The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.4 of 1996 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Ghata Das and others ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Mohammad Faradish, Amicus Curiae For the Respondent : Ms. Subhalaxmi Devi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 29.07.2025 :: Date of Judgment: 19.08.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants under Sections 374 of the Cr. P.C., is directed against the judgment and order dated 18.12.1995 passed by the learned 1st Additional Sessions Judge, Berhampur in S.C. No.29 of 1994 (S.C. No.153/94 G.D.C.) arising out of G.R. Case No.922 of 1991, whereby the learned trial Court convicted the accused-appellants for the offences punishable under Sections 148/323/149 of I.P.C. and, accordingly, sentenced them to undergo R.I. for one year for the offence under Section 148 of I.P.C. and for a period of six months each for the offence under Section 323/149 of I.P.C. and both the sentences are directed to be run concurrently. 2. The present appeal is pending since 02.01.1996. When the matter was taken up for hearing, none has appeared on behalf of the appellants.
Legal Reasoning
Therefore, this Court requested Mr. Mohammad Faradish, 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. Faradish, learned Amicus Curiae. 3. Heard Mr. Mohammad Faradish, 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, on 22.10.1991, the informant- Krushna Das (P.W.1) lodged a written report before the Gopalpur P.S. inter alia alleging therein that since last three years, there Page 2 of 13 was party faction in the village. People of 10 houses are in his party known as “small party” and rest are in the other party known as the “big party”. It is alleged that during Dasahara festival, the people of “big party” worshipped the deity and sacrificed animals like goat and sheep and on the date of occurrence, they locked the temple and left the place at about 3.00 P.M. It is also alleged that the members of the “small party” also went to the temple to worship and sacrificed cocks before the deity. One Khetra Das, who belonged to the big party, had two wives namely Kamala and Indu; and Gita is the daughter of Kamala, who is staying separately from her husband and belongs to the small party. On 22.10.1991, in the evening, there was a quarrel between Gita and her mother Kamala. At that time, the accused-appellant No.2-Daya Das enquired about such scolding and abused Kamala. It is further alleged that at about 8.00 P.M., all the appellants came with lathis, stones and katis in their hand. Kamala came to the house of the informant but the accused persons shouted and hurled abuses. When the informant (P.W.1) tried to explain the matter and subside the quarrel, suddenly, the appellant No.3-Babu Das dealt with lathi blow on his head and the Page 3 of 13 appellant No.1-Ghata Das gave a stroke with a kati fitted with bamboo handle to the left eyebrow of the informant, as a result of which, he sustained bleeding injuries on his eye and head. Thereafter, the appellant No.4-Bhima Das dealt lathi blow on his right hand and the informant fell down on the ground. After sometime, the wife of the informant arrived at the spot and dragged him into the house. The water was given to the informant, who regained his sense and came to the Ice Factory to approach Gena Babu to contact the police by telephone. As the police could not be contacted, he came to the police station and gave the oral report. Hence, the F.I.R. 5. The prosecution in order to bring home the charges against the accused persons examined as many as six witnesses. Out of whom, P.W.1 was the informant and injured, P.W.2 was an eye witness to the occurrence. P.W.3-Budhia Das was a witness, who had seen the assault of the injured (P.W.1), P.W.4-Bibi Das, is the son of the informant. P.W.5-Bhagaban Padhi, was the I.O. of the case, who received the report from P.W.1 and took up investigation. P.W.6-Dr. Manoranjan Das was the Medical Officer, who examined P.Ws.1, 2, 3 and 4 and one Jagili Page 4 of 13 Das on police requisition. The accused persons took a stance of denial and claimed trial. Therefore, they were put to trial. 6. The learned trial Court by taking into consideration the entire evidence on record arrived at the following conclusion:- “10. In the circumstance, taking the over-all picture of both the cases, S.C. Nos.29/94 and 18/92 into consideration, it is found that their common object to use criminal force or show of criminal force to commit various offences like hurt and murder are obvious. On the back-ground of their party faction, they started beating and using violence against the other group, when a petty quarrel took place between the female folks. There is no evidence specifically given by the P.Ws.1 to 4 regarding participation in rest of the accused persons named in the charge- sheet. They have not categorically stated as to how the other persons were participating with the assailants of this case by holding which kind of weapon or simply standing to encourage these assailants. So, the assailants named-above by P.Ws.1 to 4 are only found liable for the offence under Sec. 148 I.P.C. and they caused simple hurt as available in the medical evidence adduced by P.W.6. Therefore, the assailants are also liable for the offence under Sec. 323/149 I.P.C. Their number was exceeding five at that time of overt act. The plea of defence is not acceptable in view of the pendency of the other counter case. A scene of group fight is well established in the evidence of both the cases and so also, a case has already been established against injured jagili Das for the offence under Sec. 302 I.P.C. The argument advanced by the defence counsel is not acceptable, when the believable evidence is available on record. Accordingly, accused Ghata Das, Babu Das, Bhima Das, Durjyadhan Das, and Daya Das are convicted for the offences under Secs. 148 and 323/149 I.P.C. and the rest of the accused persons are acquitted from the charges.” Page 5 of 13 7. Aggrieved by the aforementioned judgment of conviction and order of sentence passed by the learned 1st Additional Sessions Judge, Berhampur, the present Appeal has been preferred by the appellants. 8. Mr. Faradish, learned Amicus Curiae has extensively taken me to the evidence brought on record by the prosecution and contended that this is a case of clear acquittal. He submitted that the informant (P.W.1) in his oral F.I.R. only made allegation against these appellants that they have assaulted him but there is neither any whisper about the assault to the son of the informant (P.W.4) nor to any other injured persons. He further submitted that the discrepancies in the evidence regarding the specific injuries alleged by the P.Ws.1, 2, 3 and 4 against the specific appellants, the injuries noted by the doctor (P.W.6) are significant. P.W.1 in his evidence has stated that the appellant No.3-Babu Das gave a lathi blow to the right side of the head of the informant and the appellant No.1-Ghata Das gave a blow by Badakati to his left eye-brow. However, the doctor (P.W.6) opined that lacerated injury on the right side of the forehead and linear abrasion on the left eyebrow. A Badakati blow would likely to cause an incised wound not merely an abrasion. Such Page 6 of 13 inconsistencies suggest embellishment or outright false implication of specific roles to the appellants. 9. Mr. Faradish, learned Amicus Curiae further submitted that though the doctor (P.W.6) examined the injured Jagili Das and Babu Das, who belong to small party but they have not been examined by the prosecution as witnesses 10. I have carefully gone through the materials on record before the trial Court and taken into consideration the submission made by both the parties. Perusal of the evidence of P.Ws.1, 2, 3 and 4 reveals that the informant and the injured witnesses although have narrated the incident but they have not taken the name of all the appellants and also not described the overt act. P.W.1 has stated that the appellant No.3- Babu Das has given him a lathi blow on the right side of his head whereas appellant No.1-Ghata Das gave a blow by badakati to his left temple. He has also stated that appellant No.4-Bhima Das have given a blow by a badi (stick), as a result, he sustained injury near the right hand forearm elbow. The injury caused by the appellants named by the informant Page 7 of 13 (P.W.1) stands corroborated by the evidence of the doctor (P.W.6), who found the following injuries sustained by P.W.1:- “(i). Lacerated injury of size 1” x 1/2” x 1/3” on the right side of the forehead. (ii) Two linear abrasion of size 2” x ½” of skin depth on the right scapula region. (iii) Liniar abrasion of size 1” x ½” x skin depth on the left eyebrow. (iv) Swelling of size 3” x 2” on the center of the right forearm.” Similarly, P.W.2, the eye witness has taken the name of the appellant No.3-Babu Dash, appellant No.1-Ghata Das, appellant No.4- Bhima Das and two more accused namely DIiambar and Mangulu Das. Both Digambar and Mangulu Das were not made accused although specific overt act is attributed to them by P.W.2. P.W.2 has stated that the appellant No.3 gave a lathi blow on the head of P.W.1 whereas appellant No.1 gave a blow by badakati to the left temple near eyebrow of P.W.1. He has also stated that the appellant No.4 had given a stick blow to the right hand of P.W.1. 11. P.W.6, the doctor while examining the injured P.W.2 has found the following injury:- (i) Lacerated injury of the size 3” x 1” x ½” on the vault of the Skull. (ii) Abrasion of size 2” x 1” x skin depth on the right sacroilisc region.” Page 8 of 13 Likewise, P.W.4, the son of the informant (P.W.1) has also taken the named appellant Nos.1, 3 and 4. He has also taken the name of Digambar and his mother Chandri Das, however, both of them were not examined by the prosecution. As against the injury stated to have been caused to him by three of the appellants, the doctor (P.W.6) found only one injury i.e. “One lacerated injury of size 2” x 1” on parietal region.” Therefore, the discrepancies in the evidence of P.Ws.1, 2, 3 and 4 vis-à- vis the injury noted by the doctor (P.W.6) remains apparent. 12. It is significant to note that in the present case, weapon of offence has not been seized by the I.O. No material evidence has come on record to establish the grievous injuries caused to P.W.1 to P.W.4. It is also emanating on record that in so far as the appellant No.2-Daya Das and appellant No.5-Durjya Das are concerned, there is no specific overt act attributed to them except P.W.3, the injured in his testimony has stated that the appellant No.5-Durjya Das gave a lathi blow on his head. However, no corresponding injury was found on his body by the doctor, who examined him. The evidence relied upon by the learned trial Court Page 9 of 13 to convict the appellant Nos.2 and 5 are not inspiring confidence to sustain the conviction against them. Therefore, both of them are entitled to an acquittal on the ground of benefit of doubt. Hence, the present appeal qua the appellant Nos.2 and 5 is allowed. Both of them are acquitted of all the charges. The bail bond furnished by them stood discharged. 13. However, in so far as the appellant Nos.1, 3 and 4 are concerned, the evidence of all the injured witnesses stood corroborated with the evidence of P.W.6. All the injured witnesses have very categorically attributed the overt act leading to the injury caused to the said witnesses. P.Ws. 1, 2, 3 and 4 have sustained extensive cross-examination by the defence, however, the part of their evidence regarding the injury caused to them remained unshaken. However, the defence could successfully create a doubt regarding the evidence of P.W.2. In the cross-examination of the I.O. i.e. P.W.5, it has been brought on record that P.W.2 has not stated the fact, which has been deposed before the police. P.W.5 in paragraph-4 of the cross-examination has stated as under:- Page 10 of 13 “I have examined Bijaya Das (P.W.2) in this case. He has not stated before me that hearing the sound of quarrel between Kamala and Gita, he came out from his house. He has not stated before me that Krushna Das asked the accused persons not to make disturbance in a festive day like Dasahara. He has not stated before me the details of assault on Krushna Das.” 14. Mr. Faradish, learned Amicus Curiae has strongly relied upon the aforementioned evidence of P.W.5, the I.O. of the case to create a doubt regarding the trustworthiness of the testimony of P.W.2. Even if the submission of learned Amicus Curiae is taken to be correct and the evidence of P.W.2 is discarded, the remaining evidence of P.Ws.1, 3 and 4 are enough to found the guilty of appellant Nos.1, 3 and 4. Therefore, the judgment of the learned trial Court convicting the appellant Nos.1, 3 and 4 for the offences under Sections 148/323/149 of I.P.C. is liable to be affirmed. 15. At this stage, Mr. Faradish, learned Amicus Curiae for the appellants submitted that the incident relates back to the year 1991 and at that point of time, the appellants were very young. As many as fourteen accused persons were put to trial. Out of them, the present five appellants have been convicted. At present, they are in their late fifties and leading a respectful life along with his family. Over the years, they Page 11 of 13 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 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, in the fitness of situation, the appellants may be extended the benefit of the Probation of Offenders Act read with Section 360 Cr. P.C. 16. Taking into consideration the nature of offence committed by the appellant Nos.1, 3 and 4, I am not inclined to accept the prayer made by the learned Amicus Curiae for grant them probation rather I feel it appropriate to substitute the sentence by imposing a fine of Rs.5,000/- (Rupees five thousand) each, in default of which, the appellants shall undergo Rigorous imprisonment for one month. The fine amount to be deposited within one month shall be disbursed to the victim in accordance with the procedure established under Section 357 Cr.P.C. 17. Accordingly, the CRA is partly allowed. Page 12 of 13 18. This Court acknowledges the effective and meaningful assistance rendered by Mr. Mohammad Faradish, 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 19th August, 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Aug-2025 15:18:50 Page 13 of 13