Orissa High Court
Noor Mohammed Khan & Another vs State Of Orissa on 19 August, 2025
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
appellants, vide order dated 03.07.2025, Mr. Satyabrata Mohanty (1),
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
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
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.
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."
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
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
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
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
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
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.
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
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 19-Aug-2025 19:36:36
