Conviction under IPC sections 325 and 323 upheld due to consistent ocular and medical evidence, emphasizing the necessity for robust proof of participation in the crime.

JUDGMENT :

SIBO SANKAR MISHRA, J.

The appellants in the present appeal have assailed the judgment and order dated 02.05.1997 passed by the learned District and Sessions Judge, Ganjam-Gajapati, Berhampur in Sessions Case No. 354 of 1996, whereby the accused appellant, namely, Bhagaban Swain was convicted U/s.325 of the Indian Penal Code and was sentenced to undergo R.I. for a period of 2 (two) years and pay a fine of Rs.1,000/- I.D. to undergo R.I. for 6 (six) months and the accused appellant, namely, Bhima Swain was convicted U/s.323 of the Indian Penal Code and was sentenced to undergo R.I. for a period of 6 (six) months.

2. This appeal is pending since 1997. When the matter was taken up for hearing, consistently in many dates of hearing, nobody appeared for the appellants. Therefore, on 05.01.2024, Mr. Sougat Dash, who was present in Court, was entrusted to conduct this case, as Amicus Curiae.

3. Heard Mr. Sougat Dash, learned Amicus Curiae for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State.

4. The prosecution case may be briefly stated as follows. In village Khajapalli, there exists a tank known as “Bada Bandha”. On 10.05.1994 at about 6:00 P.M., one Kesab Swain, along with Bhagaban Swain, Kamaraju Bisoi, Lochan Swain (son of Kesab), and others, were bathing in the said tank. During this time, some water splashed by Lochan accidentally fell on accused Bhagaban Swain, who took strong exception to it, leading to an exchange of heated words and a brief scuffle. The situation was, however, pacified due to the intervention of Kesab Swain and Kamaraju Bisoi.

Shortly thereafter, one Gantei Dakua arrived at the tank to bathe. At that moment, accused Bhagaban Swain allegedly snatched Gantei’s Asha Badi (thenga) and struck a blow on the head of Lochan Swain. Accused Bahadur Swain is stated to have assaulted Kesab Swain with three blows of a thenga on his head. When Kesab fell to the ground, accused Bhima Swain allegedly joined the assault and dealt further blows to Kesab and Lochan. After the assault, accused Bhagaban, Bhima, and Bahadur Swain left the spot carrying their respective thengas.

The injured Kesab Swain and Lochan Swain were immediately carried home by Kamaraju Bisoi, Jaya Swain, and Indra Bisoi, and thereafter shifted to Polsara P.H.C. for treatment. Unfortunately, Kesab was declared dead by the attending doctor.

Upon receiving information regarding the admission of injured persons at Polsara P.H.C., the O.I.C., Kabisuryanagar Police Station (P.W.17), arrived at the hospital. At about 10:30 P.M., Kamaraju Bisoi orally reported the incident to him, which was reduced into writing and treated as the F.I.R. The same was forwarded to the Police Station for formal registration of the case. On that very night, the Investigating Officer examined the informant and other witnesses at the P.H.C.

On 11.05.1994, the Investigating Officer visited the place of occurrence, examined additional witnesses, and conducted inquest over the dead body of Kesab Swain at about 8:30 A.M. in presence of witnesses. The inquest report was marked as Ext.14. He seized one bamboo lathi (asha badi thenga, M.O.IV) produced by Gantei Dakua under seizure list Ext.20. Sample earth and blood-stained earth were seized from the spot under Ext.15. He further seized bamboo lathis thenga (M.Os. V, VI, VII) from the houses of accused Bahadur, Bhagaban, and Bhima Swain respectively, under seizure lists Exts.17 to 19.

The dead body of Kesab Swain was sent for post-mortem examination to the Medical Officer, Purusottampur Government Ho