The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.326 of 2004 (In the matter of an appeal under Section 374 of the Code of Criminal Procedure, 1973) Dipak Kumar Das ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Prakash Kumar Behera, Advocate For the Respondent : Mr. Raj Bhusan Dash, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 10.07.2025 : Date of Judgment: 18.07.2025 S.S. Mishra, J. The present Criminal Appeal is filed under section 374 of Cr. P.C. assailing the Judgment of conviction and order of sentence dated 30.08.2004 passed by the learned Special Judge, Balasore in Special Case No.49 of 2001, whereby the learned Court below, finding the appellant guilty of commission of the offence punishable under Sections 448/323 of the Indian Penal Code, sentenced him to undergo S.I. for one month on each count for the offence under Sections 448 and 323 of the Indian Penal Code.
Legal Reasoning
2. Heard Mr. Prakash Kumar Behera, learned counsel appearing on behalf of the appellant and Mr. Raj Bhusan Dash, learned Additional Standing Counsel appearing on behalf of the Respondent-State. 3. The prosecution case in terse and brief is that on 16.08.2000 at about 1 P.M., on getting telephonic information regarding certain disturbance in the village- Makhanpur, the A.S.I. of Police of Khaira Police Station along with the staff went to the spot, where he received a written information by one Laxmi Sial, who is the informant, i.e. P.W.1 that on the same night, at about 1.00 P.M., while she was alone at her house, she heard sound of a scooter in front of her house and subsequently she found the present appellant along with seven other (acquitted) co-accused persons being armed with deadly weapons forcibly entered into her house, abused her by caste and inquired about the informant’s husband and brother-in-law. Subsequently, the appellant and another co-accused pulled her saree and made her go naked. Page 2 of 11 Thereafter, the other co-accused person snatched away the informant’s gold chain and ear rings and when some neighbouring children reached there, the appellant along with seven co-accused persons left the informant’s house and entered into the house of one Lambodar Majhi. Thereafter, the appellant assaulted one Ramesh Kumar Majhi, i.e. P.W.3 and while one Tilottama, wife of Lambodar Majhi, i.e. P.W.6 tried to escape, one Satyakam Das (not charge sheeted) pulled her saree and made her naked and subsequently took away her gold chain and ear rings. However, because of timely intervention by the local villagers, the appellant along with all the co-accused persons fled away from the spot. 4. On the basis of the aforementioned allegation, the F.I.R. was registered against the appellant and the investigation was carried out. 5. The charge sheet was filed against eight accused persons including the present appellant for the alleged commission of the offences punishable under Sections 148, 448, 354, 323 read with Section 149 of the IPC and under Section 3 (1)(x) of the SC & ST (PoA) Act. Charges were framed under the above provisions against all accused persons and they were put to trial. Page 3 of 11 6. From the allegation as portrayed by the prosecution, there are two occurrences happened on the same day back to back whereby the accused persons have attacked the injured and indulged in the inappropriate act. 7. Learned trial Court framed the charges against all the accused persons for the offences as mentioned above and put them to trial. 8. The Prosecution examined as many as eight witnesses to establish its case. P.W.1 is the informant and victim, who turned hostile to the prosecution. P.W.2 is also an injured in the alleged first occurrence happened in the house of P.W.1. The said witness has also turned hostile to the prosecution. P.W.3, Ramesh Majhi is an injured alleged to have been caused in the second occurrence which happened in the house of one Lambodar Majhi. P.W.4 is the husband of P.W.1, who was cited as a witness to establish the first occurrence. However, even he has turned hostile. P.W.5 is the doctor, who examined Ramesh Majhi, P.W.3 and Tilotama Majhi, P.W.6. P.W.7 one Manoranjan Majhi has supported the prosecution in regard to the second incident. P.W.9 is the Investigating Officer. Page 4 of 11 9. Learned trial Court, by taking into consideration the entire evidence brought on record by the prosecution, has arrived at a conclusion that the first part of the occurrence is not believable, hence acquitted all the accused persons from all the charges. However, believing the second part of the incident, although acquitted all the other accused persons of the charges, but found the appellant guilty for the offence punishable under Sections 448 & 323 of the IPC. 10. In so far as the other charges are concerned, the learned trial Court has also acquitted the appellant. Accordingly, sentenced the appellant to undergo S.I. for a period of one month on each count under Sections 448 and 323 of the IPC. The appellant out of the said sentence has already served out fifteen days custody. 11. The appellant is aggrieved by the judgment of conviction and order of sentence passed by the learned Special Judge, Balasore, hence he has filed the present Criminal Appeal. 12. I have gone through the evidence brought on record by the prosecution in the instant case and also heard both the counsels at length. Page 5 of 11 13. Learned trial Court is absolutely correct in disbelieving the first part of the occurrence because the informant and the injured namely P.W.1 as well as the other injured P.W.2 have turned hostile. They have also sustained extensive cross-examination by the prosecutor, but nothing could be elucidated from them to establish the prosecution case in so far as the first incident is concerned. 14. None of the medical evidence pertaining to the injured in so far as the first occurrence is concerned has been brought on record. Therefore, the case of the prosecution is now rests upon the evidence of the witnesses in so far as the second occurrence is concerned. In that regard, the evidence of P.W.3 is relevant. P.W.3 in his testimony has stated as thus: that: “The occurrence took place about three years back. On the date of occurrence while I was in my house, the accused persons entered into the house and brought me out. The accused Dipak gave me slaps. I had reported the matter to the police. I have been examined by the doctor. I have signed in the injury certificate given by the medical officer. Ext.1 is my signature.” In para-3 of his deposition, the said witness has further deposed Page 6 of 11 “I do not remember the exact date when I was assaulted by accused Dipak. There was a previous altercation between accused Dipak and myself. Probably for that reason he assaulted me. Dipak slaped me on my right cheek and I sustained swelling injury…….” 15. P.W.5, the doctor, who has examined Ramesh Majhi, P.W.3 has deposed thus: “1. On 17.8.2000, I was in the present post as Paediatric Specialist of Khaira C.H.C. On that date, on police requisition, I examined one Ramesh Ku. Majhi s/o. Late Purna Majhi of village Makhanpur, P.S. Khaira and found the following:- (i) (ii) bruise of size 1”x1/2”x1/4” over the left zygoma bruise of size 1/2"x1/2”x1/4” on the right cheek. Both the injuries were simple in nature and might have been caused by hard and blunt object. The age of the injury was within 24 hours prior to the time of my examination. Ext.1/1 is the injury report prepared by me and Ext.1/2 is my signature.” From the evidence of P.W.5, it is apparent that P.W.3 has sustained two injuries, which have been caused by hard and blunt object. However, P.W.3 has very categorically stated in his evidence that the appellant has only given a slap in his right cheek. There is no injury found on the right cheek of P.W.3, which could correspond to the injury alleged to have Page 7 of 11 been caused by the appellant to P.W.3. Therefore, the version of P.W.3 is not corroborated with the evidence of P.W.5. 16. P.W.7 is one of the witnesses, who has also deposed regarding the second incident, who in his deposition has stated as under: “…..I heard that there was further disturbance and assault by accused Dipak during noon. I have not personally seen the occurrence. During the morning quarrel, somebody had assaulted me on the back neck near the waist, for which, I was examined by the doctor on police requisition. I cannot say who assaulted me in the morning……” He has narrated prior to the incident to establish that there was enmity between two groups. However, in his testimony, nothing could be derived, which could be used against the appellant to sustain the charge against him. From the evidences of P.W.7 and P.W.8, it is apparently clear that, there was an incident, which had happened earlier, for which there was hostility among two groups which led to the quarrel and both the parties have assaulted each other. 17. Learned trial Court appreciated the entire evidence and disbelieved the prosecution evidence and acquitted all the accused persons except the present appellant. Page 8 of 11 18. So as to record the guilt of the present appellant, learned trial Court emphasised the evidence of P.W.3 and has arrived at the following findings: “7. P.W.3- Ramesh Majhi identified the accused persons in Court and stated in his evidence recorded on 16.7.2003 that the occurrence took place about 3 years back while he was in his house, and during the occurrence all the accused persons entered into his house and accused Deepak Kumar Das gave him slaps. He reported the matter to police and was also examined by the doctor. He has signed on the injury report and proved his signature Ext.1 on the same. His cross-examination reveals that there was a previous altercation between him and accused Deepak Kumar Das and probably for that reason accused Deepak Kumar Das assaulted him. He has also stated that accused Deepak Kumar Das slapped on his right cheek and he sustained injury. The doctor (P.W.5) has found one bruise on the right cheek and one bruise over the left zygoma of P.W.3, which were simple in nature. The cross-examination of P.W.3 further reveals that he has not lodged any written report about the occurrence before police. This means that his evidence that he reported the matter to police would mean that he reported the matter orally that is to say he was examined by police on the date of occurrence during the course of investigation. The statement of P.W.3 given to P.W.9 is what he (P.W.3) reported to police. P.W.3 has also stated in his cross-examination that subsequently they have settled the dispute. It is, therefore, clear that having come to some sort of settlement with the accused persons, P.Ws. 1, 2, 4 and 6 turned hostile during their evidence in Court. However, the evidence of P.W.3 which is amply corroborated by the medical evidence of P.W.5 and the injury report (Ext.1/1) clearly prove that accused Deepak Kumar Das assaulted P.W.3 and caused hurt to him. Part Page 9 of 11 of the prosecution case is that after committing certain offences in the house of the informant Laxmi Sial the accused persons entered inside the house of P.W.3-Ramesh Majhi and there accused Deepak Kumar Das dealt slaps to him. The evidence of P.W.3 and that of P.W.5, the doctor, is quite clear, cogent and trustworthy. There is no reason not to believe the same with regard to part of the prosecution case.” 19. The finding so recorded by the learned trial Court appears to be inappropriate in view of the testimony of P.W.3 and P.W.5. P.W.3 has stated that the appellant has given a slap. However, the doctor, P.W.5 found no corresponding injury, rather two injuries were found on the body of P.W.3, which appears to have caused by the blunt weapon. It is nobody’s case that the appellant was armed with any weapon. The other witnesses have also not supported the version of P.W.3. Therefore, the finding recorded as above, is not sustainable on the face of record. Hence, the ultimate guilt of the appellant recorded by the learned Court below in paragraph-12 of the impugned judgment is not sustainable. Para-12 of the impugned judgment reads thus: “12. In the light of the discussions made above, I find all the accused persons except accused Deepak Kumar Das not guilty of any of the charges under sections 148, 448, 354, 323 read with Section 149 of the Indian Penal Code and section 3(1)(x) of the Scheduled Caste and Scheduled Page 10 of 11 Tribes (Prevention of Attrocities) Act, and therefore acquit them thereof. Accused Deepak Kumar Das is also found not guilty of the offence under sections 148 and 354 read with section 149 of the Indian Penal Code and section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act, and he is acquitted thereof. He is, however, found guilty of the offences under Sections 448 and 323 of the Indian Penal Code and is convicted thereunder.” 20. In view of the aforementioned reason, the impugned judgment and order dated 30.08.2004 passed by the learned Special Judge, Balasore in Special Case No.49 of 2001 is liable to be set aside and the appellant is entitled for acquittal of all the charges including the charges under Sections 448 and 323 of the Indian Penal Code, as the prosecution failed to prove its case beyond all reasonable doubt. 21. The appellant is acquitted from all the charges and the bail bond stands discharged. 22. The Criminal Appeal stands allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 18th of July, 2025. Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 18-Jul-2025 18:55:59 Page 11 of 11