Orissa High Court
Ghata Das And Others vs State Of Orissa on 19 August, 2025
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.
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
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
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
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."
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
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
(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."
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
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:-
"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
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.
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
Designation: Senior Stenographer
Location: High Court of Orissa
