have brought this Tangi belonging to D.W.2 while assaulting P.W.3. Page 4 of 12 17. P.Ws. 2 and 3 both have sustained injuries. Scar marks are visible. P.W.2 got the injuries by a razor blade and P.W.3 by a Tangi. No explanation has been given by the defence regarding their sustaining such injuries. Thus I find that it is the accused persons who inflicted the injuries found on P.Ws. 2 and 3. 18. Coming to the defence case, I find that the I.O. has admitted about accused Gul lodging F.I.R. about the incident of 14-11-94 at 6 p.m. and accused Noor and his mother Mariam getting medically examined. The certified copies of the F.I.R. (Ext.A) and Injury Reports (Exts. B & C) have been proved. But even if this incident is believed, it cannot cast any doubt regarding the present occurrence as alleged by the prosecution. Either due to assault on P.Ws. 2 and 3 this incident might have occurred or after the occurrence of this alleged incident (regarding assault on Noor and Mariam) the present occurrence might have occurred. 19. Coming to the question of offence committed by the accused persons, I find that the accused persons cut the neck of Tularam Harijan, a Scheduled Caste member (Harijan are Scheduled Caste people) in furtherance of their common intention. As the evidence reveals the edge of the tangi was rubbed on the neck several times. That shows that they had no intention to kill Tularam. The other injured Nilakantha was inflicted injuries on his back and chest by razor blade due to which simple injuries have been caused. So for the assault on P.Ws. 2 & 3 both the accused persons are liable for committing the offence punishable under Section 324 read with Section 34 I.P.C. As regards the other Sections under which the accused persons are charged, there is no convincing evidence to hold them guilty thereunder.” Page 5 of 12 7. Being aggrieved by the findings returned by the learned trial Court, which culminated into the conviction of the appellants as mentioned above, the appellants have filed the present Criminal Appeal. 8. Mr. Mohanty, learned Amicus Curiae appearing for the appellants submitted that, in fact, the appellants have first registered the F.I.R. at 6 P.M. on 14.11.1994 regarding the occurrence. Subsequent thereto, Tularam Harijan, P.W.3 lodged the F.I.R. at 8 P.M. on the same day. The prior F.I.R. registered by the appellants has not been investigated. However, the F.I.R. registered by P.W.3 has been investigated and the charge sheet was filed leading to the impugned order. Mr. Mohanty, learned Amicus Curiae by taking me to paragraph-18 of the impugned judgment as mentioned above, has pointed out that the learned trial Court has duly noticed this aspect of the matter. He has also submitted that the F.I.R. registered by the appellants pertaining to the same incident has been exhibited as Ext.A. He has pointed out that the appellants have also sustained injuries at the same incident. P.Ws. 1, 2, 3 and their gang were the aggressors those who have attacked the appellants. In retaliation Page 6 of 12 to the attack made on the appellants, the appellants have also appeared to have assaulted the prosecution witnesses. He has taken me to the statement of the accused recorded under Section 313 of the Cr. P.C., particularly the last question i.e. Question No.23 put to the accused. In answer to the query, both the appellants have succinctly narrated the incident and have also stated that regarding the same incident, they had filed an F.I.R., which has not been investigated by the police. The appellants have also led the defence evidence. They have placed on record the certified copy of the F.I.R. registered by them as Ext.A and the certified copy of the injury report sustained by the appellant no.2 as Ext.B and the mother of the appellant Ext.C has also been brought on record. 9. Mr. Mohanty, learned Amicus Curiae has taken me to the evidence of P.W.7. In paragraph-5 of the cross-examination, P.W.7 has stated as under:- “Accused Gul Mohammad Khan lodged F.I.R. on 15-11-94 at 6.30 p.m. alleging that Neelakantha and Tularam abused him, assaulted him and his mother. Ext.A is the certified copy of the F.I.R. Accused Gul and his mother Merina Bibi Page 7 of 12 were medically examined on police requisition. Exts. B and C are the certified copies of injury reports.” 10. Mr. Mohanty, learned Amicus Curiae further submitted that the injuries sustained by appellant no.2 and his mother have not been explained by the prosecution. The prosecution witnesses have also not made any whisper about such injury sustained by the appellants in the same incident. Therefore, he submitted that the witnesses have not deposed the true fact. Hence, the trustworthiness of the evidence of all the prosecution witnesses is in doubt. On the basis of such evidence, the appellants cannot be convicted. 11. To counter the submission made by Mr. Mohanty, learned Amicus Curiae, Mrs. Sarita Maharana, learned Additional Standing Counsel for the State has taken me to the evidence of P.W.1, Bhimasingh Lal, the injured witness, P.W.2 Nilakantha Singh Lal, another injured witness, P.W.7 Tularam Harijan, the informant of the case and P.W.4, the eye witness to the occurrence. All of them in unison have deposed the account of the incident without any variation. The witnesses have also sustained extensive cross-examination. However, they have not shaken Page 8 of 12 in that front. Mrs. Maharana, learned State counsel further submitted that, if the evidence of all the witnesses are read together vis-à-vis the evidence of P.W.8, it is emanately clear that the findings recorded by the learned trial Court is an outcome of the right appreciation of the evidence. 12. P.W.8 was the doctor, who had examined the injured witnesses and as per his evidence, it is clear that all the injured witnesses have sustained simple injury. This has also prominently come on record that, pertaining to the same incident, a prior F.I.R. was registered by the appellants at 6.30 A.M., which has not been investigated. It is also true that the appellant no.2 and his mother have sustained injuries in the same incident, which has not been explained by the prosecution. 13. Mr. Mohanty, learned Amicus Curiae for the appellants, has strenuously argued that the trial court has failed to appreciate the serious lapse of the prosecution in not explaining the injuries to the accused persons. Reliance has been placed on the judgment of the Hon’ble Supreme Court in Lakshmi Singh v. State of Bihar, reported in (1976) 4 SCC 394, wherein it has been held that non-explanation of injuries Page 9 of 12 sustained by the accused at the time of the occurrence or during the altercation is a very important circumstance from which the court can infer that the prosecution has suppressed the genesis and origin of the occurrence. 14. Further reliance was placed on the Division Bench decision of this Court in Krishna Padhi and Others v. State of Orissa, reported in (1992) 5 OCR 529, wherein it has been held that non-explanation of injuries assumes greater importance when the witnesses are inimical and the defence version is more probable. It is submitted that in the present case, the evidence of P.W.11, on which conviction was based, was itself shaky and suffered from exaggeration and lack of corroboration, thus not fitting into the category of wholly reliable evidence as contemplated in Veli Thevar v. State of Madras, reported in AIR 1957 SC 614. 15. Taking into consideration the submissions made by learned counsels for both the parties and on the basis of the evidence on record, I am of the considered view that the offences under Sections 324 of the IPC is not made out against the appellants. However, the offence under Section 323 of the IPC against the appellants is made out. The appellants Page 10 of 12 were arrested on 16.11.1994 and were enlarged on bail on 13.12.1994. Therefore, both the appellants have already undergone custody for about one month. The appellant no.1 was 28 years and appellant no.2 was 26 years at the time of the incident i.e. in the year 1994. At present the appellant no.1 would be about 59 years and the appellant no.2 would be about 57 years old. 16. Mr. Mohanty, learned Amicus Curiae submitted that keeping in view the age and fact that presently the appellants are well settled in the society, they are entitled to the benefit of Probation of Offenders Act. 17. Considering the entire features of the case, I could have given the treatment of Probation of Offenders Act to the appellants. However, since Mr. Mohanty, learned Amicus Curiae has brought to my notice that the appellants have already undergone incarceration for a period of one month, which has not been disputed by the learned counsel for the State, injustice would be compounded, if I would now grant the appellants the treatment under the P.O. Act. I would therefore, while maintaining the conviction, reduce the period of sentence to that of the period the appellants have already undergone. Page 11 of 12 18. This Court records appreciation for the effective and meaningful assistance rendered by Mr. Satyabrata Mohanty (1), learned Amicus Curiae. He is entitled to the honourarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid. 19. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 19th August, 2025 / Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 19-Aug-2025 19:36:36 Page 12 of 12
Arguments
appellants, vide order dated 03.07.2025, Mr. Satyabrata Mohanty (1),