Sarat Ch.Barik Vs State

S.S. Mishra, J. The present Criminal Appeal is filed by four appellants challenging the judgment of conviction and order of sentence dated 02.07.2007 passed by the learned Special Judge, Keonjhar in Special Case No.19 of 1999, whereby the learned trial Court has convicted the appellants for the alleged commission of the offence punishable under Section 323 of the IPC and sentenced them to undergo R.I. for six months each.

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2. Heard Mr. Ashreet Behera, learned counsel appearing on behalf of Mr. Manas Chand, learned counsel for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing Counsel appearing for the Respondent -State.

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3. The prosecution case in terse and brief is that the victiminformant belongs to the Scheduled Caste and the accused persons belong to the upper caste. The incident happened on 19.01.1999. On that date, the Revenue Inspector called the informant and her husband for demarcation of the land. The informant went to the spot and protested the Amin alleging that neither she nor her father-in-law sold the land. The accused persons, who were present there, abused the victim in filthy language and assaulted the victim by giving kicks. Hence, the F.I.R.

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4. Initially, the accused persons were charged for the alleged commission of the offences punishable under Sections 341/ 323/ 294/ 34 of the IPC read with Section 3(1)(x) of the S.C. & S.T. (PoA) Act. However, the accused-appellants were acquitted by the learned trial Court of the charges for the alleged commission of the offences punishable under Sections 341/294/34 of the IPC read with Section

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3(1)(x) of the S.C. & S.T. (PoA) Act. The learned trial Court, while acquitting the appellants of the aforementioned offences, has recorded the following findings, which read thus:

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“8. So far the evidence for offence u/s. 341/294 I.P.C. is concerned, P.W.1 only deposed that the accused persons abused her saying SALA, but P.Ws.2 and 4 the other witnesses have not deposed about the words uttered by the accused persons nor their evidence revealed that the incident occurred in a public place. The evidence also does not indicate that the accused persons restrained the victim nor the incident occurred on the basis of caste. Therefore, the evidence is not sufficient to attract Sec. 341, 294 I.P.C. and Section 3(1)(x) S.C. & S.T. (P.A.) Act.

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9. It is contended that non-examination of the I.O. is fatal to the prosecution case. The I.O. is generally examined to prove the contradictions or the fact he noticed at the time of spot visit. In this case nothing was put to the witnesses to the effect that they gave a different version before the I.O. In other words, no contradiction exists in the evidence of the witnesses. So the non-examination of the I.O. in no way affects the prosecution case. In the decision reported in 1994(2) Crimes, (Orissa) 1008 Ashok Kumar Jena-Vs-State, their Lordships held that “unless it is shown by the accused that he was prejudiced by the non-examination of the I.O., the prosecution case does not get affected”. Similar view has also been held by their Lordships in the decision reported in 2006(26) O.C.R. (SC) 891 Raj Kishore –Vs- State of Bihar.

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10. It is further contended that as per rule-7 the offence under sec.3 S.C. and S.T. Act has to be investigated by the officer of the rank of S.D.P.O. but in this case the S.I. of police conducted the investigation which is fatal to the prosecution case. It is true that in this case S.I. of police conducted the investigation and placed the charge-sheet. But it is not disputed that the S.I. of police is competent to investigate into offences under the Indian penal Code. In the decision reported in 2003(24) O.C.R. 135 Maheswar Panda Vs State, their Lordships held that “when the offences complained are both under the Indian Penal Code and any of

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the offence enumerated in Sec.3 of the Act, then the investigation which is being done by a competent police officer in accordance with the provisions of the Cr.P.C. cannot be and should not be quashed.” Similar view has also been held by their Lordships in the decision reported in 2005(31) O.C.R. 566 Sanjay Vs. State.”

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5. The State has not assailed the judgment of acquittal passed by

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the learned trial Court. Therefore, this Court need not venture into the evidence regarding the offence for which the appellants were acquitted. The appellants were convicted only of the charges for the commission of the offence punishable under Section 323 of the IPC.

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6. In the present case, the prosecution examined five witnesses. Surprisingly, the defence did not opt to cross-examination of any of the witnesses. The prosecution in the present case did not choose to examine the doctor or proving the medical evidence. The prosecution has also not examined the Investigating Officer of the case.

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7. P.W.4 was an injured witness in the case, who in his deposition has stated as under:

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“Sapani is my wife. The incident took place seven years back. I accompanied the Amin with Sapani to my land to demarcate the land. The accused persons went there and raised objection and the Amin went away. Thereafter, the accused persons assaulted to me and my wife. From the voice I am able to identify the accused persons. My wife also told me the said fact.”

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The defence declined to cross-examine the said injured witness.

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Similarly, P.W.1, who was another injured in the case, deposed

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as under:

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“I know all the accused. I am the informant. The incident took place about 7 years back at about 11 A.M. R.I. had come to our village to demarcate the land. I accompanied the Amin to the land. All the accused persons came there and Sarat threatened me by saying “SALA DHOBAKU KATIKI PHINGIDEBA”. Out of fear the Amin went away. Then all the accused persons assaulted me and my husband with stick and they tore my clothes and they abused us in filthy language. My husband was a blind man. Pravakar scribed the report on my instruction, read over and explained the contents to me and I gave my L.T.I. knowing the contents to be true. I was examined by doctor. I was Dhoba by caste and the accused persons belong to upper caste.”

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The said witness was also not subjected to any crossexamination by the defence.

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P.W.2 was the eye witness to the occurrence, who in his

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testimony has stated as under:

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“I know the accused and the victim. They are my covillagers. The incident took place seven years back at 11 A.M. While the Amin was demarcating the land, the accused persons went there and raised objection. All the accused persons assaulted to Sapani and her husband. The Amin went away. I accompanied Sapani to P.S. and Pravakar scribed the report on her instruction. Ext.1 is the said report.”

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This witness as well was not subjected to cross-examination by the defence.

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P.W.3 has declined to had seen the occurrence. Similarly, P.W.5 has also stated that he had not seen the occurrence.

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8. The prosecution has only exhibited the F.I.R. being Ext.1. The prosecution has neither examined the doctor nor proved the medical evidence/report and even not examined the Investigating Officer of the present case. On the face of the aforementioned nature of the evidence adduced by the prosecution, if the present case is examined, the prosecution evidence apparently fall short to complete the chain of event. The question arises in the present case is that in absence of establishing the evidence regarding the nature of the injury sustained by the injured whether the offence under Section 323 of the IPC is stated to be established on record.

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9. In this regard, the judgment of the High Court of Kerala at Ernakulam in the matter of Padmakumar vs. State of Kerala , reported in 2024:KER:81929 has some relevancy to be relied upon. Paragraph-18 of the said judgment reads thus:

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“18. Point No.3:- PW 2 has deposed before the court only to the effect that, the accused slapped on his cheek. He

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has not specifically stated that the above act of the accused has caused bodily pain, disease or infirmity to him. In this context it is also to be noted that PW3, the Assistant Surgeon, General hospital, Thiruvananthapuram, who had examined PW2 and issued Ext.P2 wound certificate has not seen any injuries on the body of PW2. In the absence of any evidence to prove that the act of the accused has caused bodily pain, disease or infirmity to PW2, it is to be held that the prosecution has not succeeded in proving that the act of the accused amounted to voluntarily causing hurt, as defined under section 321 IPC.”

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The High Court of Patna, while dealing with exactly similar

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facts in Criminal Appeal (SJ) No.92 of 2016 dated 21.10.2024, has

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taken a view in paragraph-9 of the judgment, which reads thus:

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“9. He further submits that all the eye-witnesses are close family members and they are interested witnesses and not reliable. He also submits that the statements of the prosecution witnesses projected as eye-witnesses are full of contradictions and discrepancies. He also submits that most importantly, the injury allegedly caused by the appellants has not been proved by the prosecution because the doctor, who examined the alleged victims, has not been examined by the prosecution. Hence, the injury could not be proved and for want of any proof regarding injury, the whole case of the prosecution fails not only under Section 307 but even under Section 323 of the Indian Penal Code. He also submits that even Investigating Officer of the case has not been examined causing prejudice to the appellants. Hence, whole case of the prosecution is doubtful and the appellants are entitled to get benefit of doubt.”

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10. Although the position of law in this regard is clear to the extent

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that production of injury report or proving the injury to establish the

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offence under Section 323 of the IPC is not a sine qua non for proving

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the case for the offence under Section 323 of the IPC blurring of

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evidence regarding the nature of injury is fatal for prosecution. Section 323 of the IPC is the punishable section for causing voluntarily hurt. “Hurt” is defined under Section 319 of the IPC. As per Section 319 IPC, whoever causes bodily pain, disease or infirmity to any person is said to have caused “hurt”. Although P.W.1 and P.W.4 have deposed that they were assaulted by the accused persons, but the nature of injury has not been established by the prosecution by leading appropriate evidence. Moreover, there are four accused persons, those who have faced the trial. None of the witnesses have specifically attributed anything against each accused-appellants. In absence of any specific evidence alleging overt act against each of the accused persons causing voluntarily hurt and in absence of the medical evidence, it is quite impossible to nail down the culpability of each accused for the alleged commission of the offence under Section 323 of the IPC. Therefore, the inevitable conclusion which could be drawn from reading of the oral evidence of all the five witnesses is that the prosecution could not prove the case individually against, each of the accused-appellants establishing their guilt of charges for commission of the offence punishable under Section 323 of the IPC.

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Hence, I am inclined to grant the benefit of doubt to all the accusedappellants.

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11. In view of the above, the judgment of conviction and order of sentence dated 02.07.2007 passed by the learned Special Judge, Kenjhar in Special Case No.19 of 1999 is set-aside. In the result, the appellants are acquitted and the bail bond furnished by them stands discharged.

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12. Accordingly, the Criminal Appeal is allowed and disposed of.

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The High Court of Orissa, Cuttack. Dated the 23^rd Day of December, 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: 23-Dec-2025 17:29:23 Page 9 of 9

Sarat Ch.Barik v. State

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Sarat Ch.Barik v. State

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