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THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.110 of 2003 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Chakradhar Swain & another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Satyabrata Mohanty (1), Amicus Curiae For the Respondent : Mr. Raj Bhusan Dash, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 21.08.2025 :: Date of Judgment: 09.09.2025 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 29.03.2003 passed by the learned 1st Adhoc Additional Sessions Judge, Puri in Sessions Trial Case No. 49/19/23 of
Legal Reasoning
2002/2000 (arising out of G.R. Case No. 193 of 1999 corresponding to Puri Town P.S. Case No. 36 of 1999. By the impugned judgment, both the appellants Chakradhar Swain and Keshab Maharana were acquitted of the charges under Sections 341/34, 294/34/323/34 and 307/34 IPC, but were convicted under Section 325/34 IPC and sentenced to undergo rigorous imprisonment for one year with fine of Rs.500/- each, in default to undergo R.I. for two months; the period of detention undergone during investigation/trial was directed to be set off under Section 428 Cr.P.C. 2. When the matter was called for hearing consistently, none
Legal Reasoning
appeared for the appellants. Therefore, on 22.07.2025, Mr. Satyabrata Mohanty (1) has been appointed as Amicus Curiae to assist the Court. 3. Heard Mr. Satyabrata Mohanty (1), learned Amicus Curiae for the appellants and Mr. R.B. Dash, learned Additional Standing Counsel for the State. 4. The prosecution case in brief is that on 16.02.1999 at about 7.00 P.M., while the informant injured Laxmidhar Mohapatra (P.W.1) was at his house at Mangalaghat, Kurunti Math Lane (Balabhadra Nagar), both Page 2 of 9 the accused along with some others entered into his premises, threatened him not to interfere in an alleged demand for money from an Amin, and thereafter assaulted him. Accused Chakradhar is said to have first dealt two blows on the head of P.W.1 with a casuarina (jhaun) stick; accused Keshab then assaulted his hands, legs, back and waist with a similar stick, causing him to fall. On being shifted to DHH, Puri, his blood- stained clothes were seized. The F.I.R. was lodged in the same night. During investigation, both the accused surrendered before the learned S.D.J.M., Puri and were remanded to judicial custody. The charge sheet was filed and charges were framed. On the stance of denial and claim of trial, the appellants were put to trial. 5. P.W.1 (injured)/informant is supported by P.W.2 (wife) and P.W.3 (son). P.W.4, an independent witness, did not support the prosecution and was declared hostile. P.W.5, the examining doctor on police requisition on 16.02.1999, noted multiple lacerations, abrasions and bruises and opined them to be simple; he did not suspect a fracture. P.W.8, the Radiology Specialist at DHH, Puri, took an X-ray of the right wrist/forearm and reported a fracture. P.W.7 was the Investigating Page 3 of 9 Officer, who visited the spot, prepared seizure, and submitted charge- sheet under Sections 341, 323, 325, 307, 294 read with Section 34 IPC. 6. The learned trial Court held that there was no material to prove wrongful restraint (Section 341 IPC) or use of obscenity in/near a public place with annoyance (Section 294 IPC). On Section 307 IPC, the Court found absence of injuries on vital parts and lack of intention/knowledge to cause death; hence, acquitted under Section 307/34 IPC. Relying on P.Ws.1–3 and the medical/radiological evidence of P.Ws.5 & 8, the Court concluded that grievous hurt was caused to P.W.1 by both accused in furtherance of common intention, and accordingly convicted them under Section 325/34 IPC and sentenced them as noted. The relevant portion of the aforesaid judgment is extracted herein below:- it is to be considered whether “16. Now in furtherance of their common intention the accused persons have committed the offence U/s 325 of the I.P.C. In this case admittedly the accused persons are two. They attacked and assaulted the informant at night in the inner Court yard of his house which pre- supposes that they have made a prior meeting of mind and there is a pre-concerat between them to commit the offence in question. It is also there in the evidence that both the accused persons have perticipated in the occurrance. Element of participation in action is Page 4 of 9 absolutely required for the purpose of section 34 of the I.P.C. In the decision reported in (1999) 17 OCR (S.C) at Page 543 Ramshish Vadev and others -V- State of Bihar it has been held as follows so far as section 34 of the I.P.C. is concerned. "Section-34 lays down the principle of joint liability in the doing of criminal act. The essence of that liability is to be found in the existence of common intention of a criminal act in furtherance of their common intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert existence of pre-arranged plan which is to be proved either from the conducts or from circumstances or from any incriminating facts. It requires pre-arranged plan and pre supposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the sour of the moment. But there must be pre arrangement or pre meditated concert". Applying the principles laid down in the aforesaid decision and the evidence on record there can be no excape from the conclusion that the accused persons in furtherance of their common intention have caused grievous hurt to P.W.1. Both the accused persons have arrived at the spot at one time. They attacked P. W. 1 and assaulted him by casuarina sticks and both of them had left the spot together. The occurrance Page 5 of 9 took place in the night which pre supposed that the accused persons have entered into court yard of the informant with prearranged plan with the intention of causing hurt to P. W. 1. Thus, it is proved beyond all reasonable doubt that both the accused persons have committed the offence U/s 325/34 of the I.P.C. In the result both the accused persons are found not guilty of the offence U/s 341/34, 323/34, 307/34 and 294/34 of the 1.P.C. and are acquitted in respect the said offences. But both of them are found guilty U/s 325/34 of the I.P.C. and Para convicted thereunder.” 7. On perusal of the evidence and the findings recorded by the learned trial Court, this Court finds that P.W.1 is the injured/informant; the law accords weight to his testimony when found natural and consistent. His version of being beaten with casuarina sticks in his homestead area at about 7.00 p.m. is cogently supported by P.W.2 (wife) and P.W.3 (son). P.W.4 turned hostile and, as rightly noted by the trial Court, lends no help either way. 8. P.Ws.2 & 3 speak of the inner courtyard, whereas P.W.7 notes the road in front of the house as the spot. The evidence also shows that the courtyard and the road are immediately adjacent. In such circumstances, that narrow variance, whether within the inner courtyard or the abutting Page 6 of 9 road, does not affect the basis of the prosecution case about the assault at the informant’s doorstep. 9. It is contended by the learned Amicus Curiae that the FIR, which is the foundation of the prosecution's case, has not been exhibited during the trial and even the scribe of the FIR has not been examined. In the absence of exhibiting and proving the FIR through the informant or the Investigating Officer, the prosecution loses an important piece of contemporaneous evidence for corroborating the oral testimony of witnesses. 10. The medical evidence of P.Ws.5 and 8 categorically shows that the injured sustained five injuries, out of which four were simple and one was grievous in nature, being a fracture of the ulna. These injuries are fully consistent with the version of the injured (P.W.7) and are further corroborated by the testimony of P.W.3, the informant. 11. The F.I.R. mentions certain neighbours (e.g., Bhimsen Barik, Balabhadra Mohapatra, Trinath Sahu, Rathi Barik) who were not examined; instead, P.W.4, who was not named in the F.I.R., was examined but turned hostile. Non-examination of every F.I.R., named Page 7 of 9 witness, is not ipso facto fatal where the injured and other witnesses present at the house offer a consistent, trustworthy account and are corroborated by medical evidence. No prejudice has been demonstrated from this selection. 12. There is no injury to any vital part suggesting intention/knowledge to cause death. The trial Court’s conclusion that Section 307 IPC is not attracted is unexceptionable. The proven fracture of the right ulna qualifies as “grievous hurt” (Section 320 IPC). Both accused came together, threatened and assaulted P.W.1 with similar sticks and left together, establishing participation in furtherance of common intention. The conviction under Section 325/34 IPC is well-merited and warrants affirmation. 13. The occurrence is of February 1999 is over twenty-six years ago. The appellants were 24 and 26 years old then; there is no material of any prior conviction. Both had surrendered during the investigation. As per the custody particulars placed before this Court, Accused No.1 has undergone 20 days and Accused No.2 has undergone 22 days of incarceration in this case. In the totality of circumstances, the age at the Page 8 of 9 time, the nature of weapon (casuarina sticks), the single grievous fracture (non-vital part), the long efflux of time, and the partial custody already undergone, this Court is persuaded to modify the substantive sentence to the period already undergone, while enhancing the fine to ensure a deterrent-cum-compensatory effect. 14. Accordingly, while maintaining the conviction under Section 325/34 IPC, the sentence is modified thus: the sentence of rigorous imprisonment for one year is reduced to the period already undergone by each appellant; the fine is enhanced to Rs.20,000/- (Rupees Twenty Thousand) each, in default, the appellants shall undergo R.I. of two months each. The fine amount so collected shall be disbursed to the victim (if alive) guided by the provisions under Section 357 Cr. P.C. 15. The Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 9th September, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 12-Sep-2025 10:48:01 Page 9 of 9