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Orissa High Court

Niro Bhuyan vs State on 23 December, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLA No. 554 of 2010

(In the matter of an application under Section 374 of the Criminal
Procedure Code, 1973)


Niro Bhuyan                     .......                   Appellant

                                 -Versus-

State                          .......                  Respondent

For the Appellant : Ms. Subhashree Sen, Amicus Curiae along with Ms. Biswarupa Pati, Advocate

For the Respondent : Mr. R.B. Dash, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 16.12.2025 : Date of Judgment: 23.12.2025

S.S. Mishra, J. The sole appellant-Niro Bhuyan has filed the present

Criminal Appeal assailing the judgment of conviction and order of

sentence dated 26.10.2010 passed by the learned Addl. Sessions

Judge, Gajapati at Parlakhemundi in Sessions Case No. 18 of 2006

(arising out of G.R. Case No.239 of 2004), convicting him under Sections 323/342 IPC. The learned Trial Court sentenced him to

undergo S.I. for two months and to pay a fine of Rs.1,000/-, in default

to undergo S.I. for one month on each count with further count to run

the sentence concurrently.

2. When the matter was taken up for hearing, none appeared for

the appellant consecutively for three dates of hearing. Therefore, Ms.

Subhashree Sen, learned counsel has been appointed as Amicus

Curiae to assist the Court. Subsequent thereto, when the matter was

taken up for hearing today (16.12.2025), Ms. Biswarupa Pati, learned

counsel for the appellant also appeared. Therefore, on the request of

the Court, both Ms. Subhashree Sen, learned Amicus Curiae and Ms.

Biswarupa Pati, learned counsel for the appellant, assisted the Court

on behalf of the appellant.

3. Heard Ms. Subhashree Sen, learned Amicus Curiae and Ms.

Biswarupa Pati, learned counsel for the appellant and Mr. R.B. Dash,

learned Addl. Standing Counsel for the State.

4. The case of the prosecution, in gist, is that on 17.07.2004 while

the forest guard Hara Prasad Sahu was on official duty near

Kinchilingi plantation area, he found two persons were

unauthorisedly removing logs from the said plantation area. He

chased them and recovered one axe from them but those unknown

culprits somehow managed to flee away. After their departure, Niro

Bhuyan of Deula came to that plantation area on his motorcycle in the

company of one of those unknown culprits and Niro Bhuyan abused

the forest guard Hara Prasad Sahu in obscene language and thereafter

forcibly snatched away the seized axe from him and during such

snatching the blunt portion of the axe hit the nose of the forest guard

causing severe bleeding injury. Thereafter Niro Bhuyan and the said

unknown culprits left the spot. After some time of their departure,

Forester Sarat Chandra Padhi and another forest guard Lalmohan

Misal while moving on their motorcycle, reached the spot where

helplessly the forest guard Hara Prasad Sahu was standing in bleeding

condition. They listened the entire incident from Hara Prasad Sahu

and then by their motorcycle, they shifted the injured Hara Prasad

Sahu to Garabandha Govt. Hospital. But on their way while they were

passing by the side of village Deulo, again accused Niro Bhuyan in

the company of 30 to 40 persons obstructed them, forcibly dragged

the Forestor as well as the two forest guards above mentioned inside

the village; confined them till 10 P.M. in the night and during such

confinement, Niro not only assaulted the Forestor but also tried to

throttled him to kill. The other accused persons in the company of

accused Niro similarly assaulted the forest guards Hara Prasad Sahu

and Lalmohan Misal. They forcibly obtained the signatures of the

Forestor and forest guards upon some documents and thereafter

released them. In the same night, Forestor Sarat Chandra Padhi and

the aforesaid two forest guards came to Garabandha Govt. hospital

and the doctor treated them and thereafter the Forestor went to

Garabandha P.S. and lodged a report in writing regarding the

occurrence. The Garabandha police accordingly registered the case

and after investigation, submitted the charge sheet.

5. To prove the charges, the prosecution examined twelve

witnesses including the injured-informant, injured witnesses and the

I.O. Besides oral evidence, the prosecution has also led documentary

evidences vide Ext.1 to Ext.19.

6. The counsels appearing for the appellant have extensively read

out the evidences and pointed out the discrepancies and contradictions

appearing in the evidence of the prosecution. They submitted that

even if the testimonies are stretched to any extent, the offence under

Section 323 IPC or 342 IPC cannot made out. The counsels appearing

for the appellant have also submitted that out of twelve witnesses,

P.Ws.1 to 5, those who are independent witnesses, have not supported

the prosecution case and as such, they were declared hostile. P.Ws.6

and 7, were the doctors, who examined the injured. Their testimony

are falling sort to lend corroboration to the evidence of the injured

witnesses. Therefore, sustaining the conviction on the strength of such

weak evidence is not safe. They have also submitted that initially nine

accused persons were subjected to trial. The learned trial court

disbelieved the evidences of the witnesses vis-à-vis all other accused

persons and acquitted them. However, by singling out the present

appellant and on the strength of the same set of evidence, the

appellant alone has been convicted. Hence, the impugned judgment is

a culmination of non-application of mind. It was also pointed out that

P.W.9, the victim and P.W.10, the other forest guard have not fully

supported the prosecution case. However, the learned trial court

stretching the evidence of all those witnesses too far, recorded the

conviction, which is not sustainable.

7. Per contra, Mr. R.B. Dash, learned counsel for the State by

justifying the impugned judgment has submitted that the evidence of

P.Ws.8, 9 and 10 as well as the evidence of the doctors P.Ws.6 and 7

are unimpeachable barring the minor contradictions pointed out by

the defence, and their testimonies are trustworthy enough to sustain

the conviction recorded by the learned trial court.

8. I have carefully gone through the evidence of all the witnesses.

In order to establish the case of the prosecution so far as the offence

under Section 323 IPC is concerned, the evidence of P.W.9, the

injured witness assumes importance. P.W.9 deposed that on

17.07.2004 while he got credible information that some persons were

illegally removing trees from the plantation area of Kinchilingi, he

went to the spot and while he was about to reach the spot, he saw two

unknown persons were transporting forest produce. When he chased

them in order to catch hold of them, they threw away the forest

produce and tried to conceal under some bushes. He snatched away

one axe from the hand of one of the culprits before they could escape.

At that point of time, the present appellant came with one out of the

same culprits, who had escaped and started abusing. He further

deposed that the appellant tried to snatch away the axe from his hand

and with that axe he made a movement of his hand, as a result of

which the blunt portion of the axe hit his nose causing bleeding

injury. Thereafter, both the appellant and the other culprit fled away

from the spot.

P.W.8 is one of the eye witnesses. He has also deposed that the

appellant assaulted P.W.9 by the blunt side of the axe, as a result of

which P.W.9 sustained bleeding injury. Similarly, P.W.10, who was

also another Forest Guard, however did not mention anything

regarding the assault being made by the appellant to P.W.9.

P.W.6 was the doctor, who had examined P.W.9. He deposed

that on examination, he found one injury, namely, a contusion 1.3 cm

x 1 cm just below the left lower eye lid. He has also opined that the

injury was simple in nature and possibly can be caused by a blunt

object.

9. On the basis of the testimony of those witnesses, the

prosecution attempted to establish the case against the appellant

proving the charge under Section 323 IPC. But the crucial part of the

evidence which the learned trial court appears to be missed is that the

injured himself has stated in his deposition that he sustained the injury

when the appellant was trying to snatch the axe from his hand. P.W.9

deposed that he had snatched away one axe from the hand of one of

the unknown co-accused and the present appellant was trying to

recover the said axe from him and in the process P.W.9 sustained

injury.

Reading of the evidence of P.W.9, makes it clear that the

present appellant had not deliberately gave any kind of blow. The

injury caused to P.W.9 was incidental, when he was trying to snatch

away the axe. Although the doctor, P.W.6 found one simple injury in

the left lower eye lid of P.W.9, but that cannot be attributed to the

appellant as if he has caused it voluntarily. Since the appellant has

neither voluntarily nor intentionally did any act causing simple hurt to

P.W.9, the ingredients of offence under Section 323 IPC is clearly

missing in the present case. Therefore, the inevitable conclusion is

that the prosecution has failed to prove its case beyond all reasonable

doubt to establish the charges under Section 323 IPC, as the basic

ingredients required to establish the offence is necessary. Hence the

appellant is entitled to the advantage of benefit of doubt. Accordingly,

the appellant is acquitted of the said charge.

10. Coming to the offence under Section 342 IPC, the learned

counsels for the parties have also read out the evidences in extenso to

support their respective cases. The learned trial court in regard to the

offence under Section 342 IPC, returned the following findings:-

"13. On the charge under section 342/34 IPC first of all I found that regarding involvement of other accused persons besides the accused Niro Bhuyan the evidence of P.Ws.8 and 8 is not clear because they have not stated anything in clear tone regarding individual overt act of the remaining accused persons. Their Evidence is almost against the accused Niro Bhuyan. The place of such occurrence is in village Deula and it is the native place of accused Annama Bhuyan, Daya Sabar, Anya Sabar, Kantaru Sabar, Naidu Sabar, Sukumari Sabar. So their presence in their native village Deula is quite natural. So their presence only at the spot in the company of the accused Niro in the particular night of dt. 17.07.04 does not itself sufficient to hold them guilty under section-34 I.P.C. The evidence of P.W.8 &

P.W.9 does not speak that before doing such offences there was a meeting of mind of all the accused persons. Similarly their evidence also does not speak in specific whether all the charge sheet accused persons have participated in the commission of the offences alleged. The Hon'ble Apex Court in the case between, Lala Ram. vs. State of Rajasthan reported in 2007 (2)SC ALR At page-621 held that there may be pre-arrangement or it may develop on the spur of the moment but it must be done necessarily before the commission of the offence in order to constitute section 34 I.P.C. Similarly in another case the Hon'ble Apex Court (Hamlet. vs. State of Kerala) reported in (2003) 10 SCC page-108 held that there must be common intention and there must be participation of accused persons in commission of the offence. So mere presence in number at the spot is not sufficient to hold that such presence was there is furtherance of common intention. The general statement of P.W.8 and P.W.9 that remaining accused persons also assaulted is not safe at all. Furthermore looking to the presence of only two simple injuries in the body of Hara Prasad Sahu and presence of one visible injury on the left check of forestor Sarat Padhi along with complain of pain on ear and abdomen I found that such medical document on record also does not speak that all the accused persons at the time might have assaulted these two persons. So a general statement so to say one ominibus statement is not sufficient to hold that all the accused persons are guilty under section 34 I.P.C. Now coming to the charge under section 342/34 I.P.C. the learned defence counsel argued that Denula village is not coming on the way from Kinchiling square to Garabandha village. He submitted that either the official witnesses have deposed faisehood regarding the entire incident stated to have taken place in village Deula or they have gone there for some other purpose and subsequently developed the case of wrongful confinement and assault. The P.W.8 so also P.W.9 both deposed that from the road they as well as forest guard Lal Mohan Misal were forcibly taken to inside the village Deula and there they were confined till 10 P.M. in the night. Their evidence is solely against the accused Niro Bhuyan on the point that Niro Bhuyan taken away the key of the

motorcycle and Niro dragged them to the inside of the village and under assault taken away their signatures on some document. The accused Niro has taken a general plea of denial and has not led any rebutal evidence. The entire cross-examination of P.W.8 and 9 could not impeach the credibility of these witnesses regarding the point of wrongful confinement in village Deula in the relevant night of occurrence. Their evidence is corroborated by the evidence of the doctor P.W.6 who stated that at 10 P.M. of dt. 17.07.04 at 11.30 P.M. and in the case of Sarat Padhi at 12 P.M. he examined these two witnesses for having some injuries in their persons. So availability of these two witnesses at the Govt. doctor at that particular night and in that particular hour itself speaks that definitely from the evening till late night these two witnesses were detained. The learned defence lawyer argued that P.W.10 the other forest guard has not supported the evidence of P.Ws.8 and 9 and so the evidence of P.Ws.8 and 9 should not be believed upon by the Court. On this aspect he cited the decision of the Hon'ble Supreme Court of India in the matter between K. Ambazhagan vs. S.P. and others reported in 2004 (27) OCR (SC) P.380, Judgment of the Hon'ble Division Bench of Orissa High Court in the matter between State of Orissa. Vrs. T. Bijayakumar and others reported in (1989) 2 OCR, P.635 Judgment of the Hon'ble Orissa High Court in the matter between Purrandhar Bhukta. Vs. State of Orissa reported in (1990) 3 OCR, P.673. I read these cited decisions of the Hon'ble Orissa High Court and that of the Apex Court in the case of Purandhar Bhukta there is only one slap on the check of one B.D.O. by the contractor. But there -is contrary medical evidence on record and so the Hon'ble Court in such facts and circumstances held that the evidence of hostile witness cannot be relied upon and it is effecting the evidence of other witnesses. The case of T. Bijaya Kumar is a case u/s.376/302/321/34 I.P.C. and the matrix of the case is quite distinguishable to the facts of the present case in hand. In the case of K. Anbazhagan the Hon'ble Apex Court held that when a witness is declared hostile by the party who called him to the Court it cannot be accepted when the witness throughly discredited. The Hon'ble Court held that if the Judge finds that in the

process the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of that hostile witness accept such evidence and can act upon it. The ratio of this judgment is applicable to the present case in hand because I found that in a case between public servant and some private individuals it is quite natural and acceptable that independent witnesses may not support the evidence of the official witnesses. On this aspect the Hon'ble Supreme Court of India in the matter between State of U.P. vs. Anilsingh reported in 1988 (Suppl) SCC 686 held the position of law as follows. :- "We have recently pointed out the indifferent attitude of the public in the investigation of the crimes. The public are generally relunctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all the witnesses to the occurrence have not been examined, nor it is proper to reject the case for want of corroboration from independent witnesses if the case made out otherwise true and acceptable." In the case between in Manish Dixit and others. vs. State of Rajasthan reported in 2001 SC P.93 the Hon'ble Apex Court again pointed out the indifferent attitude of general public. So following such settled position of law with regard to attitude of general public, I find that P.Ws. 1 to 5 being persons of different adjoining villages of the accused persons are not expected to say anything against the accused persons for the obvious reason. Similarly in the case of P.W.10 Lal. Mohan Misal I find that after retirement from Govt. service as forest guard he becomes a person of village Guma under Serango P.S. which is quite adjoining to the Garabandha area where the accused persons lived. After retirement from Govt. service. it is quite expectable that this witness lost his credit worthyness and becomes one easy pray to the accused persons. When the P.W. 10 clearly admitted that he was all along present with the P.W.8 forestor up to Kinchilingi square and then up to village Deula while he remained silent regarding the subsequent incident is best known to him. He is declared hostile by the prosecution and even he admitted his signature on the report i.e. the F.I.R. as

Ext.4/3. He is a literate witness and retired forest guard and does not expect from him that he will sign on a document without knowing the contents thereof. There is scríptic cross- examination which is very very in sufficient to held that whatever this witness deposed in the Court is the case of the prosecution. So this hostile witness evidence cannot be relied upon by the Court because after his retirement from Govt. service he has been definitely gained over by the accused persons of his locality. So looking to these circumstances, position of law and the oral and documentary evidence I find that the charge under section 342 I.P.C. as a whole is established against accused Niro Bhuyan only."

11. The learned trial court has indeed very meticulously and

elaborately dealt with the evidence of the prosecution so also the

judgment cited by the parties and came to the conclusion that the

prosecution could establish the case beyond all reasonable doubt in so

far as the offence under Section 342 IPC is concerned. The learned

trial court has emphasized the evidence of P.Ws.8, 9 and 10 and also

relied upon Ext.4 to form the aforementioned conclusion. Although

the learned counsels appearing for the appellant attempted to dislodge

the findings by pointing out various contradictions in the testimony of

P.Ws.8, 9 and 10, but reading of the evidence of those witnesses in

unison, would justify the findings recorded by the learned trial court,

as mentioned above. Hence, I am not inclined to disagree with the

findings recorded by the learned trial court in so far as the offence

under Section 342 IPC is concerned. Accordingly, the same is

affirmed.

12. At this stage, the learned counsels appearing for the appellant

submitted that in the event this Court is not inclined to interfere with

the conviction, the sentence awarded to the appellant may be

considered leniently, because the appellant was forty years of age at

the time of incident, i.e., in the year 2004 and at present he is sixty-

one years of age and the appellant has already undergone twenty-one

days incarceration during the trial. It is further submitted that the

appellant has already faced the ordeal of trial for six years and the

appeal has been pending for the last fifteen years. Therefore, he may

not be sent to custody to serve out the remaining sentence at this

belated stage.

It is submitted that 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, it is argued, 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.

Therefore, in the fitness of situation, the appellant may be extended

the benefit of the Probation of Offenders Act read with Section 360

Cr. P.C. I am inclined to accede to the prayer made by learned

counsels for the appellant on the facts scenario of the case.

13. Regard being had to the societal position of the appellant, clean

antecedents and the fact that the incident had taken place in the year

2004, I am of the considered view that the appellant is entitled to the

benefit of the Probation of Offenders Act and Section 360 of Cr.P.C.

Additionally, the case of the appellant is also covered by 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

14. In Rattan Lal v. State of Punjab, reported in AIR 1965 SC

444, the Hon'ble Supreme Court held that the object of the Probation

of Offenders Act is to reform the individual offender and to prevent

2012 (Supp-II) OLR 469

2007 (Supp.II) OLR 250

the conversion of a youthful or first-time offender into a habitual

criminal by subjecting him to prison life. It was held thus: -

"The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act."

15. In such view of the matter, the present Criminal Appeal in so

far as the conviction under Section 323 IPC is concerned, is set aside,

however, conviction under Section 342 IPC is upheld. 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 three months 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

three months.