Orissa High Court
Baikuntha Mahanta @ vs State Of Odisha on 9 January, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA NO.195 OF 2005
An appeal under Section 374 of the Indian Penal Code.
Baikuntha Mahanta @ :::: Appellant
Baikunthanath Mohanta
-:: VERSUS ::-
State of Odisha :::: Respondent
For Appellant :::: Mr. D. Panda, Advocate
For Respondent :::: Mr. C.K. Pradhan, Addl. Govt.
Advocate
.........
PRESENT:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing- 09.01.2025 :: Date of Judgment- 09.01.2025
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through hybrid mode.
2. Heard Mr. D. Panda, learned counsel appearing for the
Appellant and Mr. C.K. Pradhan, learned Addl. Govt. Advocate
appearing for the Respondent.
// 2 //
3. The present appeal has been filed inter alia challenging order
of conviction and sentence passed by the learned Sessions Judge,
Mayurbhanj vide Judgment dtd.21.04.2005 in G.R. Case No. 250
of 2002 (T.C. No. 42/2003). Vide the said Judgment the present
Appellant was convicted and sentenced to undergo R.I. for one
year under Sec. 324 of the Indian Penal Code.
4. Learned counsel appearing for the Appellant contended that
the Appellant and two (2) others stood charged under Sec. 302,
342, 109/34 of the I.P.C.. Though all the accused persons were
acquitted on being not found guilty of the charges under Sec.
302, 342, 109/34 of the I.P.C., but the present Appellant was held
guilty of the charges under Sec. 324 of the I.P.C.. Accordingly,
the Appellant was convicted to undergo R.I. for one year for the
said offence.
4.1. It is contended that even though no material was found
against the present Appellant for the commission of offence
under Sec. 302, 342, 109/34 of the I.P.C., but basing on the
evidence laid by P.W. 3, who happens to be the sole eye witness
of the occurrence, learned trial court held the Appellant guilty of
// 3 //
the charges under Sec. 324 of the I.P.C.. Finding of the learned
trial court in Para 7 of the Judgment reads as follows:-
"Out of the 13 witnesses examined by the prosecution in the
case, P.W. 3 only claims to have witnessed the alleged assault
on the deceased which took place in his Bari. According to
him, while the deceased was sitting near the bamboo bush, all
the accused persons Came there and tried to assault him with
a spade and when the wife of the accused Baikuntha protested,
the accused persons picked up his axe and assaulted on the
leg, body and head of the deceased with the handle of the axe
and thereafter dragged him. But, in the cross-examination he
states that he had seen the blows given by the accused
Baikuntha only. Thus, in the cross-examination he does not
implicate the accused Ratnakar Mohanta and Pravakar Patra
in the commission of the assault on the deceased.
xxx xxx xxx
It is further found from his evidence in the cross-examination
that he had narrated the occurrence before P.W. 2 and his wife
(P.W.5). P.W. 1, who is one but the informant in this case
claims that on the date of occurrence at about 3 P.M. when he
returned home from village Ramsahi he came to know from his
wife that the accused persons were dragging the deceased on
the road and then he went to the house of his cousin brother
Charan Tiria (P.W. 3) to know the details of the occurrence.
But, the I.O. (P.W. 13) states that the wife of the informant
namely Parbati Tiria was not a material witness in the case
and as such he had not cited her as witness in the charge sheet.
Thus, from the statement of P.W. 13 it can be said that the wife
of P.W. 1 had not seen the alleged occurrence. The evidence of
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P.W. 1 shows that he had ascertained the details of the
occurrence from P.W. 3 and thereafter had reported the matter
to the police. But, the F.I.R. (Ext. 1) does not show that
accused Ratnakar Mohanta and Pravakar Patra had assaulted
or dragged the deceased during the occurrence. On the other
hand, the story narrated in the F.I.R. shows that after the
accused Baikuntha took the deceased up to his house by
dragging accused Pravakar Patra came to the spot and saw
the occurrence. Thus, the evidence of P.W. 3 in his
examination-in-chief that all the accused persons assaulted
and dragged the deceased cannot in my opinion be believed."
4.2. It is contended that even though the Appellant was convicted
for the offence under Sec. 324 of the I.P.C. basing on the
testimony of P.W. 3 in his cross-examination, but while
recording the statement of the Appellant under Sec. 313 Cr.P.C.,
no such question was put with regard to the assault made by the
Appellant on the deceased. Relevant portion of the statement of
P.W. 3 in his cross-examination reads as follows:-
"I went to the spot when accused persons dragged Rauta
towards their house. I have not seen any swelling and
injuries on the leg and body of the deceased. I have not
counted the strokes. Baikuntha assaulted the deceased. I
have seen three stokes given by Baikuntha only. I have seen
the strokes given by Baikuntha on the head, chest and leg. I
cannot say which stroke was given first in which portion of
the body. Non else were present at the spot during the time
of assault."
// 5 //
4.3. It is contended that since the testimony laid by P.W. 3 in his
cross-examination was never put to the Appellant while
recording his statement under Sec. 313 Cr.P.C., in view of the
decision of the Hon'ble Apex Court in the case of Sharad
Birdhichand Sarda Vs. State of Maharashtra reported in (1984)
4 SCC 116, no order of conviction and sentence would have been
passed against the Appellant. Hon'ble Apex Court in Para 143 to
145 of the said decision has held as follows:-
"143. Apart from the aforesaid comments there is one vital
defect in some of the circumstances mentioned above and
relied upon by the High Court, viz., circumstances Nos. 4, 5, 6,
8, 9, 11, 12, 13. 16 and 17. As these circumstances were not
put to the appellant in his statement under Section 313 of the
Criminal Procedure Code, 1973 they must be completely
excluded from consideration because the appellant did not
have any chance to explain them. This has been consistently
held by this Court as far back as 1953 where in the case of
Hate Singh Bhagat Singh v. State of Madhya Pradesh this
Court held that any circumstance in respect of which an
accused was not examined under Section 342 of the Criminal
Procedure Code cannot be used against him. Ever since this
decision, there is a catena of authorities of this Court
uniformly taking the view that unless the circumstance
appearing against an accused is put to him in his examination
under Section 342 of the old Code (corresponding to Section
313 of the Criminal Procedure Code, 1973), the same cannot
be used against him. In Shamu Balu Chaugule v. State of
// 6 //
Maharashtra this Court held thus: [SCC para 5, p. 440: SCC
(Cri) p. 58]
The fact that the appellant was said to be absconding,
not having been put to him under Section 342, Criminal
Procedure Code, could not be used against him.
xxx xxx xxx
145. It is not necessary for us to multiply authorities on this
point as this question now stands concluded by several
decisions of this Court. In this view of the matter, the
circumstances which were not put to the appellant in his
examination under Section 313 of the Criminal Procedure
Code, 1973 have to be completely excluded from
consideration."
4.4. It is contended that since Appellant basing on the sole
testimony of P.W. 3 was held guilty of the charges under Sec.
324 of the I.P.C. and was convicted accordingly, but since while
recording the statement of the Appellant under Sec. 313 Cr.P.C.,
the said circumstances was not put to the Appellant, in view of
the decision of the Hon'ble Apex Court as cited supra, the order
of conviction and sentence cannot sustain in the eye of law.
4.5. It is also contended that by virtue of the interim order passed
by this Court on 13.05.2005 Appellant is continuing on bail and
at no point of time he has mis-utilized the liberty. It is also
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contended that the Appellant was also in custody during trial for
certain period.
4.6. Making all these submissions learned counsel appearing for
the Appellant contended that the impugned order of conviction
and sentence passed vide the impugned judgment dtd.21.04.2005
needs interference of this Court.
5. Mr. C.K. Pradhan, learned Addl. Govt. Advocate on the other
hand while supporting the impugned Judgment placed reliance
on the testimony of P.W. 3. It is contended that since P.W. 3 who
happens to be the sole eye witness clearly implicated the
Appellant to have assaulted the deceased by way of an axe,
(M.O. I), in view of such clear statement of P.W. 3 so laid during
his cross-examination, the Appellant has been rightly convicted
under Sec. 324 of the Indian Penal Code.
5.1. It is also contended that on the face of such testimony of
P.W. 3, Appellant herein would have been convicted under
higher offences, but the learned trial Court by taking a lenient
view acquitted him from the charges under Sec. 302, 342, 109/34
of the I.P.C. and held him guilty of the offence under Sec. 324 of
// 8 //
the I.P.C. with an order to undergo R.I. for one year. It is
accordingly contended that the impugned judgment has been
rightly passed and it needs no interference.
6. Having heard learned counsel appearing for the Parties,
considering the submission made and after going through the
LCR, this Court finds that the present Appellant along with 2
other accused persons faced the trial for the offences under Sec.
302, 342, 109/34 of the I.P.C..
6.1. Since no materials were brought during trial supporting the
charge, all the accused persons including the present Appellant
were acquitted of the charges under Sec. 302, 342, 109/34 of the
I.P.C.. However, learned trial court placing reliance on the
testimony of P.W. 3 in his cross-examination held the Appellant
guilty of the charges under Sec. 324 of the I.P.C. and accordingly
sentenced him to undergo R.I. for one year.
6.2. However, since the Appellant during recording of his
statement under Sec. 313 Cr.P.C. was never put with any
question giving him a chance to explain the testimony of P.W. 3,
placing reliance on the decision in the case of Sharad
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Birdhichand Sarda as cited (supra), this Court is of the view that
in absence of such question being put to the Appellant during his
examination under Sec. 313 Cr.P.C., no order of conviction and
sentence could have been passed by holding the Appellant guilty
of the charges under Sec. 324 of the I.P.C..
6.3. Therefore, in view of such material irregularity which is
apparent on the face of the impugned judgment, this Court is
inclined to set aside the order of conviction and sentence passed
against the Appellant vide Judgment dtd.21.04.2005 in G.R. Case
No. 250 of 2002 (T.C. No. 42/2003). While allowing the appeal,
Appellant stands discharged from the bail bond so furnished by
him.
7. The appeal accordingly stands disposed of.
(BIRAJA PRASANNA SATAPATHY)
Judge
Orissa High Court, Cuttack
The 9th January, 2025/Sneha
Location: High Court of Orissa, Cuttack
