The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 309 of 2005 (In the matter of an application under Section 374 of Criminal Procedure Code) Trilochan Bisoi ……. Appellant(s) -Versus- State of Orissa ……. Respondent(s) For the Appellant : Mr. Arijeet Mishra, Advocate
Legal Reasoning
For the Respondent : Mr. S.J. Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 15.07.2025 :: Date of Judgment:31.07.2025 S.S. Mishra, J. The present appeal is directed against the judgment of conviction and order of sentence dated 30.06.2005 passed by the learned Sessions Judge-cum-Special Judge, Koraput at Jeypore in T.R. Case No.95 of 2001, whereby the learned trial Court has convicted the accused-appellant for the offence punishable under Sections 324 and 294 of IPC and sentenced him to undergo R.I. for one year and one month. 2. Heard Mr. Arijeet Mishra, learned counsel for the appellant and Mr. S.J. Mohanty, learned counsel for the State. 3. The prosecution case in terse is that on 27.09.1999 at about 11.30 P.M. when the informant Sadana Harijan was inside his house he heard stone pelting sound on the tin roof of his house. So he came out and saw the accused-appellant and asked him by protesting as to why he was pelting stone on his roof, the accused assaulted him on his leg with an axe which he had held concealing. Due to the assault, he sustained severe bleeding injury on his leg. The accused also abused him and his family members in obscene language as “MAGIYA TORO MAIPO KU GEIBI”. 4. On the basis of the aforementioned allegations, Sunabeda P.S. Case No. 87 of 1999 under Sections 324/294 of IPC read with Section 3(1) (x) of Scheduled Castes and Scheduled Tribes (PoA) Act, 1989 was Page 2 of 10 registered corresponding to G.R. Case No. 606 of 1999 and investigation of the case was conducted and charge sheet was submitted against the appellant for the alleged commission of the aforesaid offences and accordingly charges were framed and the appellant was put to trial. 5. The prosecution examined as many as eight witnesses to substantiate its case. P.W.1 was the informant-victim, P.W.2 and P.W.3, were the villagers, P.W.4 was a witness to the occurrence and a co- villager, P.W.5 was the Councilor of Sunabeda NAC, P.W.6 was the ASI of Sunabeda Police Station, P.W. 7was the doctor and P.W.8 was the I.O. of the present case. 6. On the other hand, the accused examined the defence witness, such as, D.W.1 to rebut the alleged case of the prosecution. 7. The learned trial court although acquitted the appellant of the charges under Section 3(1) (x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, but found him guilty of offence Page 3 of 10 under Sections 294 and 324 IPC, inter alia, returning the following findings:- they appear to be competent and “9. Thus on analysis of the aforesaid oral as well as documentary evidence it is found that evidence of the informant materially corroborated his FIR allegations and therefore both the contents of the FIR and his evidence is the treated as substantive evidence which supports prosecution case. Similarly the evidence of P.W.2 Mahadev Naik, P.W.3 Ghasi Bagha and P.W.4 Kamala Harijan have fully corroborated the fact of accused during the informant in obscene words aspersing on his lower caste as well as assaulting him by means of an axe causing bleeding injury. These witnesses appear to be most competent and probable witnesses. Moreover each of them have also admitted the presence of other. In cross examination part of their aforesaid evidence has not been discredited in any manner. independent Thus, witnesses as well as truthful witnesses. Thus their evidence having been relied on supports the aforesaid substratum of the prosecution case. Apart from the evidence of P.W.5 corroborates the case of the victim. Doctor’s evidence combined with his injury report i.e. the whole medical evidence fully corroborates the existence of incised injury on the affected portion of the leg of the injured soonafter the alleged occurrence which is most probably caused by the axe assault of the accused. Lastly the evidence of the I.O also corroborated the investigation part of the case i.e. the weapon of offence has been seized on production by the informant in the police station. The I.O.’s evidence as well as the evidence of the seizure witness corroborated the fact of seizure. There is evidence that after assaulting while running away from the spot the accused left behind the axe at the spot. So there is every possibility that the informant might have collected it and later on produced it in the police Page 4 of 10 station consequent to which the police seized the same. Thus the fact of abuse and the fact of voluntarily causing hurt have been proved beyond doubt. 10. However, on close scrutiny it is found that there is some minor discrepancy in the language of abuse alleged in the FIR and words of abuse stated by the informant and witnesses at evidence stage in as much as the words of abuse alleged in FIR does not contain any aspersing on the caste of the victim whereas the words of abuse stated in evidence is aspersing on his dombo or lower caste. The place of occurrence is village road and in front of the house of the victim and even though it was night time the outside villagers were present. Therefore the place can be held as place within public view. The caste of the victim has been proved as Scheduled Caste and the caste of the accused not to be of Scheduled Caste or scheduled tribe. So some of the aforesaid ingredients of the offence under Section 3(1) (x) of the Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act 1989, appears to have been fulfilled by the aforesaid evidence on record. The abusive words are so vulgar that it can be held that it is to insult and intimidate or annoy anybody. But the other ingredient of the offence appears to have not been proved in the light of observation made by me above. Apart from it there is also another lacuna from the side of prosecution evidence. The evidence clearly transpires that P.W.7 is the A.S.I. of police has done major part of the investigation, whereas the D.S.P. only tested the witnesses and perusing the investigation record of the predecessor I.O. submitted charge sheet. But as per the legal principle held by our own High Court that in a case involving the offence under Section S.C. and S.T. (P.A.) Act the investigation ought to have been done by a designated police officer not below the rank of D.S.P. and whenever at the beginning stage a police officer below the rank of D.S.P. has conducted investigation and subsequently investigation conducted by the D.S.P. in that the major part of Page 5 of 10 case if the D.S.P. did not conduct major part of the investigation still then the investigation of the case is held to be void ab initio. Thus, this principle is applicable to the instant case. Here the investigation is held to be void ab initio since the D.S.P. has not conducted any investigation or at least a major part of investigation whereas the police officer below the rank of D.S.P. has conducted the major part investigation of the case. Consequently the charge under Section 3(1)(x) of the S.C. and S.T.(P.A) Act would not be made out against the accused in this face of aforesaid allegation. However, on the same allegation of abuse the ingredients that the place of abuse was a public place and the language of abuse used is sufficient to annoy the person aimed at and other public and in fact other public have heard it, have been proved. Therefore, on the basis said allegation the charge under Section 294 IPC appears to have been made out against the accused. Of course there has been no charge framed in this case under Section 294 IPC, but the nature and manner of charge under Section 3(1)(x) of the S.C. and S.T. (P.A.) Act and 294 IPC appears to be same and similar although the offence involved relate to different facts. Therefore in my opinion non-framing of charge under Section 294 I.P.C. cannot be said to have prejudiced the accused if he is held to be guilty thereunder on the basis of the aforesaid evidence regarding abuse when he has faced a similar charge under Section 3(1)(x) of the S.C. and S.T. (P.A.) Act.” 8. The appellant is seriously aggrieved by the aforementioned findings recorded relating to the offence under Sections 294 and 324 IPC, hence he has filed the present appeal assailing the same. Page 6 of 10 9. When the matter was heard on 15.07.2025, Mr. Arijeet Mishra, learned counsel for the appellant has stated at the Bar that the appellant was convicted for the offence under Sections 324/294 of IPC and substantially he has been sentenced to undergo R.I. for one year, out of which the appellant has already undergone the custody for about three months. The appellant-Trilochan Bisoi was 42 years at the time of the incident, i.e., in the year 1999 and now he is in late sixties. Therefore, sentencing him to custody at the belated stage to serve out the sentence awarded would be harsh. Hence, while confining his argument to the quantum of sentence, he prays for enlarging the appellant by granting the benefit of Probation of Offenders Act. 10. Taking into consideration the fact that the appellant was only 42 years at the time of incident in the year 1999 and the fact that he has a clean antecedent, I am of the considered view that the submission made by learned counsel for the appellant deserves merit. The appellant was convicted vide judgment and order dated 30.06.2005 and the appeal is pending since 2005. Much has changed in the life of the appellant in Page 7 of 10 between and he has already settled in his life. The appellant has undergone the ordeal of prolonged trial and pendency of appeal for about two decades. 11. In the prevailing scenario, regard being had to the age of the appellant and his clean antecedents and the fact that the incident had taken place in the year 1999, and the appeal has been prolonging to be heard for about 20 years. At the time of incident, the appellant was in his early forties. At present he is in his late sixties and leading a respectful life along with his family. It is also brought to the notice of this court that the appellant has no criminal antecedents, and no other case of a similar nature or otherwise is stated to be pending against him. Over the years, he has led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating him after such a long delay would serve little penological purpose and may in fact be counter- productive, casting a needless stigma not only upon him but also upon his family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Hence, I Page 8 of 10 am of the considered view that the appellant is entitled to the benefit of the Probation of Offenders Act read with Section 360 of Cr.P.C. The case of the appellant is also covered by the ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra1 and Dhani @ Dhaneswar Sahu vs. State of Orissa2. 12. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing the appellant to suffer imprisonment, this Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of one year on his executing bond of Rs.5,000/- (Rupees Five Thousand) within one month with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellant shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year. The appellant is 1 2012 (Supp-II) OLR 469 2 2007 (Supp.II) OLR 250 Page 9 of 10 directed to appear before the learned trial court to furnish the bail bond, as mentioned above. 13. The CRLA is accordingly partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 31st of July, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 01-Aug-2025 11:38:15 Page 10 of 10