THE HIGH COURT OF ORISSA AT CUTTACK CRA No.238 of 1999 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) (1) Nakula Goudo (2) Bobi Gouda @ Rabi Goudo ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Smruti Ranjan Dash, Amicus Curiae For the Respondent : Ms. Sarita Moharana, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 03.02.2026 :: Date of Judgment: 12.02.2026 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants are directed against the judgment and order dated 20.09.1999 passed by the learned District & Sessions Judge, Ganjam-Gajapati in Sessions Case No.213 of 1998, whereby the appellants have been convicted for the offences under Sections 325/34 of I.P.C. and on that count, they are p. 2 sentenced to undergo R.I. for two years and to pay a fine of Rs.1,000/- each, in default, to undergo R.I. for six months each. 2. The present appeal has been pending since 1999. When the matter was called for hearing, consistently none appeared for the appellants. Therefore, this Court requested Mr. Smruti Ranjan Dash, learned counsel, who was present in Court to assist the Court as Amicus Curiae. He has readily accepted the same and after obtaining entire record, assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Mr. Dash, learned Amicus Curiae. 3. Heard Mr. Smruti Ranjan Dash, learned Amicus Curiae for the appellants and Ms. Sarita Moharana, learned Additional Standing Counsel for the State. 4. The prosecution case, in brief, is that on 07.04.1998 in the evening, the accused persons came to the house of the informant Bhika Naik (P.W.4) at village Chakundapalli, armed with lathies and a kati, and challenged the informant and his father as to why they had become prosecution witnesses in the case of Mochia Goudo. The accused persons abused the informant and his father in obscene language and assaulted p. 3 them with lathies. When Narsu Naik (P.W.3), the father of the informant, was being assaulted, the mother of the informant intervened and lay over her husband in an attempt to save him, whereupon the accused persons dealt lathi blows on the old lady. Seeing the murderous assault on his parents, the informant and his wife protested, but they too were attacked. The wife of the informant sustained kati blows on her left hand, while the informant was assaulted with lathies. On hearing the commotion, some villagers rushed to the spot, upon which the accused persons fled away. The parents of the informant were immediately shifted to Bhanjanagar Hospital, where, after some time, the informant’s mother Budhubari Naik succumbed to her injuries. Narsu Naik remained hospitalized for a considerable period of time and ultimately survived with a deformed limb. The informant and his wife were also medically examined and treated for their injuries. On the basis of the report lodged by the informant, the police took up investigation and, on completion thereof, submitted charge-sheet against the accused persons for the offences punishable under Sections 452/304/307/325/324/323/34 of I.P.C. read with Section 3(1)(x) of the SC & ST (PoA) Act. On the p. 4 stance of complete denial and claim of trial, the appellants were put to trial after framing of charges. 5. The prosecution in order to prove its case examined nine witnesses. Out of whom, P.W.4 is the informant, P.W.3 is the father of the informant, P.W.2 is the wife of the informant. P.Ws. 1 and 5 were the neighbours of the informant. P.W.6 was the doctor, who conducted postmortem examination on the dead body of Budhubari Naik on police requisition, P.W.7 was the another doctor, who examined injured persons Basanti Naik, Narsu Naik, Bhika Naik and Budhubari Naik on police requisition. P.W.9 was the police officer, who conducted investigation and P.W.8 was the police officer, who ultimately took charge from P.W.9 and submitted the charge-sheet. Besides the oral evidence, the prosecution also proved several documents, like, F.I.R, seizure lists, inquest report, P.M. report, injury reports, querry of the I.O. and reply thereto, forwarding report to the R.F.S.L. statements of the accused persons etc. The defence examined one witness i.e. D.W.1, but did not produce any document. Page 5 of 15 6. Although initially the appellants were charged under Sections 452/304/307/325/324/323/34 of I.P.C. read with Section 3(1)(x) of the SC & ST (PoA) Act, however, the learned trial Court after analyzing the entire evidences of the prosecution have arrived at a conclusion that the prosecution has failed to prove the charges under Sections 304/307/323/324/452/34 of I.P.C. read with Section 3(1)(x) of the SC & ST (PoA) Act rather the appellants have been held guilty of the offences under Sections 325/34 of I.P.C. For convenience of ready reference, the relevant part of the said judgment is reproduced:- “19. It is said by P.Ws3 and 4 that the accused persons abused them saying “PANO MAGIA” etc but this statement has not been corroborated by P.W.1 or P.W.5 who are alleged neighbours and independent witnesses. P.Ws.1 to 4, however, unanimously say that the accused persons dealt lathi blows to Narsu Naik causing injuries to him and this part of the allegation has been duly substantiated by the medical evidence, ocular evidence and circumstantial evidence. But, here again, evidence is wanting to show that the accused persons attacked Narsu Naik by actuated by any caste feeling or with the intention of humiliating Narsu Naik in public view. It is rather apparent from the statement of P.Ws.1 to 4 that because Narsu Naik and his son became prosecution witnesses against Mochia Goudo, the p. 6 accused persons assaulted him as a measure of personal revenge. Such personal vendetta without any caste feeling or without any intention to humiliate the schedule caste people does not come within the ambit of sec. 3(1)(x) of SC/ST (P.A) Act. Therefore, in my opinion, the offence u/s. 3(1)(x) of SC/ST (P.A.) Act has also not been established by the prosecution. 20. Summing up the entire evidence and circumstance, I find that the prosecution has failed to prove the charges u/s. 304/307/323/324/452/34 I.P.C. and sec. 3(1)(x) of SC/ST (P.A.) Act. So, I hold the accused persons not guilty of these charges and acquit them under the provisions of sec. 248(1) Cr.P.C. The prosecution, has however, successfully proved the charge u/s. 325/34 I.P.C. against the accused persons guilty of the said charge and convict them thereunder.” 7. The learned trial Court, upon evaluating the ocular and medical evidence, found significant inconsistencies regarding the alleged assault on P.Ws. 2 and 4. While some prosecution witnesses claimed that the accused persons dealt lathi blows causing injuries, these assertions were not uniformly supported across witness testimonies, the FIR, and medical evidence. The doctor’s findings indicated additional injuries on P.W.2’s thigh and leg which were not spoken of by the eyewitnesses, and P.W.4’s medical injuries did not fully correspond with his version of p. 7 receiving only one lathi blow. Owing to these material contradictions and evidentiary omissions, the Court held that the prosecution failed to establish beyond reasonable doubt that the accused inflicted injuries on P.Ws. 2 and 4. However, with respect to the assault on Narsu Naik, the Court found consistency and corroborative evidence from eyewitnesses, documentary records, and medical testimony establishing that he sustained fracture injuries due to lathi blows by the accused persons. Since fracture constitutes grievous hurt, the Court held the accused liable for the offence punishable under Section 325 read with Section 34 IPC. Relevant part of the said judgment is reproduced hereunder for convenience of ready reference:- “9. P.Ws. 2 to 4 say that the accused persons dealt lathi blows on Narsu Naik, Budhubari Naik causing injuries to them and when they (P.Ws. 2 to 4) protested, the accused persons attacked them. They say that accused Nakula dealt a kati blow on the left hand of P.W.2 near the elbow causing incised wound. P.Ws. 1 and 3 do not say about the kati blow on the hand of P.W.2 and about any lathi blow on P.W.4. P.W.2 does not say about any lathi blow on her husband. In the F.I.R. also P.W.4 has not mentioned that he received any lathi blow from the accused persons. The doctor P.W.7 says that on 7.4.98 he examined P.W.2 on police requisition and p. 8 found incised injury on her left hand, bruises on her left thigh and left leg and that those injuries were 6 to 12 hours old. Neither P.W.2 nor P.W.4 say that the accused persons ever assaulted on the leg or thigh of P.W.2. The doctor P.W.7 also says that on the same day he examined P.W. 4 on police requisition and found one haematoma on the left hand, swelling on the right hand and that those injuries were within six hours old. P.W. 4 does not say that he received two lathi blows. According to him, he received only one lathi blow. So, although the injuries on the person of P.Ws. 2 and 4 has been established, the oral evidence, the medical reports, and the F.I.R. do not agree with each other about the moment of assault and exhibit glaring contradictions. With such contradictions and lacuna, one cannot possibly accept beyond reasonable doubt that the accused persons inflicted injuries on P.Ws. 2 and 4. 10. Regarding the attack on Narsu Naik, P.Ws, 1 to 4 clearly say that the accused persons dealt lathi blows on the right hand and right leg of Narsu causing injuries to the old man. The version of these witnesses find clear support from the F.I.R. Ext.3. The evidence of the doctor, P.W.7 also indicate that while examining Narsu he found fracture on the right hand, right leg and some injuries on the left hand. So, substantial support is also available from the medical evidence. The ocular witnesses have not spoken about the blows on the left hand of Narsu Naik, but such omissions are possible when indiscriminate attack took place. The evidence on record, therefore, clearly establish that Narsu Naik sustained fracture and other injuries on his person as a result of the Iathi blows p. 9 inflicted by the accused persons. Fracture is undoubtedly a grievous injury and so the accused parsons could be liable for offence u/s. 325/34 I.P.C.” 8. Being aggrieved by the findings as recorded above leading to the judgment of conviction and order of sentence passed by the learned District & Sessions Judge, Ganjam, the present appeal has been preferred by the appellants. 9. In this case, P.Ws.2, 3, 4 and 5 are the injured witnesses. P.W.2 in her deposition has stated that while she, her husband, mother-in-law and father-in-law were sitting together, at that point of time, the accused persons entered into the house and challenged her father-in-law saying that why he had become a witness in the case of Mochi Naik. She further deposed that the appellant No.1 (Nakula Goudo) was armed with a kati whereas the appellant No.2 (Boby Gouda) was armed with a lathi. Both the accused persons abused them by taking the name of their caste, uttering the words “Pano Magia Sale Sakhi Padichha”. Thereafter, the appellant No.2 dealt a lathi blow on the right hand and right leg of Narsu (father-in-law), as a result of which, he fell down on the ground. She p. 10 further deposed that when her mother-in-law intervened to save Narsu, the appellant No.1 assaulted her with a lathi blow on her back and also kicked her abdomen, causing her to collapse and become unconscious. P.W.2 has further deposed that appellant No.1 thereafter dealt a kati blow on her left hand above the elbow, causing a bleeding injury, following which the accused persons fled away from the spot. Similarly, P.W.3, who is also an injured witness, has narrated the incident somewhat similar to that of the narration made by P.W.2. He has deposed that the accused Bobi dealt a lathi blow on his right forearm and another blow on his right leg, as a result of which, he fell down on the ground. At that point, her wife, Budhubari, came forward to rescue him, whereupon she was assaulted by the accused Nakula with a lathi and was also kicked on her abdomen, as a consequence of which she collapsed and became unconscious. P.W.4 is another injured witness, who is the informant in the present case. He has deposed that the accused persons armed with lathi and kati came inside the house and started assaulting the family p. 11 members. This witness attributed the assault and overt act exactly in the similar manner as that of the other eye witnesses. The testimony of these witnesses directly stood corroborated with the testimony of the doctor, who has examined the injured witnesses. P.W.7, the doctor found the injuries on P.Ws.2, 4 and 5 were simple in nature, whereas the nature of injury sustained by the P.W.3 could not be ascertained by him, rather he deposed that it could not be determined whether the injury sustained by P.W.3 was a fracture injury or not, hence, the injured was referred to the Surgery Specialist. The injury report has been exhibited as Ext.7. The prosecution has failed to bring on record any evidence to suggest that the injury sustained by P.W.3 was grievous in nature. The prosecution has not placed on record either the x-ray or the evidence of the specialist to whom P.W.7 referred for treatment of P.W.3. Therefore, from the evidence of P.W.7, the nature of injury caused to P.W.3 cannot be elucidated or ascertained, whereas the nature of injury to P.Ws.2, 4 and 5 are definitely simple in nature. Page 12 of 15 P.W.6 is another doctor who performs the postmortem examination of the deceased Budhubari Naik. He in his deposition has opined that the death was natural one and not a homicidal. The postmortem report was exhibited as Ext.4. Therefore, the learned trial Court acquitted the appellants of the charges of Section 304/307 of I.P.C. 10. Taking into consideration the evidence of all the witnesses and other materials on record, the learned trial Court held the present appellants guilty for the offence under Section 325/34 of I.P.C. However, evaluating the nature of evidence procured by the prosecution particularly the evidence of the eye witnesses i.e. P.Ws.2, 3, 4 and 5 read with the evidence of the doctor (P.W.7) and the medical report (Ext.7), it is evidently clear that the nature of injury sustained by the injured witnesses were simple in nature. However, it is also eminently clear from the evidence that the accused-appellants had used dangerous weapons to cause such injuries to the victim. Therefore, it leads to an inevitable conclusion that the appellants are liable for the offence under Section 324/34 of I.P.C. Hence, they are entitled to acquittal of the p. 13 charges of Section 325/34 of I.P.C. and are convicted under Section 324/34 of I.P.C. In view of the recording of the conviction of the appellants as mentioned above, the sentence imposed by the learned trial Court calls for modification. The learned trial Court while convicting the appellants for the offence under Sections 325/34 of I.P.C., sentenced them to undergo R.I. for two years with a fine of Rs.1,000/-, in default, to undergo R.I. for six months. Accordingly, the impugned judgment and order dated 20.09.1999 passed by the learned District & Sessions Judge, Ganjam, Gajapati is modified to that of Section 324/34 of I.P.C. from Section 325/34 of I.P.C. 11. At this stage, Mr. Dash, learned Amicus Curiae appearing for the appellants, submitted that the incident relates back to the year 1999, at which point the appellant No.1 was about 50 years of age and the appellant No.2 was 20 years of age. At present, the appellant No.1 is aged about 77 years and the appellant No.2 is aged about 47 years. He also submitted that the appellants were arrested on 08.04.1998 and released on bail on 17.11.1998. Therefore, the appellants have already undergone incarceration for a period of 223 days i.e. seven months p. 14 fourteen days. Over the years, they have led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating them after such a long delay, it is argued, would serve little penological purpose and may in fact be counter-productive, casting a needless stigma not only upon them but also upon their family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, in the fitness of the situation, a lenient view should be taken and the sentence of the appellants should be reduced to that of the period they have already undergone. 12. The contention raised by Mr. Dash, learned Amicus Curiae for the appellants, is not seriously controverted by the learned counsel for the State. Otherwise, the submission made by Mr. Dash, deserves attention in view of the fact that the present appeal itself has been pending since last more than two decades. 13. Taking into account the entire circumstances of the case, and the gravity of the offence, the age of the appellants, I consider it an appropriate case to modify the sentence. Hence, the sentence of two p. 15 years is accordingly modified. The appellants are sentenced to undergo R.I. for a period of one year each and to pay a fine of Rs.1,000/- (Rupees one thousand) each, in default of payment of the fine amount, to undergo R.I. for a further period of three months each. The period the appellants have already undergone shall be set off from the substantive sentence. 14. Accordingly, the CRA is partly allowed. 15. This Court acknowledges the effective and meaningful assistance rendered by Mr. Smruti Ranjan Dash, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 12th February, 2026/ Swarna Designation: Senior Stenographer