Trinath Kaibarta & Others vs State Of Orissa
2025 Latest Caselaw 10821 Ori

Orissa High Court

Trinath Kaibarta & Others vs State Of Orissa on 9 December, 2025

        THE HIGH COURT OF ORISSA AT CUTTACK

                        CRA No. 347 of 1994
(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)

Trinath Kaibarta & others       .......                      Appellants

                               -Versus-

State of Orissa                 .......                     Respondent

For the Appellants : Mr. Bikram Pratap Das, Advocate

For the Respondent : Mr. Sarathi Jyoti Mohanty, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 02.12.2025 :: Date of Judgment: 09.12.2025

S.S. Mishra, J. Four appellants have conjointly preferred the

present Criminal Appeal assailing the judgment of conviction and

order of sentence dated 16.09.1994 passed by the learned Sessions

Judge, Kalahandi-Nuapada at Bhawanipatna, Nuapada Circuit in S.C.

No.27 of 1993 convicting the appellants finding them guilty of the

alleged commission of the offences punishable under Sections

323/452/34 of the IPC. All the accused persons were sentenced to

undergo R.I. for a period of one year on each count.

2. The prosecution case in terse and brief is that the deceased

Lalsingh Bariha and the accused persons belong to the same village

Puruna-Lakhana under Nuapada Police Station in the same district.

On 31.12.1990 noon, the deceased Lalsingh Bariha abused the

accused persons in filthy language alleging that they allowed their

drain water to pass in front of his house causing inconvenience. At

that time, accused appellant no.1, Trinath Kaibarta was not at his

home. In the evening, after reaching home and knowing about the

incident, he along with his sons accused appellant no.4, Chhota @

Rabi Kaibarta, accused appellant no.3, Chhabi Kaibarta and his

brother accused appellant no.2, Mangala Kaibarta challenged

Lalsingh Bariha. The above four accused persons rushed to the house

of Lalsingh Bariha and dragged him out of the house by using

obscene languages and saying that they would take him to the Police

Station and took him towards Lakhana Out Post. There was none in

the house except the wife of Lalsingh Bariha, namely, Sumitra Dei

(P.W.1) who protested the same. In the night, Sumitra could not

inform this fact to anybody. In the midnight, the accused persons

brought Lalsingh Bariha and made him lie down in front of his house.

He was unable to talk. In the next morning, Sumitra Dei found

bleeding injury over the body of Lalsingh Bariha and blood coming

out of the nostril and mouth. She called Ugrasen Bariha, her nephew

and with his help, took her husband inside the house, made him lie

down on a cot. On 01.01.1991 at about 10 a.m., Lalsingh Bariha

succumbed to the injuries. The villagers arrived at the spot. Sumitra

Dei narrated the entire incident, went to Lakhana Out Post and

reported to the A.S.I. of Police Sri L.N. Satapathy, who directed her

to give a report in writing. Sumitra got a report written by Siba Prasad

Mishra and submitted at the Out Post, on the basis of which U.D.

Case No.1/91 was registered, but no action was taken by the A.S.I. of

Police Sri L.N. Satapathy. Therefore, Sumitra Dei moved the higher

authorities. In the meantime, the A.S.I. came to the spot after two

days by getting the written report submitted by Sumitra Dei. On the

allegation made by Sumitra Dei to the higher Police Authorities Sri

N.C. Singh, Inspector of Police, who was Additional C.I., Nuapada

took up the investigation. The A.S.I. of Police held inquest over the

dead body on 02.01.1991 at about 8.30 a.m. as per the inquest repot

marked as Ext.5 and sent the same for post mortem examination. On

his own information, Sri N.C. Singh drew up plain paper F.I.R.

3. In order to bring home the charge against the accused persons,

the prosecution relied on the evidence of 13 prosecution witnesses

including the informant Sumitra Dei as P.W.1. P.W.8 and P.W.9 are

the witnesses for dragging the accused from the house. P.W.10 was

the scribe of the F.I.R. lodged by P.W.1, P.W.2 and P.W.3 are the

Police Constables present at Lakhana Out Post when Lalsingh was

produced at the Out Post by the accused persons. P.W.5 and P.W.6

are the witnesses to the seizure. The Doctor, who performed the

autopsy over the dead body, was examined as P.W.4 and P.W.13 was

the Professor, F.M.T., S.C.B. Medical College, Cuttack. P.W.11 and

P.W.12 were the Investigating Officers. None was examined on

behalf of the defence.

4. After the investigation, the charge sheet was filed. The

appellants took a stance of complete denial and claimed trial.

Therefore, after framing of the charges, the appellants were subjected

to trial.

5. Heard Mr. Bikram Pratap Das, learned counsel appearing for

the appellants and Mr. Sarathi Jyoti Mohanty, learned Additional

Standing Counsel appearing for the State.

6. Initially, the appellants stood charged for the offences

punishable under Sections 302/452/34 of the IPC. The prosecution

examined 13 witnesses including the informant as P.W.1. P.W.8 and

P.W.9 were examined by the prosecution as eye witnesses. P.W.10

was the scribe of the F.I.R. at the instance of P.W.1. P.W.5 and P.W.6

were the witnesses to the seizure whereas, P.W.4 and P.W.13 were

the doctors, who had examined the deceased and conducted the post

mortem examination. P.W.11 and P.W.12 were the Investigating

Officers of the case.

7. The learned trial Court, on examination of the evidence of the

prosecution arrived at the conclusion that this is not a case under

Section 302/34 of the IPC. Rather, the prosecution could prove its

case attracting the offence under Sections 323/452/34 of the IPC. The

learned trial Court, has recorded the findings which reads thus:

"6. We next come to the offence U/s 302/34 I.P.C. Except dragging the deceased from his house by the accused persons and again bringing him some time in the mid night, making him lie down in front of his house P.W.1 has not seen the accused persons assaulting her husband but she states that on next morning she found blood coming out the mouth of her husband who told that the accused persons assaulted him and may not survive. But P.W.1 has not stated before the I.O. that her husband told that these accused persons assaulted him, P.W.7 her nephew also states that in the early morning being called by his elder mother telling that the accused persons had made his elder father lie down became, carried his elder father inside the house when he found bleeding. His elder father

expressed that he was assaulted and may not survive. He expired at about 9. A.M. P.W.8 also states that these accused persons dragged Lalsingh Bariha out of his house and apprehending that they may assault Lalsingh the old man to asked his brother to go and bring Lalsingh Back. At noon he heard that Lalsingh expired. In his cross examination he states that he did not interfere with the accused persons dragged and took away Lalsingh since on prior occasion also they did not listen him. P.W.9 has stated that while he was sitting in his house at the time of dinner he saw the accused Chhabi and Mangal catching hold of both the hands of Lalsingh and the other two accused persons standing stating that they are taking Lalsing to the P.S. He requested them not to take the old man to the P.S. The Sector P.W.4 who performed the sutopsy over the deadbody of Lalsingh on 2.1.91 at 4 P.M. found abrasion on the left knee joint anteriority 2 below the lower and of spatala of size 2"x2", another abrasion on the medial spicondily on the right knee of size 2"x2", a third abresion on the left granter trochander of size 1"x1", and the 4th abrasion on the left shoulder size 1" x 1". The injuries are antenortem in nature. The injures were simple in nature and cause of death was hyponsive heart failure. Time since death was within 24 to 36 hours. There was no small of alcohol, no accimesis or ulcer in the mouth, as per his report marked Ext. 2. In the cross- examination the Doctor opined that none of the injuries are on the vital part of the body and the 4 injuries are possible by different falls. The accused was a cronic heart patient since the heart was salarged and walls were thicken and the chambers were filled with black blood. P.W. 13 is the then Professor and Heard of Department of F.M.T.-cum-modicological adviser of Government of Orissa at S.C.B. Medical College, Cuttack. P.W.11 had made a query to the Professor with regard to the inquest and postmortem reports and P.W.13 opined that the postmortem findings were clear that the death of the accused was croximately to syncops arising out of hypertansive heart failure, and the postmortem report also mentions about multiple simple injuries on the body sustained by blunt form impact prior to death. Usually fiat blows and kicks do not aggravate hypertensive heart failure, but it aggravate by excitament and exhaustion. This opinion of P.W.4 was not aggressed to by P.W.13 who states that he does not agrees with the opinion since the fist blow and kick blows sustained at the time of assault can cause both physical and mental set aback of such magnitute so as to aggravate pre-existing heart disease

and precipitate in death due to heart failure. Ext.9 is his report.

Therefore the medical opinion is that the death was due to hypertensive heart failure. The I.D. had made the query if it is possible by fist blows and kicks and the medical opinion from the mouth of P.W.13 is that is aggravates both physical and mental and consequently cause heart failure. But in the present case none of the witnesses state that the accused parsons assaulted the deceased. We find from the months of P.Ws. 1,7,8 and 9 that the accused persons were dragging Lalsingh P.Ws. 2 and 3 the two police constables have seen Lalsingh at the Out Post. Since there is no direct or circumstantial evidence before us that these accused persons had assaulted Lalsing with intention to take away his life, the offence of murder U/s 302 I.P.C. cannot be made out. Rather the Doctor found only abrassions which are simple in nature and not on the vital part of the body. Sec. 323 I.P.C, reads that whoever voluntarily causes hurt shall be punished. I have already found above that the accused persons trespassed into the house of Lalsingh Bariha. I also find that they dragged Lalsingh Bariha from his house up to the Out post and again brought him back, made him lie down infront of his house. The injuries were found on his body by his wife nephew as well as by the Doctor Since the offence is not one of culpable homicide it is a case of voluntarily causing hurt to Lalsingh by dragging him in furtherance of their common intention of the father, his two sons and the brother who are the above four accused persons. Therefore the evidence adduced by the prosecution though not sufficient to bring home the charge U/s 302/34 I.P.C.is sufficient to bring home the offence U/s 323/34 I.P.C. against all the accused persons beyond any lots of evidence besides the offence U/s 452/34 I.P.C. as discussed Supra."

8. Aggrieved by the aforementioned findings of the learned trial

Court, which led to the conviction of the appellants, they have

preferred the present Criminal Appeal conjointly.

9. At the outset, Mr. Bikram Pratap Das, learned counsel for the

appellants submitted that owing to the long pendency of the appeal

and the fact that the incident relates back to the year 1990, he would

prefer to confine the appeal limited to the question of quantum of

sentence instead of assailing the conviction. He further submitted that

the appellants were arrested on 30.09.1991 and they were admitted to

bail by the learned trial Court on 31.12.1991. Hence, as the under trial

prisoner appellants have been incarcerated for exactly three months.

10. Having submitted as above, Mr. Das, learned counsel for the

appellants has mildly pointed out that in the present case the incident

had taken place on 31.12.1990 whereas the F.I.R. was registered after

eight months, i.e., on 25.08.1991. The inordinate delay in registration

of the F.I.R. creates a serious doubt in the prosecution case.

11. I have perused the record to prima facie understand how the

prosecution has explained the delay. It appears from the record that

immediately after the death of Lalsingh, U.D. Case No.1/91 was

registered. The then A.S.I. of Police Sri L.N. Satapathy had not taken

any action. Therefore, Sumitra Dei, wife of the deceased filed a

complaint before the higher Police Authorities, i.e., before the

Additional C.I. requesting him to take up the investigation.

Thereafter, the investigation started picking up. On plain paper F.I.R.

being Ext.7 was registered on the information of one Sri N.C. Singh,

the Police Officer. Thereafter, the O.I.C. of the concerned Police

Station registered P.S. Case No.57/91 by drawing a formal F.I.R. i.e.,

Ext.7/2. This piece of evidence has been established by the

prosecution through the evidence of P.W.11. The prosecution has

fairly explained the cause of delay. That apart, the evidence of P.W.1,

Sumitra Dei, wife of the deceased, who was the prime witness to the

prosecution, throws some light on the prosecution version. She in her

testimony has deposed that her husband quarreled with one Trinath on

the issue of drainage of filthy water in front of her house by the

accused persons. She stated that she has witnessed the quarrel that has

taken place in the morning. In the evening, on the date of incident

again the accused persons picked up quarrel with her husband and

dragged him from the house outside and took him away stating that

they are taking him to Lakhana Out Post. In the night at about 10 to

11 p.m., the accused persons brought her husband to her house and

left him in front of the house which she stated to have seen. She

further deposed that since there was no one in the house, on the next

morning, he called his nephew and took her husband inside the house.

At that time, they saw the blood was coming out from the nostril and

mouth. She further stated that her husband told them that the accused

persons have assaulted him. Subsequently, at about 9 to 10 a.m., her

husband succumbed to the injuries.

12. P.W.9, an independent witness deposed that on the date of the

incident, he found accused Chhabi (A-3) and Mangal (A-2) were

taking the deceased by holding his both hands towards the Police

Station. He requested the accused persons not to take the deceased,

who is an old man to the Police Station.

Similarly, P.W.8 has also deposed. He stated that he has seen

the accused persons dragging Lalsingh (the deceased) to take him to

the Police Station.

13. P.W.4 is the doctor, who conducted autopsy over the dead body

of Lalsingh. He found four injuries which are as follows:

"1. Abrasion on the left knee joint anteriarily 2" below the lower and of patala of size 2" x 2".

2. Abrasion on the medial Epicondily on the right knee of size 2" x 2".

3. Abrasion on the left greater prochander of sixe 1" x 1"

4. Abrasion on the left shoulder of size 1" x 1".

However, the doctor opined that the cause of death of Lalsingh,

who was a 70 years old man is hypotensive heart failure, which is a

natural death.

14. Relying upon the testimony of the aforementioned witnesses,

the learned trial Court has rightly came to the conclusion that the

prosecution could not prove the case against the appellants of the

offence under Section 302/34 of the IPC, as it was not a homicidal

case. Rather the prosecution could successfully bring home the

charges under Sections 323/452/34 of the IPC and sentenced them

accordingly.

15. After going through the evidence on record, I find no reason to

doubt the manner in which the learned trial Court has appreciated the

evidence to arrive at the conclusion. Therefore, I have no hesitation to

affirm the judgment of conviction recorded by the learned trial Court.

16. At this point, Mr. Das, learned counsel for the appellants,

submitted on the quantum of sentence. The appellants were arrested

on 30.09.1991 and exactly after three months, i.e., on 31.12.1991,

they were released on bail. The incident relates back to the year 1991.

The trial went on for about three years and finally the judgment was

pronounced by the learned trial Court on 16.09.1994. Thereafter, the

present Criminal Appeal was filed, which has been pending since

1994.

17. At the time of the incident, the appellant no.1 was 50 years of

age whereas, the appellant nos.2, 3 and 4 were 26, 25 and 20 years of

age respectively. By now, the appellant nos.2, 3 and 4 would be in

their 50's whereas the appellant no.1 must be around 80 years age.

Much water has flown under the bridge by now. The appellants are

already settled in life with their family. Over the years, they have

lived peacefully, well integrated into society, and is presently leading

a stable family life. Incarcerating them at this belated stage would

have a serious and cascading effect on the entire family. Therefore, he

submits that a lenient view should be taken while considering the

sentencing of the appellants.

Mr. Das, learned counsel submits that there is no report on

record which suggests that the appellants are involved in any other

criminal offence. Therefore, he submits that the substantive sentence

of one year imposed by the learned trial Court may be reduced to the

period the appellants have already undergone.

18. Regard being had to the submissions made by Mr. Das, learned

counsel for the appellants, and taking into account the entire

circumstances of the case, the gravity of the offence, the age of the

appellants, I consider it an appropriate case to modify the sentence.

Hence, while affirming the conviction of the appellants recorded by

the learned trial Court on the charges under Sections 323/452/34 of

the IPC, the sentence is accordingly modified to that of the period

which the appellants have already undergone.

19. Accordingly, the CRA is partly allowed and the sentence is

modified in the manner as indicated above.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack Dated the 9th Day of December, 2025/Subhasis Mohanty

Designation: Personal Assistant

Location: High Court of Orissa, Cuttack.