Pabitra @ Ghunu Mahaling And Others vs State Of Orissa
2025 Latest Caselaw 11246 Ori

Orissa High Court

Pabitra @ Ghunu Mahaling And Others vs State Of Orissa on 16 December, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                         CRA No.10 of 1996
                                  &
                         CRA No.24 of 1996
(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)

                          CRA No.10 of 1996

Pabitra @ Ghunu Mahaling and others        .......       Appellants

                                -Versus-

State of Orissa                   .......             Respondent

For the Appellants : Mr. D.P. Dhal, Senior Advocate

For the Respondent : Ms. Suvalaxmi Devi, ASC

CRA No.24 of 1996

Sukal Mallik ....... Appellant

-Versus-

State of Orissa ....... Respondent

For the Appellant : Mr. D.P. Dhal, Senior Advocate

For the Respondent : Ms. Suvalaxmi Devi, ASC CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 11.12.2025 :: Date of Judgment: 16.12.2025

S.S. Mishra, J. Since both the appeals are arising out of a common

impugned judgment, therefore, the same were analogously heard and

judgment was reserved.

In the present case, eight accused persons have been convicted by

the learned Additional Sessions Judge, Bolangir vide impugned

judgment and order dated 22.12.1995 in Sessions Case No.66/20 of 1995

arising out of G.R. Case No.183 of 1994 for alleged commission of

offences under Sections 147/148/149/336 of I.P.C. and in addition to

that, the appellant-Sukal Mallik in CRA No.24 of 1996 found guilty for

the offence under Section 304 Part (I) of I.P.C. On that count, they are

sentenced to undergo R.I. for one month for each of offence U/ss. 147

and 336 of I.P.C. under each count and further imprisonment for six

months R.I. each for offence under Sections 148 and 149 of I.P.C. and to

pay a fine of Rs.500/-, each in default, to undergo S.I. for one month

under each count. The learned trial Court also sentenced convict Sukal

Mallik in CRA No.24 of 1996 to undergo R.I. for 5 years and to pay a

fine of Rs.500/-, in default, to undergo S.I. for six months for offence

U/s. 304 part (I) of IPC. The sentences were directed to run concurrently.

2. Heard Mr. D.P. Dhal, learned Senior Counsel appearing for the

appellants and Ms. Suvalaxmi Devi, learned Additional Standing

Counsel for the State.

3. It is relevant to mention that during pendency of the present

appeals, the appellant No.5 in CRA No.10 of 1996, namely, Upendra

Patel has expired. Therefore, CRA No.10 of 1996 qua the appellant

No.5- Upendra Patel stood abated in the absence of any application

under Section 394 Cr.P.C. by the legal heirs or next friend of the

deceased-appellant. Hence, the appeal is considered in respect of other

appellant Nos.1, 2, 3, 4, 6, and 7 in CRA No.10 of 1996. The appellant-

Sukal Mallik separately challenged the impugned judgment and order by

filing CRA No.24 of 1996.

4. The prosecution case, in brief, is that on 01.05.1994 at around

2:00 p.m., the accused persons came to the house of the informant,

Bhagaban Patel. It is alleged that, on the instigation of accused Upendra

Patel (appellant No.5) to kill Bhagaban Patel, accused Ghunu Mahaling

@ Pabitra (appellant No.1) dealt a tangia blow on the head of Bhagaban

Patel and thereafter inflicted another cut injury on his right leg. The

deceased Nakula Neti, who was the field servant of Bhagaban Patel, who

stated to have come to his master‟s rescue. On questioning the assailants

about the reason for the assault, accused Sukal (appellant in CRA No.24

of 1996) allegedly struck Nakula on the head with a merraha, declaring

that both the informant and his servant were to be killed. At this stage,

the female members of the household intervened and requested the

accused not to continue the assault, while other accused persons were

reportedly pelting stones at the house of the informant. Thereafter,

witnesses Shyamsundar Ghivela and Amar Seth (P.W.6) arrived at the

scene, rescued the informant, and shifted both of them, (the informant

and his field servant) to the hospital. Nakula was subsequently referred

to V.S.S. Medical College, Burla, where he underwent a neurosurgical

procedure. However, before he could recover, his relatives removed him

from the hospital against medical advice to continue treatment at a

nearby facility in their village. Nakula ultimately succumbed to his

injuries. Following the incident, the informant lodged a written report

before the Officer-in-Charge, Sadar Police Station, upon which

investigation was set in motion. On completion of the investigation,

charge sheet was submitted against the accused persons. Charges were

framed and on the stance of complete denial and claim of trial, they were

put to trial.

5. The prosecution, in order to establish the charges, examined

thirteen witnesses. P.W.1 was the doctor, who conducted the post-

mortem examination of Nakula Neti (the deceased). P.W.5, a Professor

in the Department of Neurosurgery, V.S.S. Medical College, Burla, who

deposed that Nakula Neti had been admitted to the Neuro Surgery Ward

of V.S.S. Medical College, Burla, referred from the District

Headquarters Hospital, Balangir, under O.P.D. No. 1023 dated

01.05.1994. He also stated that Nakula had sustained head injuries and

remained unconscious from the time of the injury until he was taken

away by his relatives after a surgical operation on 10.05.1994. P.W.9,

another doctor attached to the District Headquarters Hospital, Balangir,

examined Nakula on police requisition on 01.05.1994. According to his

evidence, he found a lacerated wound measuring approximately 2 inches,

bone-deep, located on the vertex of the left side of the head, about 1 inch

away from the midline, extending longitudinally along the skull. P.W.2

was Dhoba Seth; P.W.6 was Amar Seth, the nephew of P.W.2; and

P.W.7 was Rakhya Seth, the „Dada‟ of P.W.2. P.W.3 was a seizure

witness. P.W.4 was a Constable, who guarded the dead body of Nakula

Neti at the District Headquarters Hospital, Balangir, on 10.05.1994, in

accordance with a command certificate. He also accompanied the dead

body to the post-mortem hall and remained on guard till the morning of

11.05.1994. P.W.8 was Udyan Patel, the widow of the informant,

Bhagaban Patel, who had expired prior to the commencement of the trial.

P.W.10 was a witness to the inquest conducted on the dead body of

Nakula Neti on 10.05.1994. P.Ws.11, 12, and 13 were the Investigating

Officers who conducted the investigation.

The defence examined one witness, Bhagabat Prasad Patel, who

deposed in support of the plea of alibi of the accused Upendra Patel and

Gatikrushna Patel. He stated that both the accused persons had attended

his marriage function on 11.05.1994. In support of his deposition, he

proved an invitation card addressed to Upendra Patel, marked Ext.7.

6. Mr. D.P. Dhal, learned Senior Counsel for the appellants,

contended that the prosecution evidence suffers from material

contradictions which goes to the root of the case and generate substantial

doubt regarding the culpability of the accused. Drawing attention to the

testimonies of P.Ws. 6, 7 and 8, learned Senior Counsel submitted that

all these witnesses have consistently deposed that the accused-appellant

in CRA No.24 of 1996 delivered only a single blow on the head of the

deceased with a weapon described as "Marraha." According to them,

this solitary assault resulted in a grievous injury, on account of which,

Nakula, the deceased later succumbed. However, learned Senior Counsel

argues that this version of a single blow stands wholly uncorroborated by

the medical evidence. The first doctor, who examined the injured, P.W.9,

has clearly noted two distinct injuries one located at the centre towards

the back of the head, and another on the frontal region. This medical

observation by P.W.9, it is submitted, is not an isolated finding, as the

same has been reiterated by the other doctors (P.Ws.1 and 5) who

subsequently treated and conducted the post-mortem on the deceased.

The existence of two separate injuries, therefore, stands firmly

established through medical evidence led by prosecution through

P.Ws.1, 5 and 9.

7. It is urged that the prosecution has offered no satisfactory

explanation as to how two distinct injuries could have been caused by a

single blow, as consistently stated by the eyewitnesses. In the absence of

such explanation, the prosecution has also failed to establish who

inflicted the second injury, or even whether both injuries can be

attributed to the appellant at all. Further, the prosecution evidence does

not clarify which of the two injuries was the fatal, which ultimately

caused the death of the deceased.

8. In view of these serious inconsistencies between ocular and

medical evidence and the prosecution‟s failure to resolve these material

gaps, learned Senior Counsel submitted that the appellants are entitled to

the benefit of doubt. Accordingly, it is argued that the conviction under

Section 304 Part I of the IPC is unsustainable, and at best, the case may

fall under a lesser offence, if not warranting a complete acquittal.

9. In the present case, Amar Seth (P.W.6), Rakhya Seth (P.W.7) and

Udia Patel (P.W.8) were the eye witnesses to the occurrence whereas

Dhoba Seth (P.W.2) was the post-occurrence witness. The narration of

these witnesses in their ocular testimony established the incident. P.W.9

was the doctor, who had first examined the deceased (Nakula Nethi) and

the informant (injured)-Bhagaban Patel. Because of the critical condition

of Nakula Neti, P.W.9 referred him to the hospital for operation, which

was conducted by P.W.5. Unfortunately, Nakula succumbed to the

injuries. P.W.1 was the doctor, who had conducted the post-mortem of

the deceased.

10. Reading of the depositions of the eye witnesses established the

prosecution story to the extent that the incident happened at 2.00 P.M. on

01.05.1994. The accused persons pelted stones on the house of the

informant-Bhagaban Patel. Bhagaban Patel came out of his house and

the accused Upendra said to catch him. Out of fear, Bhagaban rushed

inside the house. On the instigation of accused- Upendra, accused

Pabitra and Hadu rushed inside the house of Bhagaban and dragged him

despite the protest of the wife of Bhagaban (P.W.8). At this, Pabitra dealt

a tangia blow on the head of Bhagaban and then another blow to his right

leg, for which, he sustained bleeding injury. The field servant of

Bhagaban, namely, Nakula Neti came out and protested about the assault

to his master. At this, Sukal came and dealt a merhha blow to the head of

Nakula, as a result of which, Nakula fell down on the ground suddenly.

Nakula sustained bleeding injury on his head. The accused persons ran

away after this incident. Dhoba Seth (P.W.2) came to the spot to whom,

Bhagaban Patel requested to arrange a vehicle for removing them to the

hospital.

11. The narration of the incident by P.W.6 also repeated by P.W.7,

inter alia, stating that on 01.05.1994 at 2 P.M., he heard the shout and

immediately came out from the house. P.W.6 also followed him. He

discovered that accused persons were shouting in front of the house of

Bhagaban Patel and they were armed with lathis and merrahas. Gunu

Mahaling was holding an axe. Accused persons were pelting stones to

the house of Bhagaban, for which, he came out and asked the reason. At

this, Upendra Patel said "Salake Ghichi Ana". Ghanu Mahaling dealt a

pharsa blow to the right side head of Bhagaban and another blow to the

right leg, Bhagaban fell down. Thereafter, Nakula came out of the house

of Bhagaban and tried to protest the assault. Upendra said "Dekho Salake

Ghichiana". Accused Sukal dealt a merraha blow on the head of Nakula.

He further deposed that Dhoba Seth (P.W.2) came from outside and

Bhagaban requested him to arrange a vehicle to shift them to the

hospital. He was subjected to cross-examination by the defence. In the

cross-examination, the defence tried to elucidate from the said witness

that there was past enmity between Bhagaban and the accused persons,

as a result of which, a case under Section 107 Cr.P.C. was initiated

before the court of the Executive Magistrate, which is pending. A

question was also posed to the said witness regarding the manner of

using the tangia to the assault, to which, he has stated that Ghunu

Mahaling dealt blows with a tangia in its sharp side. In so far as the blow

dealt by Sukal to Nakula is concerned, nothing could be elucidated by

the defence from the said witness.

P.W.8 is another eye witness, who is the wife of Bhagaban Patel.

She has deposed that the accused persons pelted stones on the roof of her

house. Her husband went outside to know the reason. At this, Upendra

Patel shouted "Gichi Ana". Accused Ghunu and Hadu dragged her

husband to the village road in front of the house. Ghunu dealt one blow

to the head of her husband and another blow in the right leg. At that

time, Nakula, her field servant came out to save her husband. Accused

Sukal dealt one lathi blow to the head of Nakula, as a result of which, he

fell down and lost his senses. Rakhya Seth (P.W.7) and Amar Seth

(P.W.6) were present in front of their house and seen the incident. She

has also stated that she witnessed the incident vividly. Despite extensive

cross-examination by the defence, no favourbale outcome for the

defence could be elicited from this witness. The post occurrence witness

(P.W.2) who reached the spot immediately after the incident and he was

requested by Bhagaban Patel to arrange a vehicle to remove them to the

hospital and also supported the prosecution and narrated the incident

with accuracy which lend support to the evidence of the eye witnesses.

The narration of the injury caused by the accused persons on Bhagaban

Patel and Nakula Neti also stood corroborated from the evidence of

P.W.9. In view of the unimpeachable evidence of three eye witnesses

namely, P.W.6, P.W.7 and P.W.8, post occurrence witness (P.W.2) and

the doctor (P.W.9), the findings recorded by the learned trial Court in

paragraphs-11 and 12 convicting the appellants in CRA No.10 of 1996

for the offences under Sections 147/148/149/336 of I.P.C. cannot be

found fault with. For convenience of ready reference, paragraphs-11 and

12 of the impugned judgment is reproduced hereunder:-

"11. Now let me come to the charge u/s 323 I.P.C. against accused Pabitra. P.W.6 deposed that Pabitra dealt a tangia blow to the head of Bhagban and then another blow to his right leg. P.W.7 deposed that Pabitra dealt a fasa blow to the right side head of Bhagaban and another blow to the right leg as a result of Bhagaban fell down. Learned counsel drew contradiction between the evidence of p.ws.6,and 7 while drawing my attention to the cross-examination of p.w.6 and examination-in-chief of p.w.7. p.w.6 deposed during his cross-examination that Pabitra dealt two tangia blows in its sharp side to the right side head of Bhagaban, but p.w.7 deposed in his chief that Pabitra dealt a single fasa blow to the right side head of Bhagaban and another to the right leg. P.W.8 corroborated p.w.7. So these witnesses have contradicted each other. Let me verify the evidence of doctor (p.w.9). He found one lacerated wound on the left side of vertex and one abrasion behind the farmer. He found another contusion near mid line on the left side of vertex. So he noticed 3 head injuries and Ghunu none was incised. So the medical evidence do not support the direct evidence of p.w.6 nor the evidence of p.ws. 8

and 9. The later two witnesses claim that accused Ghunu had given one blow with tangia to the head of Bhagaban but the doctor found 3 head injuries. P.W.6 did not state to I.O. that the wife of Bhagaban (p.w.8) came outside seeing the dragging of her husband vide para 6 of p.w.6 and para 5 of p.w.11. So there is reason to suspect the testimony of p.w.8 that he had seen assault to her husband-Bhagaban. P.W.7 could not recollect whether Pabitra dealt fasa blow or cut blow to Bhagaban. His previous statement to I.O. was confronted, but he denied the suggestion of the defence that he did not state to I.O. that Ghunu dealt fasa blow to the right side head and to the right leg of Bhagaban. Again the same thing was confronted to the I.O. vide para 6 of p.w.11 and contradiction was proved. Moreover, one major setback in this consideration is, absence of the evidence of the injured-Bhagaban, who is unfortunately dead. Therefore, the accused Ghunu is fortunate to get the benefit of doubt for the aforesaid contradictory statements of the witnesses and for absence of the evidence of the injured. Hence, prosecution has failed to prove the charge as against Ghunu alias Pabitra u/s 323 I.P.C. beyond all reasonable doubts.

12. Let me come to the other charges u/s 147, 148, 149 and 336 I.P.C. labeled against all the accused persons. P.W.6, 7 and 8 have corroboratively stated that all the accused persons have come to the house of Bhagaban and pelted stones to his house. Their evidence is also convincing that the accused persons were armed with lathies and axes. This proves about their common object. I have already held that one of them assaulted Nakula,

who succumbed to the injuries subsequently. So each one of them is held guilty for offence u/s 149 I.P.C. I have already elicited the defence evidence and the possibility of presence of Upendra at spot cannot be ruled out only because they have attended the marriage function of D.W.1. They have not discharged satisfactorily the burden on them, for this plea of alibi. The purpose of proving Exts.B, C and D is to show that the injured persons were assaulted by their opponent group. It is admitted by the prosecution witnesses that there was a party function in the village. That does not mean that a counter group will attack the victims because of presence of some difference and dispute. Though the defence had taken a plea that a counter case was instituted, which took place at the same time and at the same place between the same groups, yet no document was filed to convince the court about pendency of counter case. Rather, it appears from the evidence that one Laxman had instituted a case, who is not a prosecution witness nor a member of the defence group."

The reasoning recorded by the learned trial Court to arrive at the

aforementioned findings is the culmination of true appreciation of

evidence adduced by the prosecution. Therefore, I agree with such

findings and affirm the conviction recorded by the learned Additional

Sessions Judge, Balangir against all the appellants in CRA No.10 of

1996.

12. Coming to the appeal No.24 of 1996 in so far as the appellant

Sukal Mallik is concerned, this appellant has been convicted by the

learned trial Court for the offence under Section 304 Part-1 of I.P.C.

besides the offences under Sections 147/148/149/336 of I.P.C. and he

has been sentenced to undergo R.I. for five years and to pay a fine of

Rs.500/- and in default, to undergo R.I. for six months. The evidence

against the appellant-Sukal Mallik is also telltale in the instant case. All

the three eye witnesses to the incident have specifically deposed that

when the accused persons were assaulting Bhagaban Patel, Nakula Neti,

the field servant of Bhagaban came to rescue his master, at this, the

present appellant-Sukal Mallik gave a merhha blow to his head, as a

result of which, he instantly fell down and lost his senses. He was

removed to the hospital. P.W.9 attended the said injured at the first

instance, who found two injuries in the head of the Nakula Neti. He in

his examination-in-chief has stated as under:-

"3. On the same day I also examined Nakula Nethi S/o Kailash of Durgapali under Sadar P.S. police requisition and found the following injuries:

1) lacerated wound of size 2" x 1/4" x bone deep placed on the vertex on left side

about 1" away the injury was ridline/longitudinally placed along the skull bone;

2) Irregular lacerated wound of size 1" x 1" x bone deep placed 1½" left to the injury No.1 on the head. The spicules of the bone were found on the surface of injury no2.

The injuries might have been caused within 6 hours of my examination by hard and blunt weapon. I reserved my opinion about the nature of injury in this case. The patient was admitted to surgery ward for further treatment. The patient was in coma stage at that time. Ext.5 is my report and Ext.5/1 is my signature. Injury Nos.1 and 2 in case of Nakula Nethi might have affected the brain. So he was in coma stage. The blow on the head of Nakula was very hard for which spicules of bones were found on the surface of injury No.2 by fracture of skull bone. Both the injuries are possible by a merraha."

In the cross-examination, the said witness (P.W.9) has stated that

the injuries found in the person of Nakula were all distinct and distinctly

placed. The injuries of Nakula were on the vertex of the skull but not on

the parietal.

13. Relying upon the said witness (P.W.9), Mr. Dhal, learned Senior

Counsel appearing for the appellants vehemently argued that all the eye

witnesses have unequivocally deposed that the appellant-Sukal has given

a single merraha blow. Therefore, finding two injuries on the head of

Nakula creates a serious doubt as to how the second injury had occurred

and who caused the second injury.

14. Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the

State on the other hand has taken me to the evidence of P.W1. and P.W.5

coupled with Ext.9 and submitted that the attempt made by Mr. Dhal,

learned Senior Counsel is misplaced because the doctor who has

operated and the doctor who conducted the postmortem have found only

single injury on the head of Nakula.

15. I have analysed the evidence of all the three doctors (P.Ws.1, 5

and 9), the post-mortem report, and the nature of weapon used by the

appellants to cause the injury to Nakula. The two injuries found by

P.W.9 on the head of Nakula Neti, although creates doubt in view of the

specific statement of P.W.9 that both the injuries are distinct and

separate but the suffixed used to describe the second injury that the

injury was "irregular lacerated wound" compel to draw a reference that

the second injury may be an impact injury which was the consequence of

the first injury. This could be further strengthen from the fact that M.O.I.

(the marrah), recovered and exhibited as Ext.9 suggest that it was a huge

wooden plank measuring 5" x 3". A blow inflicted with such a weapon is

capable of causing a serious impact on the head bone/skull. Since the

injuries were on the head, the first blow appears to have caused the

initial injury, and the second injury seems to have resulted from the

impact of the first injury. That‟s the reason, P.W.9 has used the

expression "irregular" before giving his opinion that the second injury

is lacerated wound. P.W.9. at the first instance gave the treatment

because of the complication due to injury No.2 being a fracture in the

spicules of bone, he, referred the patient for operation.

16. P.W.5 was the doctor, who conducted the operation. He in his

examination-in-chief has stated that on 07.05.1994, there was an

operation on the head of Nakula and it was found that left fronto parietal

bone was fractured and its size was 3 c.m. x 2 c.m. Bone piece was

depressed and damaged the brain substance underlying. The underlying

covering of the brain, i.e., Dura matter was torn at the place of

depression and the brain was coming out. The dura was closed and the

wound was closed. He was cross-examined by the defence only to

elucidate that the bone pieces of the fractured bone on the head of

Nakula were removed at the time of repairing of the brain materials.

From the evidence of this witness (P.W.5), it is apparently clear

that he had operated upon the skull and the wound was closed after

operation. Unfortunately, after the operation, the said Nakula Neti

succumbed to the injury. Therefore, the post-mortem was conducted on

police requisition. P.W.1 has conducted the post-mortem. He found that

rigor mortis was present in all the four limbs. A stitch of 4" c.m. was

found in length covering the scalp 4" above left eyebrow. The

underlying skull bone was fractured. There was loss of meningeal tissue

with blood clots present in the subarachnoid space. There was laceration

of brain substance 3" x 3" with broken bone and meningeal tissue

embedded in it. The brain substance was swollen. The cause of death is

due to the injuries on the vital organ such as brain. The post-mortem

report was exhibited as Ext.1. In the cross-examination, he has very

categorically admitted that there was only one external injury, he found

on the head of Nakula.

17. If the evidence of all the three doctors are analysed vis-à-vis the

exhibits i.e. the post-mortem report and Ext.9, the merhha, the

submission made by Ms. Suvalaxmi Devi, learned counsel for the State

gains substance and believable. Except an isolated sentence in the cross-

examination of P.W.9, nothing substantial has come on record to support

that there were two injuries sustained by the deceased. P.W.9 while

narrating the injuries has used the expression "irregular" before the

lacerated wound to describe the injury No.2. Therefore, the irregular

lacerated wound as found by P.W.9 at the first instance has to be seen

and appreciated in the light of the evidence of P.Ws.1 and 5. At the first

instance, P.W.9 might have found such injuries but he was not sure about

such injury and he referred the patient for operation. Being a referral

doctor, his evidence regarding the nature of injury caused to Nakula Neti

takes a back seat once the operating doctor and post-mortem doctor were

examined by the prosecution. Therefore, the conjoint reading of the

evidence of all the three doctors, i.e., P.Ws.1, 5 and 9 coupled with the

documentary evidence, I am not persuaded by the argument placed by

Mr. Dhal, learned Senior Counsel for the appellants.

18. To substantiate his submission and to impress upon the Court, Mr.

Dhal, learned Senior Counsel appearing for the appellants has relied

upon the judgment of the Hon‟ble Supreme Court in the case of Hallu

and others vrs. State of Madhya Pradesh, reported in (1974) 4 SCC

300. He has emphasized on paragraph-11 of the said judgment, which

reads as under:-

"11. The post-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 eyewitnesses 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. 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-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. 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 or a piercing instrument was used as a blunt weapon."

Similarly, Mr. Dhal, has drawn attention to the judgment of this

Court in the case of Hari Das vrs. State of Orissa, reported in 2015

(Supp-I) OLR 774. Paragraph-11 of the said judgment has been placed

before me, which reads as under:-

"11. Now comes the question as regards the legality of the conviction for offence under Section 304, Part-I of I.P.C. as recorded by the trial Court. At this stage, it may be stated that in the proven facts and circumstances the trial Court's view that the case is covered under Exception 1 is a faulty one as it cannot be said that the appellant had received the grave and sudden provocation spontaneously due to said intervention of the deceased in separating him and that Devi Das and offering a request not to indulge in quarrel especially looking at the old age of Deva Das. The conviction for offence under Section 304, Part-I IPC is found to be unsustainable. Simply when the evidence of P.W.9 is gone through as regards the part of her evidence that the Court has accepted with respect to the role played by the appellant and the manner being taken into consideration in its proper prospective it can neither be said that the appellant by his said act had the intentio of causing death nor causing such bodily injury as is likely to cause death. The appellant cannot also be credited with the knowledge that his said act is likely to cause death in view of fall resulting with the head injury with the occipital region of head getting dashed against the

concrete road by that fall on account of push. Therefore, found to be a case for recording a conviction under Section 325 I.P.C. and thus the conviction of appellant is altered to one under Section 325 IPC from that under Section 304, Part-I IPC."

19. By taking me to the evidence of the witnesses, Mr. Dhal, learned

Senior Counsel appearing for the appellants attempted to draw the

benefit from the judgment cited above and submitted that even if the

evidence of all the witnesses in the present case is taken at its face value,

they should be at best attract a case falling under the category of Section

325 of I.P.C. Having submitted the same, he has relied upon another

judgment of the Hon‟ble Supreme Court in the case of Bishnupada

Sarkar and another vrs. State of West Bengal, reported in (2012) 52

OCR (SC) 736. By emphasizing paragraph-8 of the said judgment, he

has submitted that the sentence of five years awarded to the appellant,

namely, Sukal Mallik in CRA No.24 of 1996 deserves to be substantially

modified. For convenience of ready reference, paragraph-8 of the said

judgment is reproduced hereunder:-

"8. There is no evidence to suggest any pre- meditation on the part of the appellants to assault the deceased leave alone evidence to show that assailants

intended to kill the deceased. There was no previous enmity between the parties who were residents of the same locality except that there was a minor incident in which some hot words were exchanged between the deceased and Sudhir. Even on the following day i.e. on 22nd May, 2001 the incident near the drain involved the appellant-Bishnu Sarkar and the complainant-Debabrato Mazumder son of the deceased. It was only when the deceased noticed the incident and intervened to save the complainant, that Madhab Sarkar started assaulting the deceased and inflicted injuries on his body that resulted in his death. Both the Courts below have no doubt believed the prosecution case that appellant- Bishnu Sarkar was exhorting appellant-Madhab Sarkar to assault the deceased and, therefore, convicted him under Section 304 Part I with the help of Section 34 IPC. A distinction has, however, to be made in the facts and circumstances of the case between the sentence awarded to the appellant-Bishnu Sarkar who is over sixty five years old and that to be awarded to appellant-Madhab Sarkar. In the totality of the circumstances to which we have referred above, we are of the view that a rigorous sentence of three years to appellant No. 1-Bishnu Sarkar and seven years to appellant No.2-Madhab Sarkar would meet the ends of justice. The sentence of fine and imprisonment in default of payment thereof will, however, remain unaltered. We accordingly allow the appeal in part and to the extent indicated above in modification of the orders passed by the Courts below."

20. I have taken into consideration the submission of learned counsel

for both the parties, analysed the evidence and taken into consideration

the judgments cited at the Bar. On the overall consideration of the

matter, I am of the view that CRA No.10 of 1996 deserves no merit.

Hence, the same is dismissed. In so far as the substantive sentence

awarded by the learned trial Court to the appellants in CRA No.10 of

1996 is concerned, the same is urged by Mr. Dhal, learned Senior

Counsel to be modified in view of the fact that all the appellants have

roughly undergone about one month during the trial. The incident relates

back to the year 1994. At that point of time, the appellants were in their

mid-30s and 40s except appellant Nos.3 and 4, those who were in their

20s. Hence, all of them are at their advanced stage. Over the years, they

have led a dignified life, integrated well into society, and is presently

leading a settled family life. Incarcerating them after such a long delay, it

is argued, would serve little penological purpose and may in fact be

counter-productive, casting a needless stigma not only upon them but

also upon their family members, especially when there is no suggestion

of any repeat violation or ongoing non-compliance with regulatory

norms. At this stage, sending them to custody for serving out to the

remaining awarded sentence would be harsh and they have a cascading

effect to their entire family. Therefore, Mr. Dhal, learned Senior Counsel

submitted that the appellants may be treated under the Probation of

Offenders Act.

21. I have given a careful consideration to the submission made by

Mr. Dhal, learned Senior Counsel. Regard being had to the submission

made at the Bar and the incident had taken place in the year 1994, age of

the appellants, the prayer made by Mr. Dhal, deserves merit. However,

this Court deems it appropriate to impose a revised fine of Rs.5,000/-

(rupees five thousand) on each of the appellants, in default of the fine

amount, to undergo S.I. for two months.

22. Taking into consideration the entire conspectus of the matter and

the fact that the incident relates back to the year 1994, the age of the

appellants and their societal position, I am of the considered view that all

the appellants in CRA No.10 of 1996 are entitled to the benefit of the

Probation of Offenders Act. Therefore, this Court directs the appellants

to be released under Section 4 of the Probation of Offenders Act for a

period of six months on their executing bond of Rs.5,000/- (Rupees Five

Thousand) each within one month with one surety each for the like

amount to appear and receive the sentence when called upon during such

period and in the meantime, the appellants shall keep peace and good

behavior and they shall remain under the supervision of the concerned

Probation Officer during the aforementioned period of six months.

23. It is made clear that although the appellants are extended the

benefit of the Probation of Offenders Act but they should deposit the fine

amount of Rs.5,000/- (rupees five thousand) each within a period of one

month. The amount to be deposited shall be disbursed equally to the

legal heirs of the of the victims (Bhagaban Patel and Nakula Neti). If the

fine amount is not deposited within the stipulated time framed, the

treatment given to the appellants under Section 4 of the Probation of

Offenders Act shall be withdrawn and they will be taken into custody to

serve out the awarded sentence.

24. In so far as the appellant-Sukal Mallik in CRA No.24 of 1996 is

concerned, the said appeal is also dismissed and the conviction recorded

against the appellant-Sukal Mallik under Section 304 Part-1 of I.P.C. is

affirmed. The sentence of five years awarded to him is also modified by

taking a lenient view. Taking into consideration the passage of time and

the age of the appellant, who is at present 61 years of old, the sentence of

five years is reduced to two and half years and the fine amount imposed

by the learned trial Court is enhanced to Rs.1,000/- (rupees one

thousand), in default, the appellant shall undergo further R.I. for one

month.

25. Accordingly, the Criminal Appeals are partly allowed with the

modification of sentence as mentioned in the preceding paragraphs.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack.

Dated the 16th December, 2025/ Swarna

Designation: Senior Stenographer

Location: High Court of Orissa