Orissa High Court
Danardan Naik And Another vs State Of Odisha on 31 July, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.306 of 2006
(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)
Danardan Naik and another ....... Appellants
-Versus-
State of Odisha ....... Respondent
For the Appellants : Mr. Samarendra Mohanty, Advocate
For the Respondent : Mr. Raj Bhusan Dash, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 24.07.2025 :: Date of Judgment: 31.07.2025
S.S. Mishra, J. The present Criminal Appeal, filed by the appellants
under Section 374(2) of the Cr. P.C., is directed against the judgment
and order dated 24.06.2006/06.07.2006 passed by the learned Special
Judge, Keonjhar in Special Case No.70 of 1999, whereby the appellants
were convicted for the offences under Sections 354/323/34 of I.P.C. and
they were sentenced to undergo R.I. for three months each for the
offence under Section 354 of I.P.C. and no separate sentence was passed
in lieu of their conviction under Section 323 of I.P.C.
2. Heard Mr. Samarendra Mohanty, learned counsel for the
appellants and Mr. Raj Bhusan Dash, learned Additional Standing
Counsel for the State.
3. The prosecution case in terse and brief is that the victim belonged
to Scheduled Tribe and the accused persons belonged to General Caste.
The incident occurred on 06.08.99. The victim had a betel shop in the
village. On the night of 06.08.99, the accused persons demanded betel
from the victim. When she refused to oblige them and closed the shop,
the accused persons entered into the house by forcibly opening the door,
and they dragged her, threw her on the ground, and assaulted her. They
also abused her in filthy language and threatened to kill her. When she
raised hullah, her mother and the tuition master reached there, and other
villagers also intervened and separated them. Due to the assault, she
sustained injury on her person. This incident was reported to the police,
and in due course, after completion of investigation and on commitment,
the accused persons were put to trial being charged
U/s.452/354/323/294/34 of the Indian Penal Code and Section 3(1)(xi) of
the S.C. & S.T. (PoA) Act .
4. Although the appellants stood charged for the offence punishable
under Sections 452/354/294/323/34 of I.P.C. read with Section 3(1)(xi)
of SC & ST (PoA) Act but the learned trial Court relying upon the
evidence of the prosecution particularly the evidence of P.Ws.4, 5 and 6
arrived at a conclusion that the appellants are guilty of offences
punishable under Sections 354/323 of I.P.C. In lieu of the conviction
under Section 354 of I.P.C., the appellants were sentenced to undergo
R.I. for three months, however, no separate sentence was awarded on the
count of conviction under Section 323 of I.P.C. The appellants have now
preferred the present appeal under Section 374(2) of Cr.P.C. assailing the
judgment of conviction and order of sentence dated
24.06.2006/06.07.2006 passed by the learned Special Judge, Keonjhar.
For ready reference, Section 374(2) of Cr.P.C. reads as under:-
―(2) Any person convicted on a trial held by a Sessions
Judge or an Additional Sessions Judge or on a trial held by
any other court in which a sentence of imprisonment for
more than seven years 2 [has been passed against him or
against any other person convicted at the same trial], may
appeal to the High Court‖
Reading of the above provision makes it clear that the present
appeal on the set of available facts is not maintainable. Even Section 376
of Cr.P.C. assumes relevancy to decide the maintainability of the present
appeal. Section 376 Cr.P.C. reads as under:-
―376. No appeal in petty cases.--Notwithstanding anything
contained in section 374, there shall be no appeal by a
convicted person in any of the following cases, namely:--
(a) where a High Court passes only a sentence of
imprisonment for a term not exceeding six months or of fine
not exceeding one thousand rupees, or of both such
imprisonment and fine;
(b) where a Court of Session or a Metropolitan Magistrate
passes only a sentence of imprisonment for a term not
exceeding three months or of fine not exceeding two
hundred rupees, or of both such imprisonment and fine;
(c) where a Magistrate of the first class passes only a
sentence of fine not exceeding one hundred rupees; or
(d) where, in a case tried summarily, a Magistrate
empowered to act under section 260 passes only a sentence
of fine not exceeding two hundred rupees:
Provided that an appeal may be brought against such
sentence if any other punishment is combined with it, but
such sentence shall not be appealable merely on the
ground--
(i) that the person convicted is ordered to furnish security
to keep the peace; or
(ii) that a direction for imprisonment in default of payment
of fine is included in the sentence; or
(iii) that more than one sentence of fine is passed in the
case, if the total amount of fine imposed does not exceed
the amount hereinbefore specified in respect of the case.‖
5. This Court is alive to the aforementioned statutory position of law.
However, taking into consideration the facts that the incident relates
back to the year 1999 and the trial went on for about seven years to only
end up on 06.07.2006 and the appeal had been pending since 2006
onwards, this Court is not inclined to knock out the appeal on the
technical ground as mentioned above particularly for the reasons that the
learned trial Court by a deep analysis of the evidence brought on record
has found the appellants guilty for the offences as mentioned above. The
analysis of the evidence is apparently reflecting in in paragraphs-6, 7 and
8 of the impugned judgment, which are reproduced hereunder:-
―6. P.Ws.1.2, and 3 denied to have any Knowledge
about the case. P.W.4 is the victim. She deposed that all the
accused persons came to her house at night and called her.
When she refused 'to sell `betel, the accused persons
quarrelled with her and dragged her from her house and
assaulted her. So she fell down. P.W.5, the mother of the
victim deposed, that by hearing hullah of her daughter, she
came out of the house and saw her daughter struggling and
3 persons assaulting her. As her eye sight was not good she
was not able to recognise them. P.W.6 deposed that by
hearing hullah he came out of the house and saw all the
accused persons assaulting the victim. He tried to save her
and separated them and he was also assaulted. P.W.7
deposed that he saw the accused persons quarrelling with
the victim and he intervened and separated them. P.W.8
deposed that he heard about the quarrel.
7. The evidence of P.Ws. 4, 5, and 6 revealed that the
accused persons dragged a woman at night and assaulted
her. All these witnesses stood the test of cross-examination
and nothing was elicited from them to discredit their
version. It is contended that the victim was not in good
terms with the accused persons and all the witnesses are
interested witnesses.
8. It is true that P.W.4 admitted that she also files
another case against the villagers and deposed in that case.
This shows that there was some misunderstanding between
the villager and the victim. It is well settled that enmity is a
double edged weapon and it can be used in either way. In
the decision reported in 2000(2) Crimes (SC)137 Suresh
Raj -Vs- State of Bihar, their lordships held that ―Enimiy,
undoubtedly, is a double-edged weapon; it may be a motive
for commission of crime; it may also be a motive for false
implication.‖ So enimity itself is not a ground to reject the
evidence. It is true that P.W.5 is the mother of the victim
and P.W.6 is the Tution Master employed by the victim
(P.W.4). But the related cannot be equated with
interestedness nor anything was brought out from p.w.6 to
show that he had any motive to implicate the accused
persons falsely. Marely because P.W.6 was working as a
Tution-master he cannot be treated as an interested
witness. Moreover, P.W.5 appears to be a truthful witness.
If she had any intention to depose falsehood, she could
have deposed that she saw the assault, but she frankly
deposed that she was not able to identify the persons as her
eye sight was poor and she only deposed about assault on
her daughter by three persons. The evidence of p.w.5 lends
full corroboration to the version of P.Ws.4 and 6. P.W.7
also supported the evidence of P.W.4 and his evidence
revealed that there was a quarrel between the accused
persons and the victim. So the evidence of P.Ws.4 to 7
taken together shows that the accused persons by dragging
the victim and assaulting her used criminal force to a
woman.‖
6. While analyzing the evidence on record, I find no reason to
disagree with the findings returned by the learned trial Court as has been
reproduced above. Hence, I affirm the conviction recorded against both
the appellants for the offences under Sections 354/323 of I.P.C.
However, coming to the quantum of sentence, it appears that the learned
trial Court has only awarded a sentence of three months of R.I. as against
the statutory provision mandating the Court to not only impose the
sentence but also the fine. That apart, on the count of the conviction
under Section 323 of I.P.C., no sentence is awarded. Therefore, this is a
case where while affirming the conviction, the sentence awarded by the
learned trial Court is liable to be varied. At this stage, Mr. Mohanty,
learned counsel for the appellants submitted that the appellants have
already undergone imprisonment of two days. Therefore, they may not
be sent back the custody to serve out the sentence at the belated stage.
The incident relates back to the year 1999. At that point in time, the
appellants were at their early 40s. At present both the appellants must be
in their late 60s. Therefore, sending them to custody at this stage would
definitely be harsh on them and detrimental to the entire family. Too
much have changed in between in regard to their social status and they
have already well integrated into the society. Therefore, I am inclined to
accede to the prayer made by Mr. Mohanty, learned counsel for the
appellants.
7. Accordingly, the sentence of three months R.I. awarded against
the appellants is reduced down to that of the custody they have already
undergone, however, I impose a fine of Rs.10,000/- (Rupees ten
thousand) each to the appellants, in default of payment of fine, they shall
undergo S.I. of one month. The fine amount to be deposited by the
appellants shall be disbursed to the victim in accordance with the
provisions of Section 357 Cr.P.C.
8. Hence, the CRLA is partly allowed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 31st of July 2025/ Ashok
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Location: High Court of Orissa
