Orissa High Court
Laxmidhar Swain And vs State Of Odisha on 14 October, 2025
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.63 of 2001
Laxmidhar Swain and ..... Appellants/
another Petitioners
Mr. D.Nayak, Senior
Advocate
-versus-
State of Odisha ..... Respondent/
Opp. Party
Mr. Jateswar Nayak,
Addl. Govt. Advocate
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
ORDER
14.10.2025
Order No.
I.A. No.1 of 2020
25. This matter is taken up through Hybrid arrangement
(video conferencing/physical mode).
This application has been filed for adducing additional
documentary evidence and to accept the statement of
Prasant Kumar Behera, who was examined as P.W.13 in
S.T. Case No.57 of 2002.
Mr. Dharanidhar Nayak, learned Senior Advocate
appearing for the petitioner submits that out of the four
persons, namely, Laxmidhar Swain (appellant no.1),
Subash Chandra Routray, Askhya Kumar Swain and Titu @
Deepak Kumar Mohanty (appellant no.2), who faced trial,
Akhya Kumar Swain and Subash Chandra Routray were
found not guilty for the offences under sections
302/404/34 of the Indian Penal Code and they were
acquitted. So far as the two appellants, namely, Laxmidhar
Swain and Titu @ Deepak Kumar Mohanty are concerned,
they were found guilty for the offence under section
302/34 of the Indian Penal Code and sentenced to undergo
rigorous imprisonment for life.
It is the further contention of learned Senior Advocate
that the conviction of the appellants is mainly based on the
evidence of the solitary eye witness-P.W.10 Prasant Kumar
Behera. He further submits that in this case, on completion
of investigation, charge sheet was submitted against not
only the four persons who faced trial in S.T. Case No.375
of 1999, but also against Bijan Kumar Parida @ Tania and
Naresh Kumar Baithalu @ Diga, who were the absconders
and subsequently taken into judicial custody and faced trial
in the Court of learned 2nd Addl. Sessions Judge, Cuttack in
S.T. Case No.57 of 2002 and vide judgment and order
dated 14.03.2003, they were acquitted of the charges
under sections 302/404/34 of the Indian Penal Code.
Mr. Nayak, learned Senior Advocate, further submits
that the said eyewitness, Prasant Kumar Behera (P.W.10),
was examined in the subsequent trial, i.e., S.T. Case No.
57 of 2002, as P.W.13. While deposing in the said case on
03.02.2003, he stated that he did not know anything about
the case and was accordingly declared hostile by the
prosecution. Not only was his previous statement given to
the police confronted, but his deposition as P.W.10 in S.T.
Case No. 375 of 1999 was also confronted to him by the
learned Public Prosecutor. According to Mr. Nayak, the
evidence of the sole eyewitness is very relevant for a just
decision of the case, and since, in the subsequent trial, the
witness has resiled from his earlier statement and stated
that he did not know anything about the case, such
evidence ought to be accepted as additional evidence in
the interest of justice.
In support of such contention, the order dated
03.05.2024 passed in I.A. No.1036 of 2024 in DSREF No.1
of 2021 and CRLA No.750 of 2021 was placed before us.
This petition has been filed under the provisions of
391 of Cr.P.C., which reads as under:-
"391. Appellate Court may take further evidence or
direct it to be taken.--(1) In dealing with any appeal
under this Chapter, the Appellate Court, if it thinks
additional evidence to be necessary, shall record its
reasons and may either take such evidence itself, or
direct it to be taken by a Magistrate or, when the
Appellate Court is a High Court, by a Court of Session
or a Magistrate. (2) When the additional evidence is
taken by the Court of Session or the Magistrate, it or
he shall certify such evidence to the Appellate Court,
and such Court shall thereupon proceed to dispose of
the appeal. (3) The accused or his pleader shall have
the right to be present when the additional evidence is
taken. (4) The taking of evidence under this section
shall be subject to the provisions of Chapter XXIII, as
if it were an inquiry".
Upon perusing the order dated 03.05.2024, placed by
Mr. Nayak, learned Senior Advocate, we find that the
application filed by the appellants under Section 391 of the
Cr.P.C. was allowed for recording the additional evidence of
Melita Sabar (P.W.1), the informant in that case, by way of
further cross-examination. The question mentioned in the
questionnaire was also permitted to be put to P.W.1. This
was considered necessary because the statement earlier
made by P.W.1 before the Principal Magistrate, Juvenile
Justice Board, Rayagada, in connection with a juvenile,
Jamsu Sabar, differed from what she deposed upon recall
on 02.03.2020, and the learned defence counsel had been
unable to confront her with the statement made on
14.11.2017.
In the present case, however, the situation is entirely
different. P.W.10 was examined on 02.08.2000, whereas,
in the subsequent trial, he was examined as P.W.13 on
03.02.2003. The latter is a subsequent statement, not a
prior one.
Section 145 of the Evidence Act clearly states about
the cross examination as to the previous statements in
writing. It states that a witness may be cross-examined as
to the previous statements made by him in writing or
reduced to writing, and relevant to the matters in question,
without such writing being shown to him, or being proved.
However, if it is intended to contradict him by such writing,
his attention must first be drawn to those specific parts of
the writing which are to be used for the purpose of
contradicting him, before the writing can be proved.
Section 155 of the Evidence Act, which deals with
impeaching the credit of a witness, further provides that
the credit of a witness may be impeached inter alia by
proof of the former statements inconsistent with any part
of his evidence, which is liable to be contradicted.
Therefore, the prayer that has been made in this
interim application to accept a subsequent statement of
the sole eye witness which was given on 03.02.2003 as
P.W.13 in which the witness has not supported the
prosecution case, in our considered opinion, cannot be
allowed.
Accordingly, Interim Application stands rejected.
( S.K. Sahoo)
Judge
(Chittaranjan Dash)
Judge
26. List this matter on 23.10.2025 under the heading for
„hearing‟.
( S.K. Sahoo)
Judge
(Chittaranjan Dash)
Judge
Pravakar
Location: HIGH COURT OF ORISSA, CUTTACK
