Orissa High Court
Dinabandhu Dehury vs State Of Odisha on 21 August, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRA No.02 of 1998
An appeal from the judgment and order dated 19.12.1997
passed by the Addl. Sessions Judge, Khurda in S.T. No.45/475
45/475 of
1996.
---------------------
1. Dinabandhu Dehury
2. Sridhar Behera
3. Tikina Pradhan @ Tikam Pradhan
4. Gouranga Pradhan
5. Gagan Pradhan
6. Madhab Behera ....... Appellant
Appellants
-Versus-
State of Odisha ....... Respondent
For Appellant
Appellant: - Mr. Devashis Panda
Advocate
Forr Respondent
Respondent: - Mr. Jateswar Nayak
Addl. Govt. Advocate
---------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE
BLE MR. JUSTICE CHITTARANJAN DASH
-----------------------------------------------------------
------------------------------------------------------------------
-------------
Date of Hearing:: 05.08.2025 Date of Judgment: 21.08.2025
.08.2025
-----------------------------------------------------------
------------------------------------------------------------------
-------------
S.K. Sahoo, J. A trivial incident of passing lewd comments to a girl
during video show in the village followed by protest by the family
members of the girl escalated into an uncalled for tragic scenario
of murder of girl's father
father.. Glaring examples are there in scripture
when the game of dice and subsequent humiliation of Draupadi
stood out as a pivotal incident that irre
irrevocably
vocably set the stage for
Kurukshetra War.
ar. It is crucial to discern which minor
disagreements have the potential to escalate so that it can be
addressed early
arly which would prevent them from snowballing into
more significant conflicts or resentment, impacting relationships
or broader social systems.
The appellants Dinabandhu Dehury (A-1),, Sridhar
Behera (A-2), Tikina Pradhan @ Tikam Pradhan (A-3), Gouranga
Pradhan (A-4), Gagan Pradhan (A-5) and Madhab Behera (A-6)
along with Raja @ Rajkishore Dehuri preferred this appeal,
however during pendency of the appeal, Raja @ Rajkishore
Dehuri expired and as such, as per order dated 18.12.2000, the
Criminal Appeal has been directed to be abated in respect of the
said appellant.. Thus
Thus, this Criminal Appeal survives only in
respect of six appellants,
appellant namely, Dinabandhu Dehury (A-1),
Sridhar Behera (A-2)
2), Tikina Pradhan @ Tikam Pradhan (A-3),
Gouranga Pradhan (A-4), Gagan Pradhan (A-5) and Madhab
Behera (A-6).
The appellants along with others, all total sixty four
accused persons faced trial in the Court of learned Addl. Sessions
Judge, Khurda in S.T. No.45/475 of 1996 for commission of
offences under sections
section 147, 148, 337/149 and 302/149
/149 of the
Indian Penal Code (hereinafter 'I.P.C.') on the accusation that on
24.08.1994 at about 8.00 a.m. at village Tandalo under Begunia
police station, they were the members of unlawful assembly and
committed the offence of rioting being
being armed with deadly
weapons and in prosecution of the common object, they pelted
brickbats so rashly and negligently as to endanger human life
and thereby caused hurt to Ramesh Naik (P.W.6), Madhu Behera
(P.W.15) and one Akhaya Kumar Panda and also committed
murder of Jadumani Behera (hereafter 'the deceased') by
intentionally causing his death.
Further, A-1 Dinabandhu Dehury, A-2
2 Sridhar
Behera, A-3 Tikina Pradhan @ Tikam Pradhan, A-4 Gouranga
Pradhan, A-5 Gagan Pradhan and A-6 Madhab Behera along with
accused Tiki Naik and Raja Kishore Dehury (since dead) were
charged for the offence under section 302 of I.P.C. for assaulting
and committing murder of the deceased by intentionally causing
his death and were further charged for commission of th
the
offence punishable
unishable under section 337 of I.P.C. for causing hurt to
Ramesh
h Naik (P.W.6), Madhu Behera (P.W.15) and one Akhaya
Kumar Panda by pelting brick
brickbats
bats so rashly and negligently so as
to endanger human life
lif and personal safety of others.
The learned trial Court vide impugned judgment and
order dated 19.12.1997,
19.12.1997 while acquitting the other accused
persons of all the charges as aforesaid,
aforesaid found A-1 Dinabandhu
Dehury, A-2 Sridhar Behera, A-3 Tikina Pradhan @ Tikam
Pradhan, A-4 Gouranga Pradhan, A-5 Gagan Pradhan and A-6
Madhab Behera and Raja Kishore Dehury (since dead) guilty
under sections 147, 148, 302/149 of the I.P.C. and sentenced
each of them to undergo rigorous imprisonment for life for the
offence under section 302/149 of the I.P.C., but no separate
sentence has been awarded for the offences under sections 147
and 148 of the I.P.C.
Prosecution Case:
2. The prosecution case, as per the first information
report (hereinafter 'the F.I.R.') (Ext.1) lodged by Madhu Behera
(P.W.15), in short, is that on 22.08.1994 at about 8.00 p.m.,
some children of the village Tandal Bada Sahi were arranging a
video show near a mandap and Basanti Behera (P.W.10),, who is
the daughter of the deceased and also niece of P.W.15 along
with other children was witnessing
tnessing the same. During such video
v
show, A-1 passed some lewd comments to P.W.10 for which
P.W.10 left the place of video
v show and came to report the
matter to P.W.13 Mathura Behera, the younger brother of
P.W.15, who in turn
urn informed it to the father of A-1
1 and asked
him to settle the matter. Accordingly, in the evening hours on
23.08.1994, a meeting was convened to settle the matter,
matter but
due to quarrel between A-1
A and P.W.13,, the matter could not be
resolved, rather the people
p of Bada Sahi threw brick bats
towards the basti of the informant (P.W.15). It is further stated
in the F.I.R. that on that
th very night, the people of Adivasi
asi Sahi,
Tandal Sabarna Sahi, Nua Sahi and Kachera convened a meeting
and on the next day morning i.e. on 24.08.1994 at about 8.00
a.m., the people of all those
th four basti (slum) including th
the
accused persons being armed with deadly weapons like Farsa,
Kanta, Katari etc. formed an unlawful assembly,, came to the
basti of P.W.15,, demolished and rransacked
ansacked the houses of P.W.15
and other persons of their basti and assaulted basti people with
the weapons of offence with which they were armed with. Seeing
the aggressive mood of the accused persons, the deceased out
of fear
ear fled away from his house and took shelter in the house of
Pandari Naik (P.W.3) by bolting the door from inside. However
accused Bidyadhar Sahu of village Kachera detected the
presence of deceased in
inside the house of P.W.3 and informed it
to the other accused persons
persons.. Some of the accused persons
forcibly entered into the house of P.W.3 being armed with
weapons and took the deceased to the nearby paddy field and
assaulted him with weapons and after committing murder, they
threw his dead body in the paddy field.
field It is also
lso stated that at
the time of such assault, A
A-1 and A-2 were armed with
h Katari,
A-3 with Tangia, A--4 with Farsa, A-5
5 with Kunta and A-6
A with
Farsa.
P.W.16 Girija Prasad Das who was working as C.I. of
Police at Khurda received information through V.H.F. from
Begunia police station that a rioting had taken place in village
Tandal and one man of that village had died in the riot and
accordingly, he proceeded to village Tandal with force and
reached there at 11.30 a.m. and there o
on the oral report of
Madhu Behera (P.W.15
P.W.15), he drew up a plain paper F.I.R. and it
was read over and explained to P.W.15, who affixed his L.T.I.
and the written report was sent to Begunia police station where
one N.C. Sethy, Officer in-charge
in charge of Begunia police station
registered Begunia
unia P.S. Case No.95 dated 24.08.
24.08.1994
1994 under
sections 147/148/149/
147/148/149/336/337/380/427/307/302
336/337/380/427/307/302 of I.P.C. and
P.W.16 himself took up investigation.
3. During the course of investigation, P.W.16 found the
dead body of the deceased was kept on the street locally called
Jemabanta Dei. He held inquest overr the dead body of the
deceased in presence of the Addl. Tahasildar, Khurda and
witnesses and prepared inquest report Ext.27. On 24.08.1994 he
h
sent the dead body of the deceased for post-mortem
mortem
examination through a constable as per the dead body challan
(Ext.6) also prepared the spot map (Ext.28). On 24.08.1994 he
also sent requisitions
s to Kantabad P.H.C. and Khurda Hospital for
medical examination in respect of the injured persons as per
Exts.16/2 to 23/2. On 24.08.1994 he
e also seized the blood
blood-
stained earth and sample earth from the paddy field of Padmalav
Sahu in presence of the witnesses as per seizure list Ext.11/1.
Ext.11/1
On 24.08.1994 he
e also made a house search of A-1 and seized a
Katari as per seizure list Ext.12/1 in presence of the witnesses.
witnesses
On 24.08.1994 he also searched the house of accused Muralidhar
Naik and recovered a 'gupti' and seized the same as per seizure
list Ext.13/1. On 24.08.1994 he also seized two aluminium pots
(Dekchi)) and one leaf of a door from the village danda in front of
the house of Manguli Naik as per seizure list Ext.25/1. On
24.08.1994 he
e also seized 20 nos. of small and big size brick
bats and some split bamboos from the village danda of village
Jemabanta Dei in presence of the witnesses as per seizure list
Ext.4. On 25.08.1994 he sent injury requisition (Ext.29) in
respect of the injured Ramesh Naik (P.W.6) to Kantabad P.H.C.
and also issued another requisition (Ext.30) in favour of P.W.15
to Begunia hospital.. He also issued injury requisition (Ext.31) in
respect of the injured Akhaya Kumar Panda, seized a blood-
blood
stained lungi, two red coloured towels, one yellow coloured saree
on production by Budei Naik at Khurda medical campus as per
seizure list Ext.24/1 and sent M.O.I and M.O.II to the Medical
Medi
Officer (P.W.8), who conducted post mortem examination over
the dead body of deceased seeking for opinion as to whether the
death of deceased could be possible by such M.Os.
P.W.16 handed over the charge of investigation to
P.W.17 Braja Kishore Patra, Circle Inspector of Police,
Police, Khurda on
10.11.1994, who arrested some of the accused persons and
forwarded them to Court. He also examined some witnesses,
arrested more accused persons on 23.01.1995, seized the
command certificate from Havildar Balaram Mohanty, who had
carried the dead body of the deceased to Government Hospital,
Khurda for post mortem examination as per seizure list Ext.9
and on completion of investigation, submitted charge sheet
against the appellants along with other accused persons under
sections 147/148/302/307/455/
147/148/302/307/455/380/323/324/427
380/323/324/427 read with
section 149 of I.P.C.
Framing of Charges
Charges:
4. On receipt of the charge sheet, the case was
committed
mmitted to the Court of Session following due procedure,
procedure
where the learned trial Court
C framed charges against the
appellants as aforesaid
aforesaid. The appellants pleaded not guilty and
claimed to be tried and accordingly,
accordingly the sessions trial procedure
was resorted to establish their guilt.
Prosecution Witnesses, Exhibits & Material Objects:
Objects
5. In order to prove its case, the prosecution examined
as many as nineteen numbers of witnesses.
P.W.1 Jhuni Behera,, who is the daughter of th
the
informant (P.W.15)
(P.W.15), P.W.6 Ramesh Naik and the informant
(P.W.15) himself are the eye witnesses to the occurrence and
they supported the prosecution case.
P.W.2 Panu Parida stated to have seen the accused
persons damaging his house
house.. He further stated that the accused
persons had enmity with the villagers of Tandal and his house
along with the belongings was also ransacked by the accused
persons. He is a witness to the seizure of blood stained earth and
sample earth from the land of Padmalav Sahu as per seizure list
marked as Ext.11,, seizure of blood stained Katuri from the house
of Dinabandhu Dehuri as per seizure list marked as Ext.12 and
blood stained Gupti from the house of accused Muli Naik as per
seizure list marked as Ext.13.
P.W.3 Pandari Naik, who is a co-villager
villager of the
deceased has stated that at the time of occurrence, the
appellants along with other accused persons being armed with
different deadly weapons
weapons, chased the deceased and seeing the
violentt mood of the accused persons, he fled away
y through the
backside of his
is house and he came back after three days to h
his
house and found his
is house to have been razed to the ground by
the accused persons.
P.W.4 Budhei Dei
Dei, wife of P.W.11 is a co-villager
villager o
of
the deceased and she has stated that she
he found the accused
persons to have assembled at the house of the deceased being
armed with different deadly weapons
weapons.. She further stated that
while some accused persons were breaking the house of the
deceased, a group
up of accused persons came to her house,
house
damaged her house and cut the green trees from her bari. She
further stated that when she along with her husband Chaitanya
(P.W.11)
P.W.11) went out of the house, the accused pe
persons
sons rushed
towards her
er husband and accused Kaibalya dealt a Katuri blow
on the right side scapula of her husband causing bleeding injury.
She further stated that when she went to rescue her husband,
accused Bhagaban Behera dealt a lathi blow (thenga) on her
head, accused Bilua dealt a lathi blow to the right side wrist and
backside of the palm of her hand for which she sustained
bleeding injury on her head and fell down on the ground and lost
her sense.
P.W.5 Surenda Dehuri, who is a co-villager
villager of the
deceased, has stated that he found the accused
accused persons to have
assembled at the house of the deceased being armed with
deadly weapons. He stated that the accused persons chased the
deceased and his family members pelting brick bats and the
accused persons in a body went inside the house of Pandari Naik
(P.W.3), pulled down his house and damaged the same, which
he witnessed from the backside of his house. Thereafter, the
accused Bidyadhar Sahu climbed up the roof of P.W.3,, pulled out
the straws from the roof to find out who had taken shelter there
in the house of P.W.3 and all the accused persons went there
and participated in the damage and destruction. He has also
narrated the reasons of ill-feeling
ill feeling between the villagers of his
village as well as the villagers of
o Bada Saar Sahi and Sabarna
Sahi belonging to the accused persons. He further stated that
the dispute was pacified on the intervention of Grama Rakhi.
P.W.7 Kulamani Behera, who is the father of the
deceased, has
s stated that while the incident occurred, he had
been to the house of Pandari Naik (P.W.3) and on hearing the
hue and cry near his house, he came back to his house and
found the accused persons to have assembled near his house
being armed with lathi, bhali,
bhali, kanta, pharsa and other deadly
weapons. He further stated that while he was going to the rescue
of the wife of his youngest son, Mathura, who had delivered a
baby prior to the occurrence, accused Maharagia (since dead)
pulled him out of his house and accused
ac Jogi Behera dealt a lathi
blow to his left forearm and thereafter accused Bhagaban poked
two blows to his left scapula
scapula, for which he fell down on the
ground. He further stated that all his family members along with
children ran to the house of Pandari Naik (P.W.3) to take shelter
shelter.
He further stated that the accused persons ransacked his grocery
shop completely.
P.W.8 Dr. Bholeswar Panda was the
e Paediatric
Specialist of G.B.S.
S. Hospital, Khurda, who conducted post
mortem examination over the de
dead
ad body of the deceased and
proved the P.M. report Ext.14.
P.W.9 Dr. Harihar Patnaik,, who was the Medical
Officer, Kantabad Additional P.H.C. treated the injured persons,
namely, Budhei Dei (P.W.4), Kulamani Behera (P.W.7), Chaitan
Naik (P.W.11), Basanta Naik
k (P.W.18), Kumar Naik (P.W.19) and
others on police requisition and proved the injury reports.
report He
further stated that all the injuries embodied in the reports were
simple in nature. He further stated that though the injured Dama
Majhi was referred by the police for medical examination, but he
refused to be medically examined. He proved the certificate to
that effect vide Ext.23.
P.W.10 Basanti Dei, the daughter of the deceased,
deceased
has stated regarding the misbehaviour shown to her by A-1
during the video show in the village and there was an altercation
between his father and uncle with A-1 in the village meeting.
meeting
She further stated that she had been to the agriculture field
when the incident occurred and on hearing the news regarding
the attack on her house by the accused persons, she returned
back and found that her deceased father was being chased by
the accused persons, being armed with deadly weapons like
Katuri, Kanta, Axe and Bhujali.
P.W.11 Chaitan Naik, who is one of the injured, has
stated that on the date and time of occurrence, the accused
persons after destroying
oying the houses in Sana Sa
Sara Sahi, came to
his house and started destroying the green trees of his bari. Out
of fear, he along
ng with his family members wanted to take shelter
shelt
in the house of P.W.3
P.W.3, but they were confronted by the some
accused persons being armed with deadly weapons. At that time,
accused Kaibalya Dehur
Dehury
y dealt one blow by means of a Kati
K on
his right foot causing a bleeding injury, accused Tiki Naik dealt
another
ther blow by means of a Farsa on his right forearm
forearm causing
bleeding injury and thereafter, A-3 dealt a tangia blow on his
right
ight hand shoulder joint causing serious bleeding injury. He
furtherr stated that when his wife Budhei Dei (P.W.4) came to h
his
rescue, she was also assaulted for whi
which
ch she sustained bleeding
injuries on her head and on her right palm on the dorsal aspect.
He further stated that he saw the deceased running towards the
field after coming out of the house of Pandari Naik (P.W.3) being
chased by A-1, A-2, A-3, A-4, A-5, Raja Dehuri (dead), Tiki Naik
and others being armed with deadly weapons.
P.W.12 Prafulla Majhi, who is a co-villager
villager of the
deceased,, claimed to have seen the first part of the occurrence
regarding demolition of the house of the deceased and chasing
the deceased towards the field by the accused persons. He is a
witness to the seizure of blood stained clothes produced by
Budhei Dei (P.W.4) as per seizure list Ext.24.
P.W.13 Mathura Behera
Behera, who is a co-villager
villager of the
deceased, has stated regarding the misbehaviour shown to
P.W.10 during the video show and he is a witness to the village
meeting over the said issue. He further stated that on the date
and time of occurrence, he had been to hi
his
s paddy field and on
hearing hue and cry in the village, he rushed to the spot and
found that some persons of Bada Saara Sahi were damaging
their houses and out of fear, he did not enter into the village,
rather rushed to Begunia police station to report the
he matter and
sought police assistance on the issue immediately.
P.W.14 Magi Dehuri is a witness to the seizure of
split bamboos and brick bats as per seizure list Ext.4
Ext.4.. He is also
a witness to the seizure of aluminium pots as per seizure list
Ext.25.
P.W.16 Girija Prasad Das, who was the C.I. of Police
at Khurda, was the initial Investigating Officer of the case.
P.W.17 Braja Kishore Patra was the C.I. of Police,
Khurda, who took over the charge of investigation from P.W.16
and submitted charge sheet against the accused persons.
persons.
P.W.18 Basanta Naik is an injured witness who stated
that the accused
cused persons came in a body, damaged the houses
belonging to different persons of his village and during the
occurrence, he was assaulted by Naba Naik, Sarat Naik, Bilua
Naik by means of lathi and accused Kailash Naik dealt a katuri
blow to his right leg causing bleeding injury.
P.W.19 Kumar Naik is another injured
d witness to the
occurrence who stated that on the date of occurrence, the
accused persons came in a body and damaged the houses and
other properties of his village and in course of such incident,
accused Niranjan Naik assaulted him by means of a lathi to his
left ear causing bleeding injury.
The prosecution
osecution proved thirty one numbers of
documents as exhibits. Ext.1 is the Formal F.I.R,, Ext.2 is the
Chemical Examination
xamination Report, Ext.3 is the Serological
Examination Report,, Exts.4,
Ext 5, 9, 11/1, 12/1, 13/1, 24/1 and
25/1 are the seizure lists,
lists Ext.6 is the dead body challan,, Ext.7 is
the spot visit report, Ext.8
Ext. is the forwarding report
eport of S.D.J.M
S.D. to
State F.S.L., Ext.10
10 is the command certificate,
certificate Ext.14
14 is the
post-mortem report,, Ext 15 is the reply to the query by P.W 8,
8
Ext.16
16 is the injury certificate of Chaitan Naik (P.W.11), Ext.17
Ext is
the injury certificate of Kartik Naik, Ext.18 is the injury certificate
of Basant Naik (P.W.18)
(P.W.18),, Ext.19 is the injury certificate of Budhei
Dei (P.W.4),, Ext.20 is the injury certificate of Kumar Naik
(P.W.19),, Ext.21 is the injury certificate of Kulamani Behera
(P.W.7),, Ext.22 is the injury certificate of Lochan Behera, Ext.23
is the certificate of Dama Majhi, Ext.26
26 is the F.I.R., Ext.27 is the
inquest report, Ext.28 is the spot map, Ext.29 is the injury
requisition of Ramesh Naik (P.W.6), Ext.30
0 is the injury
requisition of Madhu Behera (P.W.15) and Ext.31 is the injury
requisition of Akshay
y Kumar Panda.
The prosecution also proved two numbers of mat
material
objects. M.O.I is the Gupti (knife) and M.O.II is the Katuri.
Defence Plea:
6. The defence plea of the appellants is one of complete
denial to the prosecution case and they further pleaded to have
been entangled falsely in the case due to previous rivalry..
Findings of the Trial Court
Court:
7. The learned trial C
Court,
ourt, after assessing the oral as
well as documentary evidence on record, came to hold that the
evidence of P.Ws.1,
1, 6 and 15 to the effect that on the date of
occurrence, the appellant Raj Kishore Dehury (since
since dead),
dead A-1,
A-2, A-3, A-4, A-5
5 and A
A-6 being
eing armed with Lathi, Farsa, Kanta
K
and Bhali etc. committed murder of the deceased over the land
of Padmalav Sahu, is clear and convincing and it did not find any
reason to discard their evidence on this score.. While believing
the evidence of P.W.3 Pandari Naik, learned trial Court has held
that merely because after escaping from the house, he did not
go to the police station
ation to report the matter, is not a ground to
discard his evidence on this score. The learned trial Court relying
on the evidence of P.W.10,
P.W.10, has observed that the evidence of
P.Ws.1, 6 and 15 find support from the evidence of P.W.10 so far
as chasing to the deceased by the accused pe
persons. It was held
that simply because P.W.6 was examined four to five days after
the occurrence cannot be a ground to discard his evidence
particularly when nothing has been brought out in his cross-
cross
examination to impeach his testimony. It was further held that
the evidence of P.W.6 and P.W.15 indicate that some of the
accused persons were also armed with lathi and in such
circumstances,, the possibility that the injury no.(ix) might have
been caused by lathi cannot be ruled ou
out. Relying on the
evidence of the eye witnesses, i.e. P.Ws.1, 6 and 15, which finds
support from the evidence of other witnesses, the learned trial
Court concluded that on the date of occurrence, accused Raj
Kishore Dehury (since dead), A-1, A-2, A-3, A-4, A-5
5 and A
A-6
formed an unlawful assembly and being armed with deadly
weapons, committed murder of the deceased in prosecution of
their common object
object. The learned trial Court further observed
that the names of the seven appellants
ellants find place in the F.I.R.
F.I.R
lodged at the spot within one hour of the occurrence, which rules
out possibility of any false implication of these appellants
appellants at that
stage and accordingly
accordingly, found them guilty of the offences
charged.
The learned trial Court relying
relying on the evidence of
P.Ws.7,
7, 9, 18 and 19, came to hold that the evidence of these
witnesses cannot be accepted to come to a definite conclusion
that at the time of incident
incident, any of the other accused persons
except the seven {
{the present appellants along with Raja @
Rajakishore Dehury (since dead)} referred to above, shared
common intention in prosecution of the common o
object
bject of the
unlawful assembly and accordingly, acquitted the other accused
persons of all the charges. The learned trial Court held that there
is no evidence thatt due to pelting of stones by the accused
persons, any witness sustained injury and thus, the charge under
section 337/149 of I.P.C. fails to the ground.
Contentions of the Parties
Parties:
8. Mr. Devashis Panda
Panda, learned counsel appearing
ring on
behalf of the appellant
appellants argued that the learned trial Court found
the appellants guilty on the basis of evidence adduced by three
eye witnesses i.e. P.Ws.1, 6 and 15, but there are other eye
witnesses like P.Ws.2,
P.Ws. 3, 4, 5, 7, 10, 11, 12, 13, 18 and 19 who
have not impleaded the appellants in the assault of the
deceased. He further argued that the evidence of the doctor
(P.W.8) who conducted post
post-mortem
mortem examination falsifies the
assault made by so many appellants with different weapons.
weapons He
argued that the places from where the eye witnesses claimed
claim to
have seen the assault on the deceased is a doubtful feature and
none of the eye witnesses speak
speaks about the presence of the
other at the time of assault on the deceased on the land of
Padmanav Sahu.. He further argued that P.W.6 was exa
examined
mined at
a belated stage by the I.O. and no cogent explanation is
forthcoming
coming in that respect. P.W.6 has stated to have seen the
entire incident sitting near his house, but the spot map would
falsify this aspect. He further argued that as per the evidence of
P.W.1, P.W.15 had confined himself in the house of Manguli
Nayak when the assault was going on,
on, which creates doubt about
the evidence of P.W.15 as an eye witness to the occurrence. He
argued that according to the evidence of the eye witnesses, the
appellants
llants were arme
armedd with sharp cutting weapons, but injury
no.(ix) is a lacerated wound on the left frontal region above the
left eye brow which according to the doctor (P.W.8) was
s the fatal
injury, could not have been caused by any such sharp cutting
weapon rather it wa
was
s possible by fall as stated by P.W.8. He
argued that though the deceased had sustained as many as nine
injuries, but injuries nos.(i) to (viii) were on the non
non-vital
vital parts
of the body and none of the eye witnesses has stated as to who
caused the fatal injury i.e. injury no.(ix) on the head and
therefore, even if for the sake of argument, it is accepted that
the appellants
nts assaulted the deceased, it is not a case which
would come within the purview of section 302/149 of I.P.C.
rather it may at best come within culpable homicide not
amounting to murder punishable under section 304 Part
Part-II/149
of I.P.C.
In support of his contention, learned counsel placed
reliance in the cases of Ganesh Bhavan Patel and another
-Vrs.- State of Maharashtra reported in (1978) 4 Supreme
Court Cases 371, Muthu Naicker and others -Vrs.- State of
Tamil Nadu reported in (1978) 4 Supreme Court Cases
385, Hallu and others -Vrs.- State of M.P. reported in
(1974) 4 Supreme Court Cases 300,
300 State of Orissa -Vrs.-
Brahmananda
ananda Nanda reported in (1976) 4 Supreme Court
Cases 288, Gunduchi Patnaik and others -Vrs.- State of
Orissa reported in 1985 (I) Orissa Law Reviews 480,
480 Lahu
Kamlakar Patil and another -Vrs.- State of Maharashtra
reported in (2013) 6 Supreme Court Cases 417 and Nadodi
Jayaraman and others -Vrs.- State of Tamil Nadu reported
in 1992 Supp (3) Supreme Court Cases 161.
161
9. Mr. Jateswar Nayak, learned Additional Government
Advocate appearing for the State, on the other hand, supported
the impugned judgment and urged that the evidence of the three
eye witnesses i.e. P.Ws.1, 6 and 15 have not been shatte
shattered in
the cross-examination
examination rather it is getting corroboration from the
medical evidence. As per the evidence of the doctor (P.W.8),
P.W.8), the
post mortem report shows multiple fatal injuries consistent with
assault by sharp-cutting
cutting and blunt weapons like Tangia, Katuri,
Kanta, Farsa and Lathis as described by the eye witnesses.
Learned counsel further submitted that the appellants were
armed with deadly weapons and their concerted action in chasing
and assaulting the deceased proves their active participation in
furtherance of their common object. He further submitted
submitted that
the individual overt acts of the appellants are not required to be
proved separately as long as their membership and participation
in the unlawful assembly is established. He further submitted
that there is no inconsistency between the ocular and medical
version. He argued that the evidence of P.Ws.
P.Ws.3, 10, 11 and 12
corroborate the version of the three eye witnesses and they have
also impleaded the appellants. The other eye witnesses who had
not seen the assault on the deceased on the land of Padmanav
Sahu, have deposed about the pelting of brickbats by the
accused persons,
ersons, their own assault or assault on the other
injured or the first part of the occurrence when the houses of the
villagers were damaged and properties were ransacked, which
gives a complete picture about the entire occurrence right from
the beginning till
ill end. He argued that nothing has been brought
out by way of cross--examination of the
e three eye witnesses that
the places from where they stated to have seen the assault on
the deceased are doubtful feature. The three eye witnesses were
at three differentt places when the assault on the deceased was
going on and therefore, each of them while focusing on the
assault might not have noticed the presence of the others
others at the
time of occurrence. He argued that nothing has been brought on
record as to when P.W.6 was examined and no question has also
been put to the I.O. for delayed examination of P.W.6 and
therefore, the defence cannot take advantage of the same. He
further argued that the vague statement of P.W.1 that P.W.15
had confined himself in the house of Manguli Nayak when the
assault was going on, cannot be a ground to disbelieve the
position of P.W.15 at the time of occurrence or his evidence as
an eye witness to the assault on the deceased on
on the land of
Padmanav Sahu. He argued that the cause of death of the
deceased was not only the head injury which caused laceration
of the
e brain matter but associated with multiple injuries on
different parts of body as per the evidence of the P.M. doctor
(P.W.8) and therefore, the learned trial Court has rightly held
that the case falls within section 302/149 of I.P.C. The appellants
were the members of unlawful assembly and committed rioting
being armed with deadly weapons and thus the learned trial
Court has rightly held the appellants guilty under sections
section
147/148/302/149 of the I.P.C.
I
In support of such submissions, learned counsel for
the State has placed reliance on the decisions of the Hon'ble
Supreme Court in the cases of Masalti -Vrs.- State of U.P.
reported in
n A.I.R. 1965 Supreme Court 202
202.
Whether the deceased died of a homicidal death?
death?:
10. Adverting
dverting to the contention
contentions
s raised by the learned
counsel for the respective parties, let us first examine whether
the prosecution has successfully established that the deceased
met with a homicidal death or not.
Apart from the inquest report (Ext.27),, it appears
that P.W.8 conducted the post-mortem
mortem examination over the
dead body
y of the deceased on 25.08.1994 and noticed the
following injuries:
"(i) Cut injury at the middle of right upper arm
cutting the skin and underlying muscle.
scle. There
was fracture of humerus
humerus bone at the middle, size
of the injury was ½" x 3" x ½";
(ii) Cut injury at the middle of left upper arm
cutting the skin and underline muscle. The size
of the injury is 3" x ½";
(iii) Cut injury 2" below lower angle of right
scapula cutting skin and muscle. The size of the
injury is 3" x ½"
½";
(iv) Cut injury on the anterior aspect of right leg
4" below the right knee joint cutting skin and
muscle. The size of the injury is 2" x ½"
½";
(v) Cut injury on the anterior aspect of right le
leg
3" above right knee joint cutting
cutting the skin. The
size of the injury is 1" x ½";
(vi) Cut injuries at three places on right foot of
size varying
arying from 1" to 3" long and ½" wide.
There is fracture of right second and third
metacarpal
tacarpal bones;
(vii) Cut injury on the middle of the left leg
cutting skin. The size of the injury is 2" x ½";
(viii) Cut injury on the inner aspect of left foo
foot
skin deep. The size of the injury is 2" x ½" x
skin deep;
(ix) Lacerated injury on the left frontal region 1"
above the left eye brow causing fracture to the
underling frontal bone. Th
The
e size of the injury is
2" x ½".
The doctor further stated that on dissection, he found
that the left frontal lobe of the brain matter and its three layers
of dura, pia and archnoid matter were
we lacerated. He opined that
the injuries noted in the report were ante mortem in nature and
the
he cause of death was due to laceration of the brain matte
matter and
associated by multiple injuries on different parts of the body and
the time of death was within 16 to 24 hours of the post-mortem
mortem
examination. The doctor proved the post-mortem
post mortem report marked
as Ext.14.. He also examined the weapon
weapons of offence (one Kat
Katuri
and one Gupti)) which were sent to him by the I.O. for a query
regarding possibility of the injuries sustained by the deceased
with such weapons
s and he answered vide Ext.15 that the
external injury nos.
nos.(i), (vi) and (ix) could be caused by Katuri
and the rest of the external injuries could be caused by Gupti. He
further stated that the injuries were sufficient in ordinary course
of nature to cause death.
In view of the inquest report (Ext.27) and findings in
the post-mortem
mortem report (Ext.14) coupled with the evidence of
the doctor (P.W.8) who conducted post-mortem
mortem examination,
examination
which has remained unchallenged in the cross-examination
cross examination and
other evidence on record,
record we are of the humble view that the
learned trial Court
ourt is quite justified in holding that
th the
prosecution has successfully proved that the deceased met with
homicidal death.
Whether the evidence of eye witnesses P.Ws.1,, 6 & 15 can
be acted upon?:
P.W.1 Jhuni Behera
Behera:
11. P.W.1 Jhuni Behera is the daughter of the informant
(P.W.15).
.W.15). The deceased was her elder father. She stated that on
the date of occurrence, when the accused persons were being
armed with deadly weapons like Bhali, Kanta and Pharsa started
damaging
amaging their house from 8 a.m. onwards, she herself, her
father (P.W.15),
15), her elder father (deceased) and others fled
away to the house of P.W.3 out of fear to save their lives. They
took shelter in the house of P.W.3. Accused Bidyadhar climbed
over the thatch of P.W.3 and made a hole taking out the straw
and also shouted tthat
hat the family of the deceased had taken
shelter in the house of P.W.3. The other accused persons were
standing in front of the house of P.W.3 and they started breaking
the door of the house of P.W.3. The deceased tried to escape
through the back door of tthe house of P.W.3 and he was chased
by the appellants and other accused persons. She specifically
stated that A-1
1 was holding Katari, A
A-2
2 was holding Katari, A
A-3
was holding Tangia, A-4
A was holding Pharsa, A-5
5 was holding
Kanta and A-6
6 was holding Pharsa a
and
nd the other accused
persons were holding lathi and other deadly weapons. She
further stated that the deceased was overpowered on the land of
Padmanav Sahu. Raj Dehury (Dead) attacked on the right
shoulder of deceased by Pharsa, A
A-1
1 assaulted the deceased by
katari on the right hand, A-3
A 3 dealt blows on the right leg of the
deceased by Tangia and other appellants assaulted the deceased
with the weapons with which
w they were armed and
nd the
appellants had also surrounded the deceased. She stated that
coming out of the house of P.W.3, she came close to a mango
tree which was about 40 yards from the spot, stood there and
watched the assault by different accused persons on the
deceased. She further stated that after half an hour of the
assault, she came from underne
underneath
ath the mango tree and went to
the land of Padmanav
nav Sahu and found the deceased was lying
dead with bleeding injuries all over his body which were on the
right scapula, right leg, right hand, left hand, left leg and right
frontal bone.
In the cross
cross-examination, she has stated
d to have
been examined by the p
police
olice on the date of the occurrence itself.
She further
er stated that her father (P.W.
(P.W.15)
15) had confined himself
inside the house of Manguli Naik, when the deceased was
assaulted on the land of Padma
Padmanav. She further stated that no
other villagers was standing near her and witnessing the incident
of assault on the deceased. She further stated that by the time
the police came to the spot, they had shifted the deceased from
the land of Padmanav
nav to a place which was in the front of the
house of Pandari Naik (P.W.
(P.W.3)
3) and kept the body under a
coconut tree.
It has been confronted to her and
and proved through the
I.O. (P.W.16)
16) that he had not stated before police that her father
and elder father had taken lease of govt. land and that sh
she came
out of the house of P.W.
P.W.3
3 and stood under a mango tree to
witness the assault on the deceased and that she saw a cut
injury above the right eye brow of the deceased.
Apart from such minor contradictions
contradictions, nothing
othing has
been brought
ght out in the cross
cross-examination of P.W.1 to affect her
credibility. She was underneath a mango tree which was about
40 yards from the spot and watching the assault on the
deceased which might not have been noticed by the other two
eye witnesses. Her evide
evidence
nce appears to be very natural and her
position at the time of the assault on the deceased was
s such that
it could not be said that she was at such a distance that it would
not have been possible on her part to mark the assault. The
evidence of P.W.1 is als
also
o getting ample corroboration from the
medical evidence. Thus, we are of the view that the learned trial
Court has rightly placed reliance on her evidence.
P.W.6 Ramesh Naik:
Nai
12. He stated that on the occurrence day, he was at a
distance of 25 ft. from the house of the deceased and the house
of P.W.3 was at a distance of 50 ft. from his house. While
returning from his cultivable land, he found the accused persons
were armed with deadly weapons and assembled at the house of
the deceased and completely demoli
demolished his house.. He further
stated that then the accused persons came to his house and
started demolishing the same and when he protested, he was
assaulted by two accused persons, namely, Brundaban Dehury
and Niranjan. He further stated that when accused Bidyadhar
Bidyadhar
Sahu climbed up the roof of P.W.3
P.W.3, made a hole on the thatched
roof, located the deceased and his family members inside the
house of P.W.3 and then shouted and drew the attention of the
co-accused
accused persons about the presence of the deceased inside.
He further stated that the accused persons started demolishing
the house of P.W.3 for which the deceased fled away through the
backdoor and all the appellants along with appellant Raja Dehury
(dead) chased the deceased being armed with Katuri, Farsa,
Kanta,, Tangia and lathi. The deceased ran towards the land of
Padmanav Sahu where he was overpowered. The appellants
brutally assaulted the deceased with the arms, which they were
holding.
In the cross
cross-examination,
examination, P.W.6 has stated that he
was examined by the I.O. between four to six days. He stated
that he was sent to the hospital by the police for medical
examination on the following day of the incident. He further
stated that he could not say which of the accused assaulted on
which part of the body of the d
deceased.
eceased. He further stated to
have witnessed the entire incident sitting near his house.
It has been confronted to him and proved through
the I.O. (P.W.16) that he had not stated before police that the
accused persons demolished the house of the deceased and he
had also not stated that accused Bidyadhar told the other
accused persons to come to the house of P.W.3 stating that the
deceased had concealed his presence there and that he had also
not stated that the other accused persons apart from the
appellants
ts chased the deceased.
Learned counsel for the appellants contended that
since P.W.6 was examined by the I.O. at a belated stage and no
cogent explanation is coming forth in that respect, his evidence
should be viewed with suspicion.
On the other hand, the learned counsel for the State
argued that there is no evidence on record as to when P.W.6 was
examined by the I.O. and no question has been put to the I.O.
for delayed examination of P.W.6 and thus, the defence cannot
canno
take any advantage of the delayed
de examination, if any.
It appears that not a single question has been put by
the defence to the I.O. (P.W.16) as to when he examined P.W.6
and why there was delay in recording his statement
statement.
Learned counsel for the appellants for canvassing his
point on delayed disclosure emphatically placed reliance in the
case of Ganesh Bha
Bhavan Patel (supra), wherein the Hon'ble
Supreme Court has held as follows:
follows:-
"15......Delay
Delay of a few hours, simpliciter, in
recording the statements of eye witnesses may
not, be itself, amount to a serious infirmity in
the prosecution case. But it may assume such a
character if there are concomitant circumstances
to suggest that the investigator was deliberately
marking time with a view to decide about the
shape to be given to the case and the eye
witnesses to be introduced."
introduced.
In the case of Brahmananda Nanda (supra), the
Hon'ble Supreme Court held as follows:
follows:-
"2........Though
Though according to this witness, she saw
the murderous assault on Hrudananda by the
respondent and she also saw the
the respondent
coming out of the adjoining house of Nityananda
where the rest of the murders were committed,
she did not mention the name of the respondent
as the assailant for a day and a half. The
murders were committed in the night of June 13,
1969 and y
yet
et she did not come out with the
name of the respondent until the morning of
June 15, 1969. It is not possible to accept the
explanation sought to be given on behalf of the
prosecution that she did not disclose the name
of the respondent as the assailant e
earlier
arlier than
June 15, 1969 on account of fear of the
respondent. There could be no question of any
fear from the respondent because in the first
place, the respondent was not known to be a
gangster or a confirmed criminal about whom
people would be afraid, secondly, the police had
already arrived at the scene and they were
stationed in the clubhouse which was just
opposite to the house of the witness and thirdly,
A.S.I. Madan Das was her nephew and he had
come to the village in connection with the case
and had
ad also visited her house on June 14,
1969. It is indeed difficult to believe that this
witness should not have disclosed the name of
the respondent to the police or even to ASI
Madan Das and should have waited till the
morning of June 15, 1969 for giving out the
name of the respondent. This is a very serious
infirmity which destroys the credibility of the
evidence of this witness."
witness
In the case of Gunduchi Patnaik (supra), a Division
Bench of this Court has held as follows:-
"14.
14. We would next come to the evidence
nce of
P.W.7.
W.7. Neither P.W.
P.W.7 had spoken
en about the
presence of P.Ws.2
P.Ws.2 and 6 on the spot nor
P.Ws.2
2 and 6 had spoken about the presence of
P.W.7
7 at the time of occurrence. It would be
seen from the evidence of the Investigating
Officer that this w
witness
itness was examined in the
course of investigation as late as on August 25,
1979. There was no evidence that he had
disclosed the occurrence to any one until his
belated examination in the course of
investigation. If the police officer had come to
the scen
scene of occurrence
rence on August 12, 1979 and
P.W.7
7 had witnessed the occurrence, he could
have volunteered a statement to the
Investigating Officer. No explanation whatsoever
had been given by P.W.7
P.W.7 as to why he did not
disclose the occurrence to anyone.
any He could
d not
have had a sense of lo
loss
ss after the Investigating
police officer had come to the scene. There was
no evidence that any of the accused persons had
threatened him at the time of assault on the
person of the deceased not to disclose the
occurrence to anyone.
one. The learned Sessions
Judge has observed that the general tendency of
the people of the present day is to remain away
from police interrogation and dusty law courts'
one of which was being presi
presided
ded over by him at
the trial. No reasonable explanation had
d been
offered by P.W.
P.W.7 as to
o why he made a late
disclosure about the occurrence at the stage of
investigation. In such circumstances,
circumstances it would be
unsafe and hazardo
hazardous
us to accept the evidence of
P.W.7 with regard to the occurrence."
In the case of Lahu Kamlakar Patil (supra), the
Hon'ble Supreme Court held as follows:
follows:-
"22.. From the aforesaid grounds, the primary
attack of the learned Counsel for the Appellants
is that there has been delay in the examination
of the said witness and he has contributed for
such delay and, hence, his testimony should be
discredited.
23. In Mohd. Khalid -Vs.- State of W.B. :
(2002) 7 S
Supreme Court Cases 334,, a
contention was raised that
th three witnesses,
itnesses,
namely, P.Ws.
P.Ws.40,
40, 67 and 68, could not be
termed to be reliable. Such a contention
tion was
advanced as regards P.W.
P.W.68
68 that there had
been delay in his examination. The Court
observed that mere delay in examination of the
witnesses for a few days cannot in all cases be
termed fatal so far as prosecution is concerned.
There may be s
several
everal reasons and when the
delay is explained, whatever
whatever the length of delay,
the Court
ourt can act on the testimony of the
witnesses, if it is found to be cog
cogent
ent and
credible.
xxx xxx xxx
26. From the aforesaid pronouncements, it is
vivid that witnesses to certain crimes may run
away from the scene and may also leave the
place due to fear and if there is any delay in
their examination, the testimony should not
not be
discarded. That apart, a Court
Court has to keep in
mind that different witnesses react differently
under different situations. Some witnesses get a
shock, some become perplexed, some start
wailing and some run away from the scene and
yet some who have the courage and conviction
come forward either to lodge an F.I.R. or get
themselves
hemselves examined immediately. Thus, it
differs from individuals to individuals. There
cannot be uniformity in human reaction. While
the said principle has to be kept in mind, it is
also to be borne in mind that if the conduct of
the witness
witness is so unnatural and is not in accord
with acceptable human behaviour allowing of
variations, then his testimony becomes
questionable and is likely to be discarded.
discarded."
In the case of Madan Kanhar @ Mitu -Vrs.-- State
of Orissa reported in (2025) 98 Orissa Criminal Reports
781, this Bench has observed as follows:
"13.
13. In the instant case, the testimony of P.W.5,
the supposed eyewitness, fails
fails to meet the
standard of a 'sterling
' witness',, as laid down by
the Hon'ble Supreme Court. The Court has held
that, an eyewitness must be of the highest
quality and credibility, and their version should
be so unimpeachable that it can be accepted at
its face value without hesitation. A sterling
witness must provide a natural and consistent
account that withstands rigorous cross-
cross
examination and aligns with the overall case of
the prosecution. A major flaw in P.W.5's
statement is her delayed disclosure. She claims
to have witnessed the Appellant assaulting the
deceased with an axe and even heard the victim
cry out, "MITU HANI
HANI DELA." Despite allegedly
seeing such a brutal act, she failed to inform
anyone about it until six days after the incident.
This delay in disclosure raises serious doubts
about the credibility of her testimony. If she had
genuinely witnessed a murder, her silence is
highly unnatural and unexplained. The reason
given that she was threatened by the Appellant
appears weak, as she was in the company of
two others, who were also not examined as
witnesses. Their absence in the trial further
weakens her statement
statement,, as the prosecution
failed to bring forward independent witnesses to
substantiate her claims. There is no evidence on
record that the Appellant was having criminal
background. The police was coming to the
village from the date of occurrence in connection
with the investigation of the case. Therefore, it
is difficult to accept that, on account of threats
given by the Appellant, there was delayed
disclosure. If, in spite of presence of the police
in the village, she was in a state of fear as the
Appellant ha
had
d not been arrested, then how her
fear dispersed when she gave her statement to
police six days after the occurrence, as by that
time the Appellant was in large, which creates
doubt about the truthfulness of her version.
version."
After going through the decisions cited by the
learned counsel for the appellants to discard the evidence of
P.W.6 on the ground of his delayed examination, we are of the
view that the testimony of a witness cannot become unreliable
merely because there is a delay in the examination of such
witness by police during investigation
investigation.. Question of delay in
examining a witness during investigation is material only when
there are concomitant circumstances to indicate and suggest
that some unfair practice has been adopted
adopted by the investigating
agency for the purpose of introducing a witness to falsely
support the prosecution case or the investigator was deliberately
marking time with a view to decide about the shape to be given
to the case. Delay in examination of witnesses
witnesses is a variable
factor which would depend upon a number of circumstances like
non-availability
availability of witnesses, the investigating officer being pre
pre-
occupied in some serious matters, the investigating officer
spending his time in arresting the accused, wh
who
o were
absconding, being occupied in other spheres of investigation of
the same case, which may require his attention urgently and
importantly etc. However, in a case where commission of crime
is alleged to have been seen by witnesses who are easily
available,
ble, a prudent investigator would give to the examination
of such witnesses precedence over the evidence of other
witnesses. (Ref: (2005) 9 Supreme Court Cases 283: Sunil
Kumar -Vrs.- State of Rajasthan
Rajasthan;(2012)
(2012) 7 Supreme Court
Cases 646:
6: Shyamal Ghosh -Vrs.- State of West Bengal
Bengal;
(2015) 9 Supreme Court Cases 588: V.K. Mishra -Vrs.-
State of Uttarakhand
Uttarakhand)
The prosecution is under obligation to offer
explanation for the delay in recording the statement of an
important witness and if the explanation is reasonable and
plausible, testimony of the witness cannot be considered
unacceptable because of his delayed interrogation. Apart from
this, the defence must put specific questions to the investigating
officer for the delay in recording the statement and must seek
explanation from him. The Hon'ble Supreme Court in
n the case of
Banti @ Guddu -Vrs.
Vrs.- State of M.P. reported in (2004
2004) 1
Supreme Court Cases 414 and State of U.P. -Vrs.- Satish
reported in (2005) 3 Supreme Court Cases 114 has held
that unless the investigating officer is categorically asked as to
why there was delay in examination of the witnesses, the
defence
ence cannot gain any advantage therefrom. It cannot be laid
down as a rule of universal application that if there is any delay
in examination
nation of a particular witness, the prosecution version
becomes suspect. It would depend upon several factors. If the
explanation
lanation offered for the delayed examination is plausible and
acceptable and the Court accepts the same as p
plausible,
lausible, there is
no reason not to accept the version and rely on it if it is
trustworthy.
Therefore, in the case in hand, when P.W.6 has
stated that he was examined by the I.O. between four to six
days and no questions have been put to the I.O. (P.W.16)
regarding delayed examination of P.W.6 and there is no evidence
on record as to actually when P.W.6 was examined by the I.O.,
we are not able to accept the challenge made by the learned
counsel for the appellant regarding the acceptability of the
evidence of P.W.6 on the ground of his delayed examination.
P.W.6 is an independent witness and he was having no hostility
with the appellants
ants or any of the accused persons to depose
falsely against them
m. His evidence has not been shaken in spite
thorough and rigorous cross-examination.
There are no such major contradictions in the
evidence of P.W.6.
The learned counsel for the appellants argued that
P.W.6 claimed to have witnessed the entire incident sitting near
his house as he was dealt a lathi blow by accused Niranjan on his
right scapula,, but the spot map (Ext.28) would indicate that
there are houses in front of his house on the other side of the
road and spot as shown in Ext.28 was at such a place that it
could not have been possible on the part of P.W.6 to notice the
assault on the deceased sitting near his house.
The entire argument on this score falls to the ground
as nothing
othing has been brought out by way of cross
cross-examination
examination
that sitting near his house, P.W.6 could not have witnessed the
assault rather P.W.6 has stated that his house situates at a
distance of 50 to 60 feet away from the land of Padmanav Sahu
Sahu.
It is argued by the learned counsel for the appellants
that though P.W.6 has stated that accused Niranjan dealt a lathi
blow to his right scapula for which he sat down due to pain, but
there is no medical evidence to that effect.
We found from the evidence
eviden of the
he I.O. (P.W.16) that
he issued requisition (Ext.29) for medical examination of P.W.6
to Kantabad P.H.C. On perusal of the other side of Ext.29, it is
mentioned by the doctor in the report that no external injury
noticed. However, the doctor has not been examined.
Thus, we are of the view that even though no injury
report is there to corroborate the evidence of P.W.6 that accused
Niranjan dealt a lathi blow to his right scapula, but the same
cannot be a ground to disbelieve his entire evidence. T
The
e learned
trial Court has rightly relied upon the evidence of P.W.6.
P.W.15 Madhu Behera:
Behera
13. P.W.15 is the informant in the case and he is the
brother of the deceased. He stated that on the date of
occurrence, he was sitting on the varandah of his house where
w
the deceased was also residing. Apart from deposing that the
accused persons being armed with deadly weapons, damaged his
house and ransacked the properties, he stated that the seeing
the violent mood of the accused persons, he along with his
family members
embers so also the deceased and his family members
left the house out of fear and took shelter in the house of P.W.3.
He further stated that accused Bidyadhar Sahu came over the
thatch of the house of P.W.3 and pulled out the thatch and
announced to the other accused persons that the deceased had
taken shelter there. Out of fear, they opened the back door and
tried to escape, but the deceased was chased by the accused
persons.
rsons. He named all the appellants to be armed with weapons
like Thenga, Bhali, Kunta, Pharsa and Katuri while chasing the
deceased. The deceased ran towards the paddy field of
Padmanav Sahu where he fell down and there he was assaulted
brutally by the appellants.
ellants.
He further stated that he was assaulted by accused
Brundaban Dehuri and Gouranga Dehuri by brickbats and
sustained bleeding injury in his both the legs for which he could
not come out to the rescue of his deceased brother. He stated to
have struck
ck up in the bari of Manguli Naik because of assault on
him. He specifically stated that the land of Padmanav Sahu (spot
of assault) was clearly visible to him from the bari of Manguli
Naik which was at a distance of 200 cubits from the bari of
Manguli Naik.
He further stated that when the accused persons
dispersed,
spersed, his family members came to the land of Padmanav
Sahu and brought the deceased and placed him near a coconut
tree close to the house of P.W.3, but by then the deceased was
dead. He stated that the proximate cause of the incident was the
video show where A
A-1
1 passed some ugly comments to P.W.10
for which a meeting was convened in the village, but nothing
could be settled. He stated to have lodged the oral report before
police when they came to the spot which was reduced to writing.
In the cross-examination,
cross examination, he has stated that neither
he was present in the video show nor attended the meeting. He
stated that when he got struck up in the bari of Manguli Naik,
the family members of Manguli Naik shift
shifted
ed him to the front side
of their house. He stated that paddy was sown on the land of
Padmalochan Sahu and it was muddy then and paddy sapling
had come up. He stated that the deceased was not assaulted by
any of the accused persons before he fell down on tthe
he land of
Padmanav. He has denied the suggestion given by the defence
that the deceased died as because he fell down on the land of
Padmanav and that no one had assaulted him after he fell down
there.
The
he evidence of this witness was challenged by the
learned
earned counsel for the appe
appellants
llants on the ground that his
daughter (P.W.1) has
h stated that her father (P.W.15)
15) had
confined himself inside the house of Manguli Naik when the
deceased was assaulted on the land of Padmanav and therefore,
therefore
his evidence as an eye-witness
ey witness to the occurrence is a doubtful
feature. This submi
submission is not acceptable as P.W.15
15 himself
states that he was struck off in the bari of Manguli Naik and the
land of Padmanav Sahu was clearly visible to him from the bari
of Manguli Naik which
whic was at a distance of 200 cubits.
s. P.W.1
might not be in a position from the place where she was standing
underneath a mango tree to mark where her father was at the
time of assault on the deceased and she might be thinking that
her father had confined himself inside the house of Manguli Naik
at the time of assault on the deceased. We are of the view that
on the basis of the statement of P.W.1,
P.W.1, the evidence of P.W.15
P.W.
as an eye witness to the occurrence cannot be disbelieved.
The next ground of attack on the evidence of P.W.15
P.W.
by the learned counsel for the appellants is that though he
stated to have been assaulted by two of the accused persons by
means of brickbatting
brickbatting,, i.e., Brundaban Dehuri and Gouranga
Pradhan (A-4)
4) and sustained bleeding injuries
injuries on both his legs
and further stated that he had also told the police that he had
been assaulted and got injured due to brickbatting,
brickbatting but there is
no medical evidence to corroborate that he was an injured
witness rather it has been proved through the I.O. (P.W.16)
16) that
he had not stated to have received injuries due to brickbatting.
Such submission is very difficult to be accepted as
the
he I.O. (P.W.16) has stated that he issued requisition (Ext.30)
in favour of P.W.15 to Begunia Hospital. On the other side of
Ext.30, the injuries sustained by P.W.15 are mentioned, however
the concerned doctor from Begunia Hospital could not be
examined to prove it.
The evidence of P
P.W.15 as an eye witness to the
assault on the deceased cannot be doubted merely because he
failed to state before the I.O.
I.O that he himself sustained injury
due to brickbatting or that his injury report could not be proved
proved.
The evidence given by this witness relating to the assault on the
deceased is getting corroboration from the medical evidence.
evi ence. No
doubt the doctor (P.W.
(P.W.8) has stated that external injury no.(ix)
no.
could be caused by fall but the contention of the learned counsel
for the appellants
pellants that all the injuries we
were
re possible by fall is n
not
acceptable, as those we
were cut injuries on different
ferent parts of the
body like left upper arm, right scapula, right leg, right knee,
right foot, right leg and left foot of different sizes.
Thus, we are
ar of the view that the learned trial
rial court has
rightly placed reliance
eliance on the evidence of P.W.15
P.W.15.
Corroborating evidence to the evidence of three eye
witnesses:
14. The
he learned counsel for the appellants contended
that apart from P.Ws.1, 6 and 15, the other eye witnesses like
P.Ws.2,
2, 3, 4, 5, 7, 10, 11, 12, 13, 18 and 19 have not impleaded
the appellants
s in the assault of the deceased
deceased,, whereas the
learned counsel for the State argued that the other eye
witnesses who had not seen the assault on the deceased on the
land of Padmanav Sahu have stated about the other aspects of
the prosecution case and moreov
moreover, the evidence of P.Ws.3,
P.Ws. 10,
11 and 12 corroborate the version of the three eye witnesses
regarding the participation of the appellants in the occurrence
occurrence.
As is revealed from the sequence of events that
transpired, on
n the date of occurrence in the morning at about 8
a.m., the accused
cused persons assembled near the house of the
deceased being armed with different weapons, damaged the
house of the deceased and ransacked the properties. They also
caused similar activities in respect of the houses of some o
other
villagers.. When the deceased and his family members leaving
their house, entered inside the house of P.W.3 Pandari Naik out
of fear to take shelter, one of the accused namely, Bidyadhar
Sahu came over the thatch of P.W.3, pulled out the thatch to
make a hole on the thatched roof,
roof, located the deceased inside
the house of P.W.3, announced the presence of the deceased for
which some accused persons started breaking and demolishing
the house of P.W.3. The deceased tried to escape through the
back door of the
he house of P.W.3,
P.W.3 but the appellants chased him
being armed with different weapons, overpowered him on the
land of Padmanav Sahu and then assaulted him to death.
Apart from the eye witnesses P.Ws.1, 6 and 15
whose evidence we have already discussed
discussed, the following
witnesses also state about the various roles played by the
appellants on the date of occurrence.
P.W.3 Pandari Naik has stated that he was in his
house at the time of occurrence which took place at 8 a.m. The
accused persons broke and damaged the
the house of the deceased
and P.W.15, chased them and their family members to his
house. The family members of the deceased got panicked and
rushed to his house to take shelter and shut themselves inside a
room and closed the front door. He further stated that A
A-1 was
armed with a Katuri, A
A-2
2 was armed with a Pharsa, A
A-3 was
armed with a Tangia, A-4
A 4 was armed with a Katuri, A
A-5 was
armed with
ith a Kanta, A
A-6
6 was armed with a Pharsa and appellant
Raja Dehuri (dead) was armed with a Pharsa. The other a
accused
persons were armed with thenga, llathi
athi and different kinds of
lethal weapons.. He further stated that seeing the violent mood of
the accused persons, he fled away through the back side of the
house.
P.W.10 Basanti Dei, the daughter of the deceased
has stated that her ho
house
use was razed to the ground, her father
was chased by A-1,
1, A
A-2, A-3, A-4, A-5, A-6
6 and appellant Raja
Dehuri (dead) towards th
the
e land of Padmanav Sahu being armed
with deadly weapons like Katuri, Kanta, Axe and Bhujali, but she
could not go to the rescue of her father.
P.W.11 Chaitan Naik has stated that on the date of
occurrence, after he and his wife were assaulted, he saw the
deceased was running towards Gahira after coming out of the
house of P.W.3 being chased by A-1, A-2, A-3, A-4,
4, A
A-5,
appellant Raja Dehuri (dead) armed with deadly weapons.
P.W.12 Prafulla Majhi has stated that accused
Bidyadhar climbed on the thatch roof of P.W.3, made a peep hole
and announced that the deceased had taken shelter there, as a
result of which some of the accused persons started breaking the
house of P.W.3. He further stated that the deceased escaped
towards Gahira and he was chased by appell
appellant
ant Raja Dehuri
(dead), A-1, A-2, A-3,
3, A
A-4, A-5, A-6
6 being armed with weapons.
While assessing the evidence of the eye witnesses
P.Ws.1, 6 and 15 regarding the participation of the appellants in
the assault of the deceased and other corroborating evidence of
P.Ws.3, 10, 11 and 12,, we have kept in view the ratio laid down
by the Hon'ble Supreme Court in the case of Muthu Naicker
(supra), wherein it is held as follows:-
"6.
6. Where there is a melee and a large number
of assailants and number of witnesses claim to
have witnessed the occurrence from different
places and at different stages of the occurrence
and where the evidence as in this case is
undoubtedly partisan evidence, the distinct
possibility of innocent being falsely included with
guilty cannot be eas
easily
ily ruled out. In a faction
faction-
ridden society where an occurrence takes place
involving rival factions
factions, it is but inevitable that
the evidence would be of a partisan nature. In
such a situation tto
o reject the entire evidence on
the sole ground that it is parti
partisan
san is to shut
one's eyes to the realities of the rural life in our
country. Large number of accused would go
unpunished if such an easy course is charted.
Simultaneously, it is to be borne in mind that in
a situation as it unfolds in the case before us,
the
he easy tendency to involve as many persons of
the opposite faction as possible by merely
naming them as having been seen in the melee
is a tendency which is more often discernible
and is to be eschewed and, therefore, the
evidence has to be examined with utmost care
and caution. It is in such a situation that this
Court in Masalti -Vrs.- State of U.P. : A.I.R.
1965 S.C. 202 adopted the course of adopting
a workable test for being assured about the role
attributed to every accused.
accused."
The Hon'ble Supreme Court in the case of Masalti
(supra) has held as follows:-
follows:
"15.....Where
Where a crowd of assailants who are
members of an unlawful assembly proceeds to
commit an offence of murder in pursuance of the
common object of the unlawful assembly, it is
often not possibl
possible
e for witnesses to describe
accurately the part played by each one of the
assailants. Besides, if a large crowd of person
armed with weapons assaults the intended
victims, it may not be necessary that all of them
have to take part in the actual assault.
assault."
In the case of State of Maharashtra -Vrs.- Ramlal
Devappa Rathod and others reported in (2015) 15
Supreme Court Cases 77
77, it is held as follows:-
"24.
24. The liability of those members of the
unlawful assembly who actually committed the
offence would depend upon the nature and
acceptability of the evidence on record. The
difficulty may however arise, while considering
the liability and extent of culpabi
culpability
lity of those
who may not have actually committed the
offence but were members of that assembly.
What binds them and makes them vicariously
liable is the common object in prosecution of
which the offence was committed by other
members of the unlawful assembly.
assembly. Existence of
common object can be ascertained from the
attending facts and circumstances. For example,
if more than five persons storm into the house
of the victim where only few of them are armed
while the others are not and the armed persons
open an assault, even unarmed persons are
vicariously liable for the acts committed by
those armed persons. In such a situation it may
not be difficult to ascertain the existence of
common object as all the persons had stormed
into the house of the victim and it could be
assessed with certainty that all were guided by
the common object, making every one of them
liable. Thus when the persons forming the
assembly are shown to be having same interest
in pursuance of which some of them come
armed, while others may not be so armed, such
unarmed persons if they share the same
common object, are liable for the acts
committed by the armed persons."
persons.
Thus the learned counsel for the State is right in his
submission that the evidence of P.Ws.3, 10, 11 and 12
corroborate the version of the three eye witnesses P.Ws.1, 6 and
15 regarding the participation of the appellants in the
occurrence. In the face of such clear, consistent and cogent
evidence on record, we are of the view that on the date of
occurrence, the appellants being
being armed with deadly weapons
weapon
formed an unlawful assembly, forcibly damaged the house of
P.W.3, chased the deceased who tried to escape through the
back door of the house of P.W.3 and overpowered him on the
land of Padmanav Sahu and assaulted him with weapons
ons as a
result of which the deceased succumbed to the injuries.
Scrutinising the evidence cautiously, we found that iitt is not a
case of mere presence of the appellants in the unlawful assembly
as members of the unlawful assembly or as curious spectators
but it indicates their participation in the commission of the
offence by overt act or knowing that the offence which was
committed was likely to be committed by any member of the
unlawful assembly in prosecution of the common object of the
unlawful assembly
ly and that they becoming or continu
continuing to
remain members of the unlawful assembl
assembly and their participation
by the overt act is satisfactorily established.
established
The
he learned counsel for the appellants argued that
the weapons held by the appellants were sharp cutting
cutting weapons
and therefore, the injury no.(ix) as per the post mortem report
which is a lacerated injury could not have been possible by any
of such weapons. He placed reliance in the case of Hallu
(supra), the Hon'ble Supreme Court held as follows:
follows:-
"11. The post
post-mortem
mortem report prepared by Dr. N.
Jain shows that on the body of Jagdeo were
found three bruises and a haematoma. On the
body of Padum were found four lacerated
wounds and two bruises. According to the eye
witnesses, the two men were attacked with
lathis, spears and axes but that clearly stands
falsified by the medical evidence. Not one of the
injuries found on the person of Jagdeo and
Padum could be caused by a spear or an axe.
axe
The High Court however refused to attach any
importance to this aspect of the matter by
saying that the witnesses had not stated that
"the miscreants dealt axe blows from the sharp
sharp-
side or used the spear as a piercing weapon."
According to the High Court, axes and spears
may have been used from the blunt side and
therefore, the evidence of the eyewitnesses
could safely be accepted. We should have
thought that normally, when the witness says
that an axe or a spear is used, there is no
warrant for supposing that what the witness
means is that the blunt side of the weapon was
used.
ed. If that be the implication, it is the duty of
the prosecution to obtain a clarification from the
witness as to whether a sharp-edged
sharp edged or a
piercing instrument was used as a blunt
weapon.""
In the case in hand, the doctor (P.W.8) has noticed
eight cut injuries on different parts of the deceased which were
possible by sharp cutting weapons. The doctor has specifically
stated that injury no.(ix) could be caused by Katuri and he has
stated that M.O.II was the Katuri produced before him fo
for his
opinion. Therefore, the oral evidence and post mortem report
findings in the case of Hallu (supra) and the case in hand is
completely different.
Whether the act of the appellants fall within 302/149
I.P.C. or 304 Part--II/149 I.P.C.:
15. The post-mortem
post em report (Ext.14) proved by P.W.8
P.W.
indicates that out of the nine injuries, eight injuries were on the
non-vital
vital parts of the body like left upper arm, right scapula,
right leg, right foot, left leg, left foot and only one injury was on
the left frontal region.
gion. Of course, the doctor has stated that there
was fracture of humerus bone at its middle and fracture of right
second and third metacarpal bones. However, none
none of the
injuries has been opined to be individually or collectively
sufficient in the ordinar
ordinary
y course of nature to cause death. The
weapons which were in the hands of the appellants were deadly
weapons and they could have easily caused injuries on the vital
parts of the body of the deceased and more in numbers had they
got intention to commit murd
murder
er of the deceased. There is no
evidence as to who caused the fatal injury on the head. Though
the cause of death was opined due to laceration of the brain
matter and associated by multiple injuries on different parts of
the body, but the doctor admits in the cross-examination
examination that he
had not mentioned in Ext.14 that the death of the deceased was
due to shock and cumulative effect of all the injuries. In Ext.14,
it is mentioned that the death was due to injury to head causing
laceration of brain matter.
In the case of Nadodi Jayaraman (supra),
(supra) the
Hon'ble Supreme Court held as follows:
"19.....A
A critical analysis of the injuries received
by the deceased, which have been extracted
elsewhere in the judgment, goes to show that
the deceased had suffered 15 lacerations, 12
bruises and five contusions. Injuries 1 to 11 had
been caused on his legs, knees, ankle etc., while
injuries 26 to 29 were on the thigh and lower
part of the abdomen. Injuries 12 to 17 and 32
had been caused on the forearm, elbow and the
possibility
ssibility of those injuries having been received
by the deceased while trying to ward off the
blows on the vital parts of his body cannot be
ruled out. The remaining injuries were two
bruises on the front and on the right side of the
chest and two lacerati
lacerations of 2 x 1 cms. near the
right side of the nose and the inner end of the
right eyebrow. There were two lacerations on
the right temporal region and one on the right
occipital region. It was only injury No.22
22 viz.
"laceration on the back of the left side of the
frontal region, 5 x 2 cms. bone deep, fissured
fracture 10 cms. vertical of frontal bone,
extending to base with commentated fracture of
the left orbital place", which was found to be
sufficient to cause death in the ordinary course
of nature. Accor
According to the medical witness, all
the injuries, except injury No.22,
No.22, were simple in
nature and could not have by themselves caused
death but those injuries could have precipitated
the death. Since, the evidence of the
prosecution unmistakably asserts that iinjuries
njuries
had been caused to the deceased by all the six
accused and some injuries had been caused
exclusively by A
A-2 and A-3
3 alternatively, during
the third part of the occurrence, it cannot be
said with certainty that the intention of the
accused was to ca
cause death of Pratap Chandran
deceased. This is more so because according to
the medical evidence
evidence, the deceased had died
"due to shock and haemorrhage on account of
multiple injuries", and according to the
prosecution version all the seven accused had
caused
d the injuries and not only A-2
A 2 and A
A-3.
The accused party was armed according to the
prosecution evidence, with iron rods and pipes
and not with any other lethal weapon. If the
accused had the intention to cause death of the
deceased, they would have probably
probably come
armed with more formidable weapons. Again,
looking to the nature of injuries, which except
for injury No. 22, were only simple and no other
grievous injury was even caused, it appears to
us that the accused possibly wanted to chastise
the decease
deceasedd for his trade union activities. The
seat of the injuries as also their nature fortifies
our view. According to the prosecution case
itself, after Pratap Chandran had fallen down in
the third part of the incident, none of the
accused took advantage and caused
caused any other
injury to him. Most of the injuries, as already
noticed, were on non-vital
non vital parts of the body.
From the evidence and circumstances of the
case, the appellants do not appear to have had
the intention causing the death of the deceased
or even causing
c such bodily injury
y as was likely
to cause death. They can at the best be
attributed with the knowledge that their act was
likely to cause death or to cause such bodily
injury as was likely to cause death, since a
number of injuries had been caused and
nd injury
No.22
22 was sufficient in the ordinary course of
nature to cause death. It is not as if A-2
A 2 and A
A-3
alone were armed with iron rods and pipes, with
which the injuries were caused and their
acquitted co-accused
co accused were unarmed. The
acquitted co-accused,
co , according to the
prosecution evidence, were also armed with iron
rods and pipes and as such it would be
hazardous to guess as to which blow was caused
by which accused. If common intention to cause
death had been established in the case, the
prosecution would not have been required to
prove which of the injuries was caused by which
accused to sustain the conviction of the accused
with the aid of Section 34 I.P.C.,
I , but in a case
like this, where five of the co
co-accused
accused stand
acquitted and the common intention
intention to cause
death is not established beyond a reasonable
doubt, the prosecution must establish the exact
nature of the injuries caused to the deceased by
the accused with a view to sustain the conviction
of that accused for inflicting that particular
injury.
y. The evidence on the record does not lead
to the conclusion that A
A-2 and A-3
3 alone caused
all the injuries to the deceased with the intention
to cause his death. The broad circumstances of
the case impel us to hold that the common
intention of A-2
A and A-3
3 was not to cause the
death of the victim and therefore,
therefore neither of
them can be held guilty of the offence under
Section 302/34 IPC. Since, the deceased did
succumb to the injuries, caused collectively, the
appellants can only be held guilty of committing
culpable homicide not amounting to murder. The
act can be said to have been committed by the
accused with the knowledge that it was likely
likely to
cause death or to cause such bodily injury as
was likely to cause death of Pratap Chandran.
Learned Counsel for the appellants have not
been able to persuade us to subscribe to the
view that A
A-2 and A-3
3 can only be clothed with
the intention of ca
causing
using grievous hurt,
punishable under Section 325/34 IPC. The
offence of the appellants would, in our opinion,
squarely fall under Section 304 Part II IPC.
Thus, setting aside the conviction of the
appellants for an offence under Section 302/34
IPC, we alt
alter
er their conviction and hold them
both guilty of the offence under Section 304 Part
II IPC."
In the case of Molu and others -Vrs.- State of
Harayana reported in A.I.R 1976 Supreme Court 2499 :
(1978) 4 Supreme Court Cases 362,
362 it has been held that in
a situation
ituation where the multiple injuries were caused
cause on the
deceased
ed by lathis and were of minor character and there was no
material to show that the accused
accused did not intend to cause
deliberate murder, the accused is said to have committed an
offence under
er Section 304, Part-II,
Part I.P.C and not under Section
302, I.P.C.
In the case Chuttan and others -Vrs.- State of
Madhya Pradesh,, reported in 1994 Criminal Law Journal
2097 (SC) : 1994 Supreme Court Cases (Cri) 1801
1801, it has
been held that where
here the accused person inflicted injuries on
the deceased by stick portion of the spear on any vitals part of
the body,, the accused had no intention to cause the death or to
cause such injuries, which were sufficient in ordinary course of
nature to cause
e death,
death, but had knowledge of causing such
injuries they are likely to cause death of
of the deceased, the
accused can be convicted under section 304, Part
Part-II,
II, I.P.C.
In the case of Dilip Kumar Pradhan & Another
-Vrs- State of Orissa reported in (2000) 18 Orissa Criminal
riminal
Reports 185, this Court has observed as follows:
"10. xxx xxx xxx
From the evidence on record, it appears
that there were no previous enmity between the
parties and the assault
assault was started after there
was same altercation with regard to return of
the radio-cum-tape
radio tape recorder to the deceased by
the accused persons which, he delivered to
them, for purchase. According to the eye-
eye
witnesses, the injuries were inflicted by a lathi
and
d a web belt by both the accused-appellants.
accused appellants.
In the circumstances, the accused persons
cannot be imputed with the intention of causing
death of the deceased, but however, knowledge
could be imputed to the accused that their act
was likely to cause death. Law
Law is well settled
that where the multiple injuries received by the
deceased were caused by blunt weapons like
lathi and the injuries were not on any vital part
of the body and there in nothing to show that
the accused intended to cause the deliberate
murder
er of the deceased, the offence attributable
to the accused persons will be under Section
304, Part
Part-II
II and not under Section 302,
I.P.C......
.....
11. In the case at hand, it has not been proved
that anyone of the injuries inflicted on the
deceased by the accused
accused-appellants
appellants were
sufficient in the ordinary course of nature to
cause death, but the cumulative effect of the
injuries inflicted was the cause
cause of death. The
ocular evidence coupled with the medical
evidence shows that the blows with lathi and
web belt were given on different parts of the
body including in the palatine region and there
was no premeditation and it all happened
because of the allegation
allegation against the accused
that the tape recorder
recorder-cum-radio
radio sought to be
sold its a stolen property and return of the same
on demand by the deceased, the accused person
fall under Section 304, Part
Part-II,
II, I.P.C. From the
nature of the injuries and the weapon
weapons
s used like
lathi and web belt and the place of the injuries
on the body of the deceased, it cannot be said
that the accused
accused-appellants
appellants intended to cause
death. The knowledge that their act was likely to
cause death of the deceased however can be
attributed and as such, we are of the considered
attributed
opinion that in the facts and circumstances of
the case, the accused
accused-appellants
appellants have
committed an offence under Section 304, part
part-
II/34, I.P.C. and their conviction under Section
302/34, I.P.C. cannot be sustained. In
In view of
what has been discussed in the proceeding
paragraphs and the evidence on record, the
conviction recorded by the learned Sessions
Courts has to be confirmed.
confirmed."
In the case of Kalinder Bharik -Vrs.- State of
Himachal Pradesh reported
d in 2000 Supreme Court Cases
(Cri) 96,, the Hon'ble Supreme Court has held as follows:
"7. None of the injuries can be said to be
individually or collectively sufficient in the
ordinary course of nature to cause death. This is
a case where death became th
the
e consequence
because of excessive bleeding. Therefore, it is
not a case which can be brought under any one
of the four clauses under section 300 I.P.C. It
would remain only within the range of culpable
homicide not amounting to murder.
7. We therefore, alter the conviction to section
304 Part II IPC."
In the case of Sudina Prasad and others -Vrs.-
State of Bihar repo
reported in 2003 Supreme Court Cases
(Cri) 1692,, the Hon'ble Supreme Court has held as follows:
"5. Learned counsel for the appellants felt that it
is more prudent to focus his arguments on the
aspect of altering conviction from section 302,
IPC. For supporting his contention, learned
counsel brought to our notice two important
features in the eviden
evidence; one is that A-1
1 Sudina
Prasad was armed with a gun which wa
was
s a live
gun and accused Vashisht Gope was armed with
a pistol. In spite of such possession of lethal
weapons, neither of them used it. Learned
counsel contended that if the intention was
murderr the deceased, at least A-1
A 1 would have
fired the gun.
6. The second feature is that 11 out of 12
injuries did not cause any damage to the
internal organs. It is the horizontal bruise on the
left side of the back, which possible would have
caused the frac
fracture of the ribs.
7. We feel that the aforesa
aforesaid
id arguments based
on the above
abovementioned
mentioned two broad features is a
strong circumstance for us to think that the
common intention of the assailants was only to
thrash the deceased and to inflict him with
injuries. The grievous injury caused need not
necessarily have been intended by them.
Nonetheless they should have been credited with
the knowledge that such injuries could possibly
result in his death.
8. For the aforesaid reasons, we are inclined to
accept the arguments of the learned counsel for
the appellant. We, therefore, alter the conviction
from Section 302 IPC to Section 304 Part--II,
IPC. Hence, we therefore, convict the appellant
for the said of
offence read with Section 149 IPC
instead of 302 IPC."
From the evidence and circumstances of the case and
the ratio laid down in the aforesaid citations
citations, we are of the view
that the appellants do not appear to have had the intention
causing the death of th
the
e deceased or even causing such bodily
injury
y as was likely to cause death. They can at the best be
attributed with the knowledge that their act was likely to cause
death or to cause such bodily injury as was likely to cause death.
death
We, therefore, alter the conviction of the appellants from section
302/149 of I.P.C. to s
section 304 Part-II
II I.P.C./149 of I.P.C.
There are enough materials on record that the appellants were
not only the members of unlawful assembly as defined under
section 142 of I.P.C., but they
they have used force or violence in
prosecution of the common object of such assembly and thus
committed offence of rioting as defined under section 146 of
I.P.C. punishable under section 147 of I.P.C. and they were
armed with deadly weapons and thus there is no error in the
impugned judgment of the learned trial Court in convicting the
appellants under sections 147 and 148 of I.P.C.
The appellants were taken into judicial custody in
connection with the case on August 1994 and were released from
judicial custody
ody on bail 19.05.1997 and after pronouncement of
judgment by the learned trial Court on 19.12.1997, they were
again taken into judicial custody and were enlarged on bail by
this Court vide order dated 06.03.2000 in this CRLA and as such
they have remained in custody for a period of five years. A
A-1, A-
2 and A-4
4 are now aged more than 60 years and A-3,
A A-5
5 and A-
A
6 are now aged more than 55 years. No adverse report has been
produced against any of the appellants though they are
re on bail
for more than 25 years. The occurrence in question took place in
the year 1994 and in the meantime, more than 30 years have
passed. Therefore, we are of the view that no useful purpose
would be served in sending the appellants to custody again.
Keeping in view all the facts and circumstances of the case, while
altering the conviction of the appellants from Section 302/149 of
I.P.C. to Section 304 Part
Part-II I.P.C./149 of I.P.C., the sentence of
imprisonment is directed to be reduced to the period already
undergone.
Conclusion:
16. In the result, tthe
he Criminal Appeal is allowed in part.
The conviction of the appellants under section 302/149
/149 of the
I.P.C. is altered to one under section 304 Part-II/149 of the
I.P.C. and the sentence of imprisonment is reduced to the period
already undergone.. No separate sentence is awarded for the
conviction of the appellants under sections 147 and 148 of I.P.C.
17. Before parting with the case, we would like to put on
record our appreciation to Mr. Devashis Panda,, learned counsel
for his preparation and presentation of the case before the C
Court
and rendering valuable help in arriving at the decision above
mentioned. This Court also appreciates the valuable help and
assistance rendered by Mr. Jateswar Nayak,, learned Additional
Government Advocate
dvocate for the State.
................................
...............................
S.K. Sahoo, J.
.............................
..................................
Chittaranjan Dash, J.
Orissa High Court, Cuttack
The 21st August 2025/PKSahoo
Location: HIGH COURT OF ORISSA
