Orissa High Court
973) vs State Of Orissa on 31 July, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.242 of 1995
(In the matter of an appeal under Section 374 of the Code of Criminal Procedure,
1973)
Sahadev Karmi ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Mr. D.B. Rath, Amicus Curiae
For the Respondent : Ms. Suvalaxmi Devi, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 17.07.2025 : Date of Judgment: 31.07.2025
S.S. Mishra, J. The present Criminal Appeal is directed against the
Judgment of conviction and order of sentence dated 11.08.1995 passed
by the learned Sessions Judge-cum-Special Judge, Balangir-Sonepur,
Balangir in G.R. Case No.168 of 1993/T.R. No.2 of 1994, whereby the
sole appellant was convicted for the offence punishable under Section
323 of the Indian Penal Code read with Section 3(x)(i) of the SC & ST
(PoA) Act, 1989. On both the counts, the appellant was sentenced to
undergo R.I. for a period of six months and to pay fine of Rs.200/-
(Rupees two hundred), in default of payment of fine, to undergo R.I. for
a further period of one month for the offence under Section 3(x)(i) of the
SC & ST (PoA) Act and for the offence under Section 323 of the IPC,
the appellant was sentenced to undergo R.I. for a period of one month.
2. Mr. D.P. Rath, learned counsel has been engaged as Amicus
Curiae to represent the appellant by the Coordinate Bench of this Court.
He has appeared for the appellant and made the submission and for the
State, Ms. Suvalaxmi Devi, learned Additional Standing Counsel was
heard.
3. The prosecution set the criminal law into motion against the
appellant in pursuance to the F.I.R. on the allegation that on 20.09.1993
at about 6 P.M., P.W.2 Rajeswari Chhatar, who is the wife of P.W.1,
Gopinath Chhatar had been to fetch water from the village bank (tank).
At that time, the appellant was washing his buffaloes at the pond. When
he questioned the accused, he suddenly flared up and abused her by caste
Gonda and dragged her holding her hands. On hearing hulla, when her
husband came back to rescue and raised protest, the accused dealt a blow
on his forehead. On account of such assault, he fell down on the ground
and sustained bleeding injury. On the report of the informant (P.W.1),
Binka P.S. Case No.48 of 1993 was registered.
4. After investigation, the charge sheet was filed. The appellant was
charged of the offence punishable under Section 323 of the IPC read
with Section 3 (x) (i) of the SC & ST (PoA) Act and he was put to trial.
5. The prosecution examined as many as seven witnesses and
exhibited six documents. P.Ws. 1 and 2 are the two victims whereas
P.Ws. 3 and 4 are the two eye witnesses to the alleged incident. P.W.5
was the witness to the seizure list, which is exhibited as Ext.2 whereas
P.W.6 is the doctor, who had examined the victim and proved the injury
certificate as Ext.3 P.W.7 was the Investigating Officer.
6. Learned trial Court after taking into consideration the entire
evidence on record, found the appellant guilty of all the charges as has
been mentioned above and recorded the following findings:
"8. When P.W.2 the wife is the first victim, P.W.1 her
husband is the second. While supporting their case P.W.2
says that year before last on the day of Nuakhai at about
evening time when she had been to village Bandh to fetch
water, the accused was washing the buffaloes. When she
requested the accused to remove the buffaloes so that she
would take water, the accused flared up and abused her
attributing her as 'ganda' telling "GANDA MANANKARA
RUBAB BESI HOIGALANI" and dragged her holding her
hand. When hearing hulla her husband came to her rescue,
the accused dealt a blow on his forehead by means of a lathi.
On account of such assault her husband fell down on the
ground. P.W.1 her husband says in his evidence that on
20.9.93 at about 6.00 P.M. while he was in his shop located
by the side of Bandh he could hear the cry of his wife who
had been to fetch water to the Bandh. When he rushed to the
rescue of his wife, the accused dealt a blow with a lathi on
his forehead and on account of such assault he sustained
bleeding injury. Their evidence are amply supported by
P.W.3 and P.W.4. P.W.3 says in her evidence that by that
time she was in another Ghat of the Bandh where from she
saw that the accused was washing his buffaloes in the Ghat.
At that time P.W.2 went there to bring water and requested
the accused to remove the buffaloes so that she would take
water. But the accused got furious and abused her saying
"TUME GANDAMANE BADA UTPATA KARUCHHA" and
dragged P.W.2 holding her hand. When her husband came
to her rescue, the accused dealt a blow by means of a Merah
on his head who sustained bleeding injury on his forehead
and fell down on the ground. Similarly P.W.4 says that
during the relevant time he had been to the Bandh to attend
the call of nature when he found the accused dealt a blow by
means of a bamboo stick on the forehead of P.W.1 who
sustained bleeding injury and fell down on the ground.
P.W.6 the doctor who has medically examined P.W.1 says in
his evidence that he has noticed one lacerated injury 2-1/2"
x 1/2 " x 1/4 " on the upper part of the right side forehead
which is simple in nature and might have been caused by
blunt and hard substance.
9. The learned advocate for the accused challenging their
evidence draws the attention to certain discrepancies in their
evidence. According to him when P.W.1 in his cross-
examination says that the accused gave three blows on his
forehead by means of a bamboo lathi, P.Ws.2, 3 and 4 say in
their evidence that the accused had given only one blow on
the forehead of P.W.1. The doctor also found one injury on
his forehead of P.W.1. Again it is urged by the learned
advocate for the accused that when P.W.1 says that on
account of fall he sustained scratches on his back and there
was oozing of blood from those scratch marks but none of
the witnesses support such version of P.W.1 including the
doctor. When P.W.2 says in her cross-examination that
Merha was made of Kendu wood, P.Ws. 1, 3 and 4 say in
their evidence that it was a bamboo lathi. The said weapon
of offence is also not seized by the I.O. It is also stated by the
learned advocate for the accused that when it is the case of
the prosecution that the occurrence took place on the
embankment it is stated by P.W.3 in his cross-examination
that the occurrence took place inside the water of the Bandh.
The accused also dealt a blow on the head of P.W.1 inside
the water of the Bandh. It is not stated by P.W.3 before the
I.O. that the accused abused P.W.2 saying "TUME
GANDAMANE BAD UTPATA KARUCHHA". Barring these
discrepancies, definitely there is no other discrepancy in the
evidence of the witnesses. These discrepancies seem to be
minor in nature. Such minor discrepancies which are bound
to occur in the human testimony rather suggests that there is
no concoction nor tutoring to the witnesses before they
depose. P.Ws. 3 and 4 though are the caste men of the
victims, but are neither their relations nor they are any way
interested with them. True, during the relevant time there
was a 107 Cr. P.C. proceeding between the Sabarnas and
Harijans pending in the court, but it is not understood why a
female of tender age would come forward to foist a case
against the accused whom she had no personal enmity.
Above being the consideration when the evidence of the two
victims P.Ws. 1 and 2 are not only supported and
corroborated by the evidence of P.Ws. 3 and 4, but also by a
medical evidence, there is no way out than to believe that the
accused voluntarily caused hurt to P.W.1 and also dragged
P.W.2 holding her hand and abused her attributing as
'ganda' by caste."
7. I have carefully gone through the evidence on record and in the
light of the evidence, the findings recorded by the learned trial Court as
quoted above has been analysed.
8. On 20.09.1993, the F.I.R. was registered by P.W.1-Gopinath
Chhatar, which has been exhibited as Ext.1. In the F.I.R., he has stated
that on 20.09.1993 Monday, in the evening at about 6 P.M., his wife had
gone to the pond. While she was coming, she found that the appellant by
holding the hand of his wife was pulling. When he protested, he was
beaten by the accused by a lathi on his head. He thus requested the I.I.C.
of the Police Station to take action. In the F.I.R., except the allegation
that the appellant has given a lathi blow on his head, there was not a
single sentence written about the abuse being hurled by the appellant.
When the author of the F.I.R. i.e. P.W.1 stepped in to the witness box, he
has stated as follows:
"2. The occurrence took place on 20.9.93 at about 6.00
P.M. My wife had been to fetch water to our village bandh
(tank). The accused dragged her holding her hands. I was in
my shop house located by the side of bandh. There I could
hear the cry of my wife. When I rushed to rescue my wife, the
accused dealt a blow with a lathi on my forehead. I
sustained bleeding injury and I fell down on the ground.
3. On the very day of the occurrence at about 7.30 PM I
reported the matter at Binka P.S. I submitted a written
report. Ext.1 is the written report and Ext.1/1 is my
signature.
5. It is not a fact that the accused was helping Ganeswar
Selma in that litigation. It is a fact that 107 Cr. P.C.
proceeding was pending between Harijans and Sabarnas by
the time the occurrence took place. It is not a fact that there
was differences of opinion between the Harijanas and
Sabarna regarding the accommodation of a Mahila Samithi
in our village. It is not a fact that I had encroached a portion
of Bari land of the accused for which he has reported
against me before the police."
The said witness was also cross-examined. In the entire evidence, the said
witness has not stated anything regarding abuse to his wife in the name
of the caste by the appellant. However, P.W.2 in his testimony has
narrated the same incident as has been narrated by P.W.1 with an
addition that she was abused by the appellant by deposing as under:
"telling GANDA MANAKAR RUBAB BESI HOIGALANI and
dragged me holding my hand."
P.W.3 also corroborated the testimony of P.Ws. 1 and 2 in so far as the
assault part is concerned. Apart from that, in so far as the abuse hurled
by the appellant to P.W.1 is concerned, he has stated as under:
"TUME GANDA MANE BADA UTPAT HEUCHHA"
These witnesses have been extensively cross-examined by the defence.
But they remained consistent in so far as the incident of assault by the
appellant to P.W.1 is concerned. But in so far as the abuse is concerned,
their versions are contradictory. In the statement of the accused appellant
recorded under Section 313 of the Cr. P.C., the following question was
put to him, which reads as under:
"Q. No.6. It transpires from the evidence of P.Ws. 1, 2 and
3 that they are ganda by caste and it also transpires from the
evidence of P.Ws. 2 and 3 that you had abused P.W.2 saying
GANDA MANANKARA RUBAB BASI HOIGALANI etc. Do
you want to say anything in this case ?
The utterance of the appellant as narrated by P.Ws.2 and 3 was not
specifically put to the accused while reading the statement under Section
313 of the Cr. P.C.
9. Therefore, I am of the view that the part of the prosecution story in
so far as hurling abuse by taking the name of caste to P.W.2 by the
appellant creates a serious doubt. However, the testimony of all the
witnesses regarding the assault by the appellant on the head of P.W.1 by
a lathi is consistent and stands corroborated with the evidence of the
doctor, P.W.6, who in his testimony, has stated as follows:
"1. On 20.9.93 when I was continuing in the present post
on police requisition I had examined Gopinath Chhatria son
of Satya Chhatria of village Bisalpali and found the
following:
One lacerated injury size 2-1/2" x1/2" x1/4" present on
the upper part of the right side fore-head. It is simple in
nature and might have been caused by blunt and hard
weapon. The age of the injury is within 6 hours. Ext.3 is the
injury certificate. Ext.3/1 is the police requisition.
Cross-examination:
2. The injury can be caused by fall. It also can be caused
by dashing against a door frame"
10. Taking into consideration the afore-discussed evidence in its
entirety, I am of the considered view that the prosecution could
successfully prove the case beyond all reasonable doubt in so far as the
offence under Section 323 of the IPC is concerned. However, the
evidence falls short to prove the guilt of the appellant in so far as the
offence under Section 3 (x) (i) of the SC & ST (PoA) Act is concerned.
11. Therefore, the conviction of the appellant of the offence punishable
under Section 323 of the IPC as held by the learned trial Court is
confirmed. But the conviction recorded by the learned trial Court for the
offence under Section 3(x)(i) of the SC & ST (PoA) Act being not
proved by the prosecution beyond all reasonable doubt, stands set-aside
and the appellant is acquitted of the said charges.
12. In regard to the sentence awarded by the learned trial Court for the
alleged offence under Section 323 of the IPC that the R.I. for one month
is concerned, I am not inclined to interfere with the same.
13. Having said that, it is also found that the appellant was 21 years at
the time of the incident i.e. in the year 1993. Therefore, at present, he is
about 53 years old. He has a clean antecedent.
14. Mr. Rath, learned counsel from the record has pointed out that the
appellant was arrested on 21.09.1993 and was released on bail on
16.10.1993. Again he was arrested on 23.03.1995 and was released on
bail on 25.04.1995. After conviction, he was taken into custody on
11.08.1995 and was released on bail on 31.08.1995. Therefore, the
appellant has already undergone custody for a period about two and half
months.
15. In that view of the matter, since the appellant has already undergone
two and half months as against the sentence of one month as awarded by
the learned trial court for the offence under Section 323 of the IPC, he
has sufficiently undergone the sentence. Therefore, no further order with
regard to the sentence needs to be passed while affirming the conviction
under Section 323 of the IPC.
16. This Court acknowledges the effective and meaningful assistance
rendered by Mr. D.B. Rath, learned Amicus Curiae in this case. Learned
Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven
thousand five hundred) as a token of appreciation.
17. Accordingly, the Criminal Appeal is partly allowed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 31st July, 2025. Subhasis Mohanty.
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 01-Aug-2025 19:38:45
