Orissa High Court

Babula Alias Lakhi Alias vs State Of Odisha on 7 March, 2025

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

   IN THE HIGH COURT OF ORISSA AT CUTTACK
                  CRA NO.338 of 1995

   In the matter of an application under Section 374(2) of Cr.P.C,1973

                                ..................

  Babula alias Lakhi alias              ....                   Appellant
  Lakhmi Ray
                                -versus-

  State of Odisha                       ....              Respondent



        For Appellant            :   M/s. B.M. Pattanaik, Adv.
        For Respondent           :   M/s. P.K. Panda,
                                     Addl. Standing Counsel

PRESENT:


        THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY

   -----------------------------------------------------------------------
   Date of Hearing:07.03.2025 and Date of Judgment: 07.03.2025
   -----------------------------------------------------------------------------

   Biraja Prasanna Satapathy, J.

1. This matter is taken up through Hybrid Mode.

2. Heard learned counsel for the parties.

3. The present appeal has been filed inter alia challenging

the order of conviction and sentence passed against the

appellant by the Additional Sessions Judge, Balangir vide

judgment dt.25.11.1995 in Sessions Case No.53/22 of 1994.

// 2 //

4. The Prosecution story as narrated in the F.I.R reads

as follows:

2. That the alleged prosecution case in brief is that on 12.04.1993 at 7.00 P.M when the informant, Sri Jagadish Dalbeher was standing in front of a shop called Pawan Brothers, along with his friends Himanshu Behera, Susil Das, Biswadev Patel and Aswin Barik, the victim, the appellant/accused has called Aswin Barik, who went to him. Then the appellant/accused brought out one khupudi and stabbed in the belly of Aswain Barik. All the friends of Aswini rushed to the spot, they were prevented by other accused persons and Aswini fell down in the grounds sustaining bleeding injury. Thereafter Aswini was removed to Hospital and information was lodged at the Police Station, Bolangir Twon Police registered P.S. Case NO.60/93 in the Court of the S.D.J.M., Bolangir and the police took investigation. After completioin fo the investigation, charge sheet was submitted to the S.D.J.M., Bolangir and thereafter the case was committed to the Court of Sessions and the said G.R. Case No.53/22 of 1994.

5. It is contended that after commitment of the matter,

the appellant faced trial for the offence under Section 324

of the Indian Penal Code. The Prosecution in order to

prove its case examined as many as 6 nos. of witnesses

and the defence on its part examined one witness.

6. While assailing the impugned judgment, learned

counsel appearing on behalf of the appellant contended

that since in order to prove the allegation, the prosecution

never examined a single independent witness who were

present on the place of occurrence, basing on the evidence

available on record, no order of conviction and sentence

could have been passed .

// 3 //

6.1. It is also contended that witnesses named in the

F.I.R were also never examined by the prosecution. It is

also contended that taking into account the evidence of

P.Ws.4 & 5 and P.W. 4 having not given any opinion

regarding the nature of injury and so also P.W.5, the order

of conviction and sentence could not have been passed.

The evidence of P.Ws.4 & 5 reads as follows:

P.W.4. On 12th April, 1993 I was in the emerge of Dist. Headquarter Hospital at about 8 p.M. At that hour, I examined one Aswini Pasayat, S/o-Basanta Pasayat of Radharanipada, Bolangir on Police requisition. I found the following injuries.

1. Incised wound with active bleeding of the size 2" x 1" over lower abdomen 4"

above from the symphosis public slightly to the right from the midline, Omentum (covering of the intestine was protruding out of that wound.

2. Incised would with active bleeding of size 1"x1" skin would was narrow then upper lower of the would. It has present over left posterior auxillery line 2" below the left goster margin lower margin of the fax horadic bonyuge)., There was active bleeding from this would.

Injury No.1 appears to be the point of entry and the injury No.2 was appearing as point of exist of a weapon of offence. The age of injuries were within 3 hours of my examination. These injuries might have been caused by hard and sharp weapon. I reserved my opinion about the nature of the injuries (whether simple or grievous). The patient was referred to V.S.B. Medical College, Burla for further treatment. The weapon of offence must be a long and shapt setting. Ext. 3 is my report and Ext.3/1 is my signature.

Cross-Examination. The case of infliction of any injury with a shart cutting weapon baging both the edges sharp with a pointed tip, the margins wil be clean cut but they cannot be exactly parallel but slightly elliptical. It is not a fact that both the margins wsill be parallel.

// 4 //

Unless a particular weapon is produced, I cannot give my definite opinion about what sort of margins that sharp cutting weapon can produced after an infliction. It is all wayhs not possible to cause raggedness and bruise by infliction of nay injury with sharp cutting weapon having one blunt edge and another sharp eduge. It d epend upon the thickness of the blunt edge. I do not agree with the suggestion in accordance with the Modi's jurisprudence that in all cases an instrument having o0ne cutting and one blunt edge, will show a certain amlunt of bruising and reggedness at one end of the wound (The Doctor volunteers that it depends upon to a thickness of the blunt edge). The injuries are not possible if the assailant stands just in front of the victim and refers the weapon with a 90 angle to the exact place of injury NO.1. The injuries are not possible if one falls on a pointed from rod.

P.W.5- I was Asst. Professor of Surgery of V.S.S. Medical Colelge, Burla since 28th October, 90 to 03.11.1993. I have served for last 28 years as a Doctor. I am working in the department of Surgery since 1972. I cannot say without verifying the record if any case was referred to V.S.S Medical Colege, Burla on 12.4.1993. I do not have my report in this record (the witness verified the record and answered). I do not remember if the I.O examined me in this case. Without referring to operating findings I cannot give any opinion if injuries in Ext.3 were simple or grievous (witness referred to Ext.3 and answered).

6.2. It is accordingly contended that since the

prosecution in order to prove its case never examined any

independent witness and the Doctor who examined the

injured, since never gave any opinion with regard to the

nature of injury and its cause, order of conviction and

sentence passed vide the impugned judgment is not

sustainable in the eye of law.

7. Mr. P.K. Panda, learned Standing Counsel on the

other hand while supporting the impugned judgment

contended that taking into account the evidence of P.Ws.2

// 5 //

& 3, allegation made against the present appellant was

proved and basing on such statement of P.Ws. 2 & 3,

learned Trial Court held the appellant guilty of the offence

and convicted and sentenced him for the offence under

Section 324 of the Indian Penal Code. Evidence of P.Ws 2

& 3 reads as follows:

P.W.2 in his evidence has stated as follows:

1. I know Aswini Barik, who is my friend and victim of this case. I know these accused persons. This occurrence took place on 12.4.93 at 7 p.m. I myself, P.W.1, Sushil Das, Biswadev Patel, and Aswini Barik were talking in front of the shop called "Pawan Brothers at 7 p.m. where this occurrence took place. When we were talking, Babula came and called Aswini Barik, who went to him(Babula). The other two accused persons caught hold Aswini and said MARI DIO MARI DIO. Then Babula brought out a Gupti and stabbed to the to the belly of Aswini, When we were going near Aswini, Rajin and Omprakash caught hold me and others and Babula pulled out the Gupti and ran away. Other two accused persons also fled away. We shifted Aswini to hospital. Due to stabbing the Gupti pierced through the belly and punctured at the back. I went to the police station from hospital and lodged F.I.R. This is that F.I.R. vide Ext.2 and Ext.2/1 is my signature. Electric light was illuminating the area, for which we could see the incident well.

2. To my knowledge, Babula has 3 brothers. I know their names. One police staff had written the F.I.R.. Again says: I myself has scribed the F.I.R.. (When Ext.2 was confronted to the witness) . It is a fact that I have not mentioned the name of Omprakash in the F.I.R.. since he could not recollect his name at the time of scribing the F.I.R.. It is a fact that I have not

// 6 //

mentioned in Ext. 2. that my memory did not serve to furnish the name of the other brother of Babula. I don't know if Pawan Brothers cloth store has any other godown nearby. I did not mark if there was any verandah in front of the shop called Pawan Brothers. I myself and Sushil Das met other 3 friends accidently in front of Pawan Brothers, but we had not gone together to that spot.

3. It is a fact that there was a quarrel in between Aswini and Babula previously, but I cannot say if the same was on the preceding Friday of the occurrence. I don't remember if I stated to I.O. that the quarrel was on a preceding Friday. It is a fact that 'I stated to I.O. (1) that Babula gave two slaps to Aswini on that occasion (2) that we went to the house of Babula to ask him the reason of his giving slaps. (3) that we could not meet Babula in his house. I did not ascertain from Aswini as to why Babula gave him slaps. I cannot say any reason as to why I did not ascertain the fact. It is not a fact that I myself and Aswini were going together to a tank near the house of Babula and were teasing the girls namely Manorama Nanda and the sister of Babula and other girls while taking bath in the tank. It is not a fact that it was our hobby to go there and to pass remarks to the girls while taking bath, or while doing other domestic works. It is not a fact that for the said reason Babula was objecting us. It is not a fact that we had gone to the house of Babula to assault him in the preceding Friday. It is not a fact that accused Rajin pacified us on the preceding Friday and we returned. It is not a fact that the busti people were also against us for our nasty comments to the girls of the locality. It is not a fact that on the date of occurrence we stabbed to the head of Babula when he came for shopping was returning from his footpath shop.

4. It is a fact that I did not state in the F.I.R. that other 2 accused persons caught hold Aswini and said MARI DIO MÁRI DIO. I don't recollect if I have not stated the aforesaid fact

// 7 //

to the I.O. It is a fact that I have not stated to the I.O the name of Omprakash as a participant in the occurrence. The blade of the gupti was having two sharp edges. The tip of the gupti was sharp and pointed. Babula called Aswini towards north side of the shop called Pawan Brothers. Babula called Aswini from a distance of 7 to 8 cubits and Aswini travelled the distance and reached Babula. Aswini did not shout after being assaulted. Again says: He shouted after the blow. We the remaining 4 friends were close to each other at that time when Aswini received the blow and shouted. Aswini shouted EA MAA MARIGALI. I myself and Sushil rushed first towards the victim after hearing the shout. There was another quarrel in between Babula and Aswini regarding purchase of pen. I was present at the time of return of the pen and the quarrel. This quarrel regarding return of pen was much earlier to the second incident. At that time there was power cut, but light was there. It is a fact that I did not state in the F. I.R. that electric light was illuminating the area, for which I could see the incident.

5. It is not a fact that 3 or 4 days after the incident when mother and sister of Babula were returning from the hospital, we passed obscene remarks to them and the matter was reported at the P.S.. It is not a fact that the residents of Narsingh temple compound were afraid of we the 5 friends, but Babula get courage to protest. It is not a fact that we the friends with a Gupti and assaulted Babula on the date of occurrence which caused head injury to Babula. It is not a fact that I don't have any engagements in any business.

6. I came to know Babula only on the date of return of pen. That pen incident took place about 15 to 20 days earlier to this occurrence.. The quarrel between Aswini and Babula took place earlier to that pen incident. I have seen the house of Babula. We went to the house of Babula from the side of tank. His house is near

// 8 //

a baniyan tree but I can't say whether it is the campus of Narsingh temple or not. I cannot say after crossing how many houses the house of Babula will come if somebody approaches from tank side. Even approximately I cannot say. The tank is on two sides of Narsingh temple. Some Sindhi and Oriya families are residing within Narsingh temple campus. The main gate of Narsingh temple compound faces the tank. There are cement steps from that main gate down to the tank. There cemented benches on both the sides of the steps. The height of the cement bench is about one and half feet. It is not a fact that I myself and my friends use to sit on those cement benches and pass remarks to the girls and ladies while they were taking bath. It is not a fact that on 9.4.93, I myself and Aswini passed ugly remarks to Manorama Nanda and the sister of Babula who were taking bath in the tank.. It is not a fact that Babula protested and we threatened him and returned. It is not a fact that in the same evening we went to his house in a group to assault him, but we could not find him in the house. It is not a fact that : we threatened Rajin, his mother and sister and misbehaved them and demanded to produce Babula.

7. It is not a fact that on the evening of 11.4.93 Himansu and Aswini met Babula near his house who asked them not to tease the girls for which they threatened him and came back. It is not a fact that on 12.4.93 we in a body went to the shop of Pawan Brothers and attacked Babula in a group being armed with lathies and Aswini was armed with a knife. It is not a fact that when Aswini was stabbing to the chest of accused Babula, the latter caught hold the hand of Aswini and the knife struck the head of. Babula. It is not a fact that Babula was treated in the Govt. hospital for his injury. It is not a fact that at the time of assault by Aswini, we have also assaulted Babula with lathies. It is not a fact that hearing the hulla, the busti people chased us and Babula escaped at that moment, to save himself.

// 9 //

8. The house of Babula is at a distance of 40 to 50 meters away from the said tank. The shop of Fawan Brothers is also at equal distance from the house of Babula. The shop called Pawan Brothers will be on the right side, if some body comes from the house of Babula on the road in between the tank and the Narsingh temple.

9. There are many shops on the eastern/side of Pawan Brothers. Similarly there are also other shops in the compound of Narsingh temple. The breadth of the garden in front of Pawan Brothers is about 7 to 7½ feet. The length of the garden is about 13 to 15 feet. The garden was fenced all around with iron bars. I did not mark if the iron bars are with sharp pointed ends similar to the tip end of Gupti The main road runs by the side of the park and that is a busy road. There isa rickshaw stand by the side of the park.

10. When accused Babulal stabbed front to front, other two accused persons were holding him from both the sides. I did not mark if blood stains were available on the ground where Aswini was stabbed. The Gupti punctured at the right side back after piercing from the front side. Babula stabbed straight horizontally. The length of the Gupti was one cubit and I cannot say whether the Gupti had any handle or not because the accused ran away with the same. The breadth of the blade is approximately one inch. The breadh is same along in its length. Aswini was facing towards North when he received the stab blow. I do not recollect in which side who caught hold Aswini (out of the rest two accused persons) Rajin, caught hold me when I was rushing towards Aswini. Sushil Das was also rushing along with me towards Aswini. I can't say who caught hold him. I cannot say what my other 3 friends were doing when we rushed towards Aswini and I was caught hold. I did not see my other 3 friends where Aswini was lying. I had seen those 3 friends in the hospital. I myself and Sushil carried Aswini to hospital in a rickshaw. Other 3 friends reached hospital immediately

// 10 //

thereafter. Aswini fell down on the ground, face upwards. The distance between the edge of the verandah of Pawan Brothers' to the park is about 8 to, 9 feet. Aswini was lying on the ground in north-south direction. His head was towards the shop Pawan Brothers. There is no hole in M.O-I. (the witness verified M.O-I and answered). The witness volunteers that Aswini had not worn M.O-I at the time of occurrence. Aswini was wearing a brownish light colour shirt and one check full pant. The wearing shirt and pant of Aswini were stained with blood. I don't find those pant and shirt in the court.

11. I cannot say the number of the rickshaw nor the name of rickshaw puller, in whose rickshaw we shifted the injured. I was not examined by the police. I don't recollect if I have not stated to I.O. that about shifting of the injured in a rickshaw to the hospital, with my assistance. The duration period in between the call of Babula to Aswini to the time of his escape from the spot is about 5 to 6 minutes; we must have reached hospital within 10. minutes i.e., at about 7.15 p.m. Then we reached P.S at about 7.30 and submitted report. Frequently we were visiting that are to take tea by the side of the shop, called Pawan Brothers.

12. I don't recollect if I have not stated to I.O that we the 5 friends were talking in front of Pawan Brothers. It is a fact that I stated to I.O. that the pen incident took place to the preceding Saturday of the occurrence.

13. The shopkeepers of the nearby place were witnessing this occurrence. Excepting I myself and Sushil, no one came near Aswini where he was lying injured. It is not a fact that to tease the girls was our regular feature and Babula was always protesting for which we were threatening him at his residence and ultimately assaulted him on the date of occurrence, with knife. It is not a fact that Babula did not stab Aswini with a Gupti. There is a counter case against me for assault to Babula on the same date and at the same place.

// 11 //

P.W. 3 in his evidence has stated as follows:

P.W.3. I know the accused persons by name. The accused persons reside in Narasingh Mandir area. O 12.04.1993, this occurrence took place at 7 p.m. I myself, Susil Das, Himansu Behera, Biswadev Patel, and Jagdish Dalbehera were standing in cront of Pawan-

Brothers, a cloth store. Thats cloth store is in front of the Narasingh Mandir. Accused Laxmi Ray came and called me waiving his hands saying 'Eaade Aatare. When I went near him, other 2 accused persons caught hod my hands (one to each hand). Rajin Ray and Omprakash said Mar Saleke, Mar Salake. Thereafter, Babula brought out a gupti from his waist and said to finish me completely and pierced that Gupti to my belly which made a punctured would at my back by piercing through. I sustained bleeding injury and blood stains drenched my wearing shirt and pant. I fell down on the ground. My friends came near me, but the accused Babulal threaten them not to come near, least they would be killed and saying so he also brandished gupti. Babulal drew gupti from my belly and ran away with other accused persons holding the same.

To Court : Whether accused Babulal had drawn out the gupti before he threatened to your friends not to approach him or he had shown another gupti to them?

Ans : Accused Babulal had drawn out gupti from my belly and had brandished the same threatening my friends who were coming near me.

I was lifted to a cycle and then taken to hospital in that cycle. Doctor examined me. Doctor referred me to Burla hospital saying that my condition

// 12 //

was serious. My two bother accompanied me to V.S.S. Medical College, Burla. I was treated there for 18 days.

2. Police seized my wearing apparels from Bolangir hospital in which blood stains were available.

3. I was examined by police at Balangir Hospital. It is fact that I did not state to I.O that I myself and 4 of my friends were standing in front of Pawan Brothers. It is not a fact that I did not state to I.C that accused Laxmi Ray called me by waiving his hands and saying Eaade Aathc. It is a fact that I did not state to I.O that Rajin an Omprakash caught hold my hands(one each) and said Mar Salake, Mar Salake and that Babulal brought out one Gupti from his waist and said to finish me completely and he pierced that Gupti in my belly which punctured and piereced although to the back; and that I sustained bleeding injury. It is a fact that I did not state to I.O. that when my friends approached me, accused Babulal threatened them brandishing the gupti not to come near least they would be killed. It is a fact that I did not state to I.O that Babulala pulled out the gupti from my belly and ran away along with other accused persons and that Jajadish Dalbehera carried me to Hospital in a cycle; and that doctor referred me to V.S.S. Medical College, Burla opining that my coordination was serious; and that I was treated at Burla for 18 days;

and that police babu seized my wearing apparels.

4. Babula has 3 brothers. I know all of them. I came to know them only on the date of occurrence. It is a fact that one case is pending against me in this Court with certain allegations. It is a fact that it was alleged in that case that I

// 13 //

commented the sister of Babula and assaulted him, which is false. It is not a fac that Omprakash was at Raipur at the time of occurrence and was not available at the spot. It is not a fact that Omprakash was residing in a Hotel of Raipur with the name Payal from 11.04.1993 to 15.04.1993. It is not a fact that he met with an accident while going in a rickshaw at Raipur and was treated by a doctor of Raipur for receiving injuries due to the accident. It is not a fact that there was no such occurrence and this case was foisted for counter allegations.

7.1. It is contended that since the injured suffered

the injury because of the assault made by the present

appellant by way of a weapon i.e. Gupti and the appellant

stabbed the injured on his belly, no illegality or irregularity

can be found with the impugned judgment.

7.2. It is also contended that P.Ws.2 & 3 did not

dare to prevent the present appellant from committing the

offence, as the appellant was armed with a long knife. It is

contended that taking into account the uncorroborated

statement of P.Ws.2 & which has not been disproved by

the defence while cross-examining those two witnesses,

learned Trial Court relying on the evidence of P.Ws.2 & 3

held the appellant guilty of the charges for the offence

under Section 324 of the I.P.C and sentenced him

accordingly.

// 14 //

7.3. It is also contended that opinion of the P.Ws.4

& 5 has got no applicability as in his examination in chief

both P.Ws.4 & 5 clearly held that injuries might have been

caused by hard and sharp weapon.

8. To the submission made by the learned Addl.

Standing Counsel, learned counsel for the appellant

contended that since the appellant is a first time offender

and the offence is of the year 1993, taking into account

the report submitted by the Probationary Officer as

directed by this Court, appellant be extended with the

benefit of the provisions of Probation of Offenders Act, if at

all this Court upheld the order of conviction and sentence

passed against the appellant.

9. Having heard learned counsel for the parties and

considering the submissions made, this Court finds that

basing on the F.I.R lodged on 12.04.1993, the prosecution

case was set into motion. The present appellant faced trial

for the offence under Section 324 of the Indian Penal

Code. As found, the prosecution in order to prove the

allegation against the present appellant examined as many

as 6 witnesses.

9.1. This Court after going through the evidence so led by

the prosecution, more particularly that of P.Ws.2 & 3 and

// 15 //

the statement of the Doctor P.Ws.4 & 5, is of the view that

the prosecution has made out a case against the appellant

for the offence under Section 324 of the Indian Penal

Code. Accordingly, this Court finds no illegality or

irregularity on the part of the learned trial Court in

convicting and sentencing the appellant for the offence

under Section 324 of the Indian Penal Code and is not

inclined to interfere with the same.

9.2. However, considering the fact that the incident is of

the year 1993 and the appellants is continuing on bail

since 19.12.1995, this Court placing reliance on the report

submitted by the Probationary Officer in terms of the order

passed by this Court, is inclined to direct for release of the

appellant under the provisions of the Probation of

Offenders Act.

9.3. Accordingly, this Court directs the appellant to

surrender before the Court in seisin within a period of 4

(four) weeks from today and on such surrender before the

learned Court in seisin, the appellant be extended with the

benefit of release under the provisions of Probation of

Offenders Act.

// 16 //

9.4. The CRA accordingly stands disposed of.

(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 7th March, 2025/sangita

Reason: authentication of order Location: high court of orissa, cuttack Date: 27-Mar-2025 12:06:01