Bhimsen Vs State

S.S. Mishra, J. Two appellants have conjointly filed the present Criminal Appeal challenging the judgment of conviction and order of sentence dated 15.05.1995 passed by the learned Additional Sessions Judge, Balangir in Sessions Case No.59/27 of 1994 (arising out of G.R. Case No.226 of 1992 committed by the S.D.J.M., Balangir) convicting the appellants for the offence punishable under Section 324/34 of the

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IPC and sentenced them to undergo R.I. for a period of six months each.

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2. The prosecution case, in brief, is that the cattle belonging to Kapileswar Padhan had damaged the groundnut crop of the informant, Haladhar Sahu. Consequently, the informant began driving the cattle toward the house of Kapileswar Padhan. On the way, he met Kapileswar and complained about the damage caused by his cattle. At that moment, the accused persons, namely Bhimsen Sahu and his son Binod Sahu, began abusing the informant. Hearing the commotion, the informant’s brother, Premananda Sahu, rushed to the spot. There, accused Bhimsen caught hold of Premananda with one hand and delivered two to three fist blows to his face, injuring his left eye. Bhimsen then called out to his son to bring a tabli to kill Premananda. Meanwhile, accused Kapileswar restrained the informant, preventing him from intervening. Soon after, Binod returned with the tabli and struck a blow on Premananda’s head. Following the assault, all the accused persons fled from the scene. After the incident, the matter was reported to the police, leading to the registration of the F.I.R.

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3. Initially, the prosecution set the criminal law into motion against three accused persons including the present appellants.

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4. After the charge sheet was filed, the charges were framed against all the accused persons for the alleged commission of the offences punishable under Sections 307/325/34 of the IPC.

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5. The case of the appellants is a complete denial. On the stance of the denial the appellants claimed trial and all the accused persons faced the trial.

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6. In order to establish the case, the prosecution examined nine witnesses. P.W.3 was the injured. P.W.4 is the brother of the injured and the informant in the present case. P.Ws.1, 2 and 5 are the independent witnesses to the occurrence whereas P.Ws.6 and 9 were the doctors, who have examined P.W.3. P.W.8 was the Investigating Officer of the case.

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7. The learned trial Court, by relying upon the evidences of P.Ws.3,

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4, 5, 6 and 9, arrived at the following findings:

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“8. Now let me examine the evidence on record if the aforesaid

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blow with tabli was an attempt to commit murder of Premananda Sahu. According to P.W.3 only one blow was given to his head with tabli. P.W.4 also corroborates P.W.3 by saying that Binod dealt a single tabli blow on the head of P.W.3. The doctor also noticed one injury on the head of P.W.3. The doctor deposed that the patient was semi-conscious. He did not depose that the condition of the patient was serious. He simply deposed that the patient was having severe vomiting and he referred him to the District Head-quarters Hospital, Balangir for further

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treatment and X-Ray of the skull. He did not opine that the injury was sufficient to cause death of the victim. According to doctor’s evidence, the injury was a lacerated one and the victim did not say that the blow was given on the sharp side of the weapon. The incident arose out of a quarrel on the issue of damage of crops by the cattles. In view of all these ingredients I am of opinion that prosecution has failed to prove the charge against the accused persons for offence u/s. 307 I.P.C. Similarly, prosecution has not proved that accused Kapileswar had any role in the crime. Therefore, I do not find him guilty of any of the offence leveled against him and acquit him thereunder.

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9. Hence, I find the accused Bhimsen and Binod guilty of offence u/s. 324/34 I.P.C. and convict them thereunder. Taking into consideration the nature and circumstances and age of the accused persons, I am reluctant to grant the benefit of Probation of Offenders Act to the accused persons.”

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8. The learned trial Court, while arriving at the aforementioned

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findings, recorded an acquittal in favour of the co-accused Kapileswar Padhan. However, convicted the present appellants for the offence punishable under Section 324/34 of the IPC and sentenced them to undergo R.I. for six months each.

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9. Being aggrieved by the aforementioned judgment of conviction and the order of sentence, the appellants have jointly filed the present appeal.

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10. On 10.07.2025, this Court directed the learned State counsel to

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obtain the status and the wellbeing of the appellants. The learned State

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counsel sought time on 31.07.2025, 19.08.2025 and 09.09.2025. Finally on 14.10.2025, submitted a report that the whereabouts of both the appellants could not be ascertained. The proceeding as referred to above indicates that the appellant no.1 at present is about 85 years of age whereas the appellant no.2 at present is about 55 years of age.

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11. Since, consistently, none had appeared for the appellants and the whereabouts of the appellants could not be ascertained, this Court requested Mr. Bijaya Kumar Ragada, learned Advocate, who was present in the Court, to assist the Court in the matter in the capacity of Amicus Curiae.

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12. Heard Mr. B.K. Ragada, learned Amicus Curiae appearing for the appellants and Mr. A.K. Apat, learned Additional Government Advocate appearing on behalf of the Respondent-State provided meaningful assistance.

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13 . Mr. Ragada, learned Amicus Curiae, at the outset, submitted that the incident had occurred on 19.04.1992 at 6 a.m. whereas the F.I.R. was registered on the next day, i.e., on 20.04.1992. The copy of the F.I.R. was despatched to the Magistrate on 22.04.1992, which was eventually

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received by the learned Magistrate on 25.04.1992. Both the I.Os. i.e. P.Ws. 7 and 8 have not made any attempt to explain the delay caused in forwarding the F.I.R. Apart from that, Mr. Ragada, learned Amicus Curiae has read out the evidence of the eye witnesses and pointed out that the version narrated by P.W.1 is completely contradictory to the version of the other witnesses.

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14. P.W.2, who is also an independent witness, has not supported the prosecution case. Therefore, the entire case of the prosecution hinges upon the testimony of P.Ws. 3, 4 and 5.

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15. P.W.3 in his statement has deposed that, two years back in the evening, accused Bhima picked up the quarrel with his brother. When he intervened in the matter and tried to pacify, at that point of time accused Bhima dealt a slap on the eyes and caught hold of him. Then he directed the accused Binod to bring the tabli and dealt a blow on his head. He sustained severe head injury and was treated in the hospital at Balangir.

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16. Similarly, P.W.4, who is the father of the injured and informant has stated that the incident had taken place on 19.04.1992 at about 5 p.m. in front of the cowshed of the accused Kapila Padhan. As the cattle of

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Kapileswar damaged the groundnut in the field, he had driven away the cattle. Out of anger, he hurled abusive words, as he could not tolerate the damage caused by the cattle. The accused Binod picked up quarrel. The other accused persons followed him. The accused persons caught hold of him, at that point of time, P.W.3 reached there and intervened in the matter and tried to pacify. At the instance of Bhimsen Sahu, accused Binod dealt a tabli blow on the head of P.W.3.

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17. P.W.5, another witness to the occurrence also gave the similar narration of the incident. However, the aforementioned narrative of the prosecution regarding the incident has been completely disowned by P.W.1.

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18. P.W.1 in his testimony has stated that all the accused persons in unison have given lathi blow on the head of P.W.3. The said witness sustained extensive cross-examination but he maintained his version.

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19. P.W.2 has also given a different narrative regarding the occurrence.

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20. P.Ws.6 and 9 are the doctors, who had examined the injured P.W.3. P.W.6 in his evidence has stated that on 19.04.1992, on the

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requisition of the police, he has examined P.W.3 and found one injury. He stated that he found one lacerated bleeding injury soiled with sand particles 3 c.m. x 1 C.M. x ½ c.m. on mid-scalp 2” away from the hair line. Opinion reserved. The patient was having severe vomiting and semi-conscious. He referred the injured to the DHH, Balangir for further examination and X-Ray of the Skull.

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P.W.9, who was the doctor, has stated in his evidence that he received requisition from the male surgical ward and conducted the X Ray examination of P.W.3. He had taken the X-Ray of the skull and the X-Ray report has been proved by Ext.5. However, neither the bed head tickets nor the X-Ray report has been exhibited and put on record.

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21. It is also apparent on record that the prosecution has not attempted to recover the weapon of the offence.

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22. The evidence of P.Ws.6 and 9 also indicates that they have not opined regarding the nature of the injuries sustained by P.W.3. Rather, P.W.9 in his testimony has deposed that he cannot say as to whether the fracture was simple or compound. This being the nature of the evidence,

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it is very difficult to elucidate as to whether the injury sustained by P.W.3 is simple injury or grievous one.

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23 . Conjoint reading of the evidence of P.Ws.3, 4 and 5 emanates one thing that is on the direction of the appellant no.1, appellant no.2 has given a blow on the head of P.W.3. What is the nature of the weapon used may be doubtful because of the evidence of P.Ws.1 and 2 coupled with the evidence of P.Ws.3, 4 and 5 particularly in the absence of recovery of the weapon of offence.

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24. Be that as it may, the fact remains when P.W.3 had sustained the

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injury on his head. The nature of the injury is not ascertainable from the record. That being the case, the reasoning recorded by the learned trial Court to convict the appellants for the offence under Section 324/34 of the IPC, may not sustain in scrutiny and on the basis of nature of the evidence.

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25. Therefore, I am of the considered view that on the basis of available evidence, the appellants are liable for the commission of offence punishable under Section 323/34 of the IPC. Accordingly, the conviction recorded by the learned trial Court for the offence under

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Section 324/34 of the IPC is deserved to be modified to that of the offence under Section 323 of the IPC.

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26. Mr. Ragada, learned Amicus Curiae, at this stage, submitted that from the record, it is ascertainable that at the time of the incident, the appellant no.1-Bhimsen Sahu was aged about 55 years. Therefore, at present, he must be about 85 years of age. Regarding his whereabouts and the status, it is not ascertainable as per the police report.

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27 . In so far as the appellant no.2 is concerned, he was aged about 25 years at the time of the incident. Therefore, he would be at present about 55 years of age. At the late evening of the life, sending the appellant No.1 to undergo further custody would be detrimental to the entire family members.

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28. The incident has occurred way back in the year 1992. By now, more than three decades have gone by. By this time, the appellants have already been well integrated in the society and leading a respectful life. When the case was registered against them for the offence under Section 307 of the IPC, they had surrendered themselves on 19.05.1992. They

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were enlarged on bail on 22.05.1992 and released on 23.05.1992. Therefore, they have undergone the custody for about five days.

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29. In view of the aforementioned facts and circumstances of the present case, Mr. Ragada, learned Amicus Curiae, submits that this is a fit case where this Court can treat the appellants under the Probation of Offenders Act.

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30. Regard being had to the nature of the offence and the age of the appellants and the fact that the incident relates back to the year 1992, the prayer made by Mr. Ragda, learned Amicus Curiae deserves merit.

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31. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing the appellants to suffer imprisonment at this belated stage, this Court directs the appellants to be released under Section 4 of the Probation of Offenders Act for a period of three months on their executing bond of Rs.5,000/- (Rupees Five Thousand) each within one month with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellants shall keep peace and good behavior and they shall remain under the supervision of

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the concerned Probation Officer during the aforementioned period of three months.

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32. With the above observation, the CRA is accordingly disposed of.

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33. This Court records appreciation of the meaningful and effective assistance rendered by Mr. Bijaya Kumar Ragada, learned Amicus Curiae. He is entitled to the honourarium of Rs.7,500/- (Rupees seven thousand five hundred) as a token of appreciation.

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The High Court of Orissa, Cuttack. Dated the 23^rd of October, 2025/ Subhasis Mohanty

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Signature Not Verified

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Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 31-Oct-2025 07:45:07

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Bhimsen v. State

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Bhimsen v. State

Case brief

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