Tankadhar Naik vs State Of Orissa .... Opp. Party
2025 Latest Caselaw 5860 Ori

Orissa High Court

Tankadhar Naik vs State Of Orissa .... Opp. Party on 30 May, 2025

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                             CRLREV No.293 of 2006

 From the judgment and order dated 01.12.2005 passed by the learned Addl.
 District Judge, Nuapada in Criminal Appeal No.13 of 2004 confirming the
 judgment and order dated 06.02.2004 passed by the learned J.M.F.C., Khariar in
 G.R. Case No.111 of 1997/T.R. No.309 of 1997.

         Tankadhar Naik                           .... Petitioner

                                      -versus-

         State of Orissa                          .... Opp. Party



 Advocates appeared in this case through Hybrid Mode:

            For Petitioner          : Mr. S.K.Tripathy, Advocate


            For Opp. Party          : Ms. Samapika Mishra, ASC


       CORAM:
            HON'BLE MISS JUSTICE SAVITRI RATHO

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

Date of Judgment : 30.05.2025 ..........................................................................................

Savitri Ratho, J. This revision has been filed challenging the judgment and

order dated 01.12.2005 passed by the learned Addl. District Judge,

Nuapada in Criminal Appeal No.13 of 2004 confirming the judgment and

order dated 06.02.2004 passed by the learned J.M.F.C., Khariar in G.R.

Case No.111 of 1997/T.R. No.309 of 1997 convicting the petitioner under

Sections 323 & 341 of the Indian Penal Code (in short "IPC") and

sentencing him to undergo S.I. for six months for the offence under Section

323 of IPC and to undergo S.I. for 15 days under Section 341 of IPC.

PROSECUTION CASE

2. The prosecution case in brief is that on 02.06.1997 at about 8.00

P.M. while the informant (P.W.1) was coming with a wooden beam (rafter)

for constructing his house, the petitioner restrained him and assaulted on

his head and back with a lathi causing bleeding injuries on his head and

swelling injury on his back. The incident was witnessed by one Dasmu

Naik and Ganesh Majhi. The informant lodged FIR and a case was

registered and investigation taken up by P.W.5 (I.O.). After completion of

investigation, police submitted charge-sheet against the petitioner under

Sections -341, 323, 294 of the I.P.C. .

DEFENCE PLEA

3. The plea of the defence was one of complete denial.

WITNESSES

4. The prosecution in order to prove its case has examined as many as

six witnesses. Out of whom P.W.1-Padma Naik is the informant. P.W.2-

Tularam Harijan is the independent and seizure witness, P.Ws. 3, 4 and 6,

namely, Dasmu Naik, Damodhar Bishi and Ganesh Majhi are the

independent witnesses. They did not support the prosecution case. P.W.5-

Trilochan Dash is the I.O. in the case.

5. P.W.1-Padma Naik, the informant has stated in his evidence by

corroborating the story of the FIR on the alleged date of occurrence while

he was coming with one beam for constructing his house which was fallen

in his share, on the way the petitioner obstructed him and assaulted him on

his head by a lathi resulting bleeding injury on his head and also dealt a

blow on his back causing swelling injury.

P.W.2-Tularam Harijan has supported the evidence of P.W.1 and

stated that he had seen that the informant sustained bleeding injury on his

head and the shirt was seized by the police in his presence as per Ext.2

which was stained with blood.

The evidence of P.Ws.1 and 2 had been corroborated by the

evidence of P.Ws. 3 and 4 who have stated that they had seen the bleeding

injury on the head of the informant on the alleged date of occurrence and

P.W.3 administered water to the informant at the time of occurrence. From

their evidence, it is clear that the informant sustained bleeding injury on his

head by the petitioner on the alleged date of occurrence.

P.W.5-Trilochan Dash is the I.O. in the case has also corroborated

the evidence of all the witnesses by stating that he seized blood-stained

shirt from the informant in presence of witness and also seized a wooden

lathi and sent the injured (P.W.1) for medical examination and after getting

the report submitted charge-sheet against the accused-petitioner.

As per the injury report, P.W.1 sustained injury on right side of

vertex 3 ½ x ½ x ½ cm simple in nature could be caused by hard and

blunt weapon and a bruise on the left side chest wall 6 x ½ cm caused by

hard and blunt weapon.

EXHIBITS

6. The prosecution exhibited three documents while the defence did

not have any exhibit. Ext. 1 is the FIR. Ext. 2 is the seizure list and Ext. 3 is

the injury requisition.

TRIAL COURT JUDGMENT

7. The learned Court below framed the following points for

determination :-

(i) Whether the accused on the alleged date, time and place had wrongfully restrained to the informant?

(ii) Whether the accused on the alleged date, time and place had abused the informant in obscene language causing annoyance to the informant near public place?

(iii) Whether the accused on the alleged date, time and place had caused hurt to the informant?

On an assessment of the evidence adduced by the prosecution, it

found that there was no material to convict the petitioner for the offence

under Section 294 of the IPC and acquitted him of the said charge. . But

found the petitioner guilty of the offences under Sections 341 & 323 of

the IPC and convicted him for commission of those offences and

sentenced him in the manner mentioned above.

APPELLATE COURT JUDGMENT

8. After examining the judgment of the learned trial court, the learned

Appellate Court confirmed the conviction of the petitioner under Sections

341 & 323 of the IPC and dismissed Criminal Appeal No 13 of 2004.

SUBMISSIONS

9. Challenging the impugned judgments, Mr.S.K.Tripathy, learned

counsel for the petitioner has submitted that:-

i) there is discrepancy in the evidence of the witnesses regarding the seizure of blood stained shirt and lathi and contradictions in their evidence;

ii) all the material objects have not been produced in Court and;

iii) the weapon of offence, namely, lathi has not been seized by the police during investigation;

iv) punishment prescribed for commission of offence under Section 323 of IPC is simple imprisonment up to one year or fine of Rs.1,000/- and the maximum punishment under Section 341 IPC is simple imprisonment of one month and fine of Rs.500/-, and as the petitioner has stayed in custody for 2-3 days and the injuries have been opined to be simple in nature and the incident took place on 02.06.1997 and almost 27 years have elapsed if the Court confirms

his conviction, the petitioner may not be sent back to custody after passage of so many years.

10. Ms. S.Mishra, learned Addl. Standing Counsel submits that the

ocular evidence of P.Ws. 1, 2, 3 and 4 is corroborated by the medical

evidence. The medical officer has not been examined but the injury report

has been exhibited as Ext.4. She submits that the injury report can be relied

upon even if the medical officer who issued it is not examined. In support

of her submission, she relies on the decision of the Patna High Court in the

case of Vyashmuni Dubey and others v. State of Bihar in Criminal

Appeal (SJ) No.282 of 2002 where the conviction of the two petitioners

under Section 323 of IPC was confirmed holding that the conviction can be

based on the oral testimony of the witnesses even in the absence of

evidence of the doctor and the injury report when there exists consistent

evidence that the injured was assaulted and sustained injury on his person.

STATUTORY PROVISION

11. The provisions of Sections 319, 323, 334, 340 and 341 of the I.P.C.,

which are relevant for deciding this Criminal Revision are extracted

below:-

"Section 319. Hurt.--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

Section 323. Punishment for voluntarily causing hurt.--

Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

Section 334. Voluntarily causing hurt on provocation.-- Whoever voluntarily causes hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.

Section 340. Wrongful confinement.--Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person. Illustrations (a) A causes Z to go within a walled space, and locks Z in Z. is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines Z. (b) A places men with firearms at the outlets of a building, and tells Z that they will fire at Z if Z attempts to leave the building. A wrongfully confines Z. Section 341. Punishment for wrongful restraint.--Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.

JUDICIAL PRONOUNCEMENTS

12. In the case of Laxman Singh v. State of Bihar : (2021 ) 9 SCC 191,

the Supreme Court has held that production of injury report is not the sine

qua non for establishing case under Section 323 IPC as causing injury is

not necessary as Section 319 of the IPC provides that whoever causes

bodily pain, disease or infirmity is guilty of causing "hurt". Hence causing

bodily pain is sufficient to make out the offence.

In the case of Vyashmuni Dubey (supra), the conviction of the two

petitioners under Section 323 of IPC was confirmed basing on the oral

testimony of the witnesses in the absence of evidence of the doctor and the

injury report, holding that when there exists consistent evidence that the

injured was assaulted and sustained injury on his person, injury report is

not necessary to be proved.

ANALYSIS AND CONCLUSION

13. After hearing the submissions of the learned counsel for the parties

and carefully perusing the judgments of the learned trial Court and

appellate Court and the evidence of the witnesses, I find that the

prosecution has been able to prove that while the P.W.1 the informant-

injured was coming from the land holding beam, the petitioner obstructed

him and assaulted him by means of a thenga causing bleeding injury on his

head and chest. I, therefore, do not find any reason to interfere with the

findings of the learned courts below as I am satisfied that the prosecution

has been able to establish the commission of offences under Sections 341

and 323 IPC by the petitioner.

14. As discussed above, non examination of the doctor who had

examined the informant-injured (P.W.1), cannot be a ground to set aside

the conviction of the petitioner under Section 323 IPC as that he sustained

bleeding injury, has been stated by the P.Ws.1 to 4 and corroborated by the

evidence of P.W.5, the I.O.

15. Hence, his conviction under Sections 323 and 341 IPC is

confirmed.

16. The incident took place about 28 years ago. The punishment

prescribed for voluntarily causing hurt is imprisonment for a term which

may extend to one year, or with a fine which may extend to one thousand

rupees, or with both. The punishment prescribed for the offence under

Section 341 IPC is maximum punishment of simple imprisonment for one

month or fine payment of fine up to Rs. 500/- or both. The petitioner had

remained in custody for at least two days during investigation. It would be

a travesty of justice to send back the petitioner to jail after so many years to

serve out the sentence imposed. So, I am inclined to modify the sentence.

In my considered view, the interest of justice would be served if the

sentence under Section 323 IPC is reduced / modified to the period

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

two months; and under Section 341 IPC to pay a fine of Rs. 500/-, in

default, to undergo S.I. for one month. If the fine amount is realized, the

same shall be paid to the injured on proper identification.

17. The Criminal Revision is dismissed with the above modification in

sentence.

18. The trial Court records be returned forthwith to the learned trial

court with a copy of this judgment after retaining a scanned copy of the

records.

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

(Savitri Ratho) Judge

Orissa High Court, Cuttack Dated, 30th May 2025 /RKS