Orissa High Court

(From The Judgment And Order Dated ... vs State Of Odisha on 25 November, 2025

Author: Chittaranjan Dash

Bench: S. K. Sahoo, Chittaranjan Dash

        IN THE HIGH COURT OF ORISSA AT CUTTACK
                       CRA No. 238 of 2001
  (From the judgment and order dated 05.10.2001 passed by learned
  Second Additional Sessions Judge, Cuttack, in S.T. Case No.313 of
                               1998)


Madha @ Sachidananda ....                                  Appellant
Khuntia
                                               Mr. B.S. Rayaguru,
                                                   Amicus Curiae
                           - Versus -

State of Odisha                ....                      Respondent
                                         Mr. Partha Sarathi Nayak,
                                             Addl. Govt. Advocate

                     CRLA No. 373 of 2007
 (From
  From the judgment and order dated 05.10.2001 passed by learned
 Second Additional Sessions Judge, Cuttack, in S.T. Case No.313 of
                              1998)

Nikhil Mohanty                 ....                        Appellant
                                        Mr. S. Satapathy,, Advocate
                           - Versus -

State of Odisha                ....                      Respondent
                                         Mr. Partha Sarathi Nayak,
                                             Addl. Govt. Advocate

                     CORAM:
        THE HON'BLE MR. JUSTICE S. K. SAHOO
     THE HON'BLE
             BLE MR. JUSTICE CHITTARANJAN DASH

                    Date of Judgment: 25.11.2025




  CRA No. 238 of 2001
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       A No. 373 of 2007                                   Page 1 of 29
 Chittaranjan Dash, J.

1. The Appellants in both the Appeals having stood trial before the learned 2nd Additional Sessions Judge, Cuttack in S.T. Case No.313 of 1998 being charged charge for the commission of offence under Section 302/34 of Indian Penal Code (hereinafter in short called "IPC") found guilty and upon their conviction sentenced to undergo imprisonment for life each for the said offences offences in furtherance of their common intention.

2. The prosecution case, as unfolded before the learned Trial Court, is that on 12.03.1996 at about 10:00 p.m., Biranchi @ Pranakrushna Choudhury (hereinafter referred to as 'the deceased') along with his two friends, namely Bapi Mohanty (P.W.4) and Baban @ Sanjay Mohapatra (P.W.8), proceeded on a Bullet motorcycle belonging to the deceased to witness a Depati Jatra (drama). As the mother of the deceased ceased had suffered an injury earlier in the evening and required to be shifted to the hospital, they first decided to proceed to Balikuda Chhak to arrange for a trekker driver. When they reached Alinga Chowk, the Appellant-Madha Appellant Madha Khuntia, who was present there here with a Luna moped, intercepted them and detained them. He asked the deceased to alight from the motorcycle. Accordingly, the deceased and P.W.8 got down, while P.W.4 proceeded to arrange the trekker driver. Thereafter, Appellant-Madha Appellant Khuntia led the deceased to a nearby canal, followed by P.W.8, and both the deceased and P.W.8 sat on the ridge of the adjoining land. In the meantime, after arranging for the trekker driver, P.W.4 returned

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to Alinga Chowk and was brought by Appellant-Madha Appellant Madha to the place where here the deceased and P.W.8 were seated. Appellant-

Appellant-Madha then called Ghana @ Satrughna, who arrived in a rushing manner armed with a sword. Ghana began scolding the deceased for allegedly abusing Appellant-Madha, Appellant Madha, which the deceased denied. At this juncture,, Appellant-Nikhil Appellant Nikhil also arrived at the spot. According to the prosecution, Appellant-Nikhil Appellant Nikhil gave a fist blow to the deceased, causing him to fall. Thereafter, Appellant-Madha Appellant Madha shifted the deceased to another spot, where Ghana forcibly made him to sit and demanded manded that he become a follower of Appellant-Madha.

Appellant Madha. It is further alleged that Appellant-Madha Madha instigated accused Biju Ray, using abusive language, upon which Biju repeatedly dealt sword blows on the deceased. Appellant-Nikhil Nikhil is also stated to have delivered ered 3 to 4 sword blows after taking the weapon from Biju Ray. Appellant-Madha Madha too assaulted the deceased with the sword, resulting in the deceased dying at the spot due to profuse bleeding injuries. P.W.4 and P.W.8 were allegedly threatened by Appellant- Madha adha with dire consequences if they disclose the incident to anyone. Thereafter, the Appellants, the co-accused co accused persons, as well as Bapi (P.W.4) and Baban (P.W.8) left the place, leaving the deceased's body at the spot. It further transpires from the record recor that P.W.8 disclosed the occurrence to one Rama Chandra Parida and subsequently to the informant, Harekrushna Choudhury (P.W.6), (P.W.6) upon receiving thee information, proceeded to the spot and found his brother (the deceased) lying dead with multiple injuries. He, thereafter, lodged a written report before the Officer-in-Charge, Officer

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Gobindpur Police Station, on 13.03.1996, which was registered as Gobindpur P.S. Case No.31 of 1996 vide Ext.1 which was treated as the FIR, and investigation commenced accordingly.

accordingly

3. In course ourse of investigation, the Investigating Officer, P.W.10, P.W.10 Brajabandhu Das, examined the Informant,, requisitioned the services of the police dog squad and the scientific team, visited the spot, conducted the inquest over the dead body of the deceased under Ext.2, prepared the spot map marked Ext.5, examined other witnesses, and sent the dead body for post-mortem post mortem examination through a Constable under the dead body challan vide Ext.3. Further, hee seized the Bullet motorcycle from the spot under seizure list Ext.6, and also seized a broken wrist-watch wrist watch glass, a spectacle cover, and a money purse under the same seizure list. The seized motorcycle was subsequently released in the zima of Pramod Kumar Choudhury under zimanama Ext.7. The I.O. also examined witnesses and recorded the statement of P.W.8, and on 15.03.1996 caused his statement to be recorded by the Magistrate under Section 164 Cr.P.C. On the same line, he examined P.W.4 Jyoti Ranjan Mohanty, Mohant recorded his statement under Section 161 Cr.P.C., and thereafter got his statement recorded under Section 164 Cr.P.C. The I.O. also sent a requisition to the Officer-in-Charge, Officer Charge, Niali Police Station, for arrest of the Appellants Madha Khuntia, Ghana @ Satrughna Satrughna Mallik, Nikhil Mohanty, and Biju Mohanty @ Ray. He received the scientific reports from the SFSL under Exts.8 and 9, and issued requisition to the Tahasildar, Niali for a survey report of the spot, which was furnished under Ext.10. He also received the post-mortem mortem report

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under Ext.4. On 08.07.1996, owing to his transfer, P.W.10 handed over charge of the investigation to his successor, S.I. Ashok Kumar Das of Gobindpur Police Station, who, after examining the case records and the steps already undertaken, undertaken, submitted the charge-sheet charge on completion of investigation.

4. The plea of the defence is one of complete denial and false implication.

5. To establish the charges, the prosecution examined ten witnesses in all. P.W.1 was an independent witness. P.W.2 was a relative of the deceased who spoke to the events immediately preceding and following the occurrence. P.W.3 was the constable who transported the dead body of the deceased to the hospital for post-mortem mortem examination. P.W.4 and P.W.8 were the principal eyewitnesses witnesses who had accompanied the deceased and were present at the scene of occurrence. P.W.5 was a retired Inspector. P.W.6 was the informant and the elder brother of the deceased. P.W.7 spoke to the fact of the investigation having been handed over to the th successor Investigating Officer. P.W.9 was the doctor who conducted the post-

post mortem examination on the dead body of the deceased. P.W.10, the Sub-Inspector Inspector of Police attached to Gobindpur Police Station, registered the case on the basis of the report lodged lodged by P.W.6 and initially took up the investigation as narrated hereinbefore. The defence examined none in support of their case.

6. The learned Trial Court, having believed the testimony of P.W.4 and P.W.8, who were stated to be present at the scene of occurrence rrence and to have witnessed the assault allegedly committed by

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the Appellants resulting in the death of the deceased at the spot, held that the prosecution to have proved its case beyond reasonable doubt through their ocular evidence. Relying on the said eye-witnesses eye account, the Trial Court found the Appellants guilty and, upon conviction, sentenced them as indicated hereinbefore.

7. Mr. Rayaguru, learned counsel Amicus Curiae for Appellant-

Appellant Madha @ Sachidananda Khuntia, submitted that the impugned judgment of the learned Trial Court is vitiated by relying rel upon extraneous and unreliable material, inasmuch as the acceptance of the testimony of P.W.4 and P.W.8 as eye-witnesses eye witnesses to the occurrence is misconceived. It was contended that although these witnesses claim im to have witnessed the incident, they did not disclose the same before any person immediately after the occurrence, nor did they divulge material particulars before the Investigating Officer at the earliest opportunity. Their statements, recorded after an an unexplained delay of four to five days, cast serious doubt not only on their presence at the scene but also on the genuineness and voluntariness of their versions as recorded during investigation. Therefore, their evidence ought not to have been accepted as the basis for fastening culpability for murder upon the Appellants. Learned counsel, counsel further drew rew the attention of this Court to several infirmities in the statements of the prosecution witnesses touching upon the alleged complicity of Appellants-Madha Appellants as well as Nikhil. Mr. Rayaguru argued that the narration in the FIR, the statements made during investigation, and the depositions before the Court suffer from material inconsistencies regarding the manner of assault attributed to

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the Appellants. The non-seizure non seizure of the alleged weapon of offence, despite the prosecution version of repeated sword blows, also renders the prosecution case doubtful. In such circumstances, it was submitted that the learned Trial Court ought not to have relied upon the testimony of P.W.4 and P.W.8 to sustain the conviction.

conviction

8. Mr. S. Satapathy, learned counsel for the Appellant-Nikhil Appellant Mohanty, adopted the arguments advanced by Mr. Rayaguru and urged that it is a fit case where benefit of doubt should be extended to the Appellants.

9. Mr. r. Partha Sarathi Nayak, learned Additional Government Advocate, on the other hand, vehemently opposed the submissions advanced on behalf of the Appellants and contended that the learned Trial Court has undertaken a thorough and proper appreciation of the evidence on record. He submitted that the testimonies of the witnesses, particularly those of P.W.4 and P.W.8, are free from embellishment, and that mere delay in their examination does not in any manner vitiate the prosecution case, which otherwise remains remain coherent, consistent, and credible. According to him, both these witnesses were natural witnesses present at the scene of occurrence and had clearly narrated not only the presence of the assailants but also the specific manner in which the assault was carried carried out with weapons, and therefore, the non-seizure non seizure of the weapon of offence does not, in his submission, erode the substratum of the prosecution case as candidly narrated by P.W.4 and P.W.8. Mr. Nayak further argued that the contention that the testimony testimony of these witnesses should be discarded solely on the ground of delayed examination is

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untenable in law, particularly when their presence at the spot has not been disputed. He submitted that it is natural that the witnesses who had directly seen the assault and were threatened with dire consequences by the Appellants would initially be reluctant to come forward, and such apprehension fully explains the delay in their examination. This conduct, therefore, lends credence rather than suspicion to their testimony.

t In the above background, learned counsel submitted that the absence of immediate disclosure by the witnesses does not, by itself, impair their credibility, and their consistent and precise narration of the occurrence establishes them as trustworthy hy witnesses. He, He accordingly, urged that the learned Trial Court rightly relied upon their evidence and that the impugned judgment warrants confirmation.

10. Before examining the rival submissions and the legal issues involved, it is apposite to briefly recapitulate recapitulate the substance of the evidence adduced by the prosecution. A succinct summary of the depositions of the relevant witnesses is, therefore, set out hereunder, for proper appreciation of the case.

case

P.W.2,, the cousin of the deceased Biranchi, stated that he knew both the Appellants as well as the other co-accused co accused persons.

On the night of 12.03.1996, at about 10:00 p.m., his mother sustained a leg fracture after falling, and the deceased proceeded on a Bullet motorcycle along with Bapi (P.W.4) and Baban (P.W.8) (P.W.8) to arrange for a driver to shift her to the hospital. When they did not return, P.W.2's cousin Prakash took the injured mother in a trekker towards Adaspur hospital, and P.W.2 accompanied them. On the way, near a

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village, one Raba Behera allegedly dashed dashed against their trekker and informed them in an alarmed tone that some persons were assaulting each other nearby. They did not go towards that place and proceeded directly to the hospital. The next morning, P.W.2 learned about the death of Biranchi. He went to Ailing village and found the deceased lying dead in a groundnut field with cut injuries on the neck, head, hand, and other parts of the body. His brother Harekrushna lodged the FIR. P.W.2 further stated that P.W.4 and P.W.8 narrated the occurrence to him the following day, and he was examined by the Investigating Officer that evening.

In cross-examination, examination, P.W.2 denied the suggestion that he had earlier expressed inability to identify the assailants or give any clue about the incident. He stated that that his house was about half a kilometre from the place of occurrence and that he did not pass through the spot while going to the hospital. He confirmed that he did not report the matter to any police station and that the police arrived at Ailing Chhak at about about 9:00 a.m., though he did not give any statement at that time. He denied suggestions that he had not told the Investigating Officer about knowing the accused persons, the disclosures made by P.W.4 and P.W.8, the injuries to his mother, the information from Raba Behera, or the injuries noticed on the deceased. He maintained that his evidence-in-chief evidence chief was truthful.

P.W.4,, also known as Bapi, Bapi, stated that he knew both Appellant-Madha Madha and Appellant-Nikhil, Appellant Nikhil, as well as the deceased Biranchi, who was his friend. On 12.03.1996, at about 6:00 p.m., he, the deceased, and P.W.8 decided to go to Kasarda village to witness

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a festival. Later that night, at around 10:00-10:30 10:30 p.m., they were asked by the deceased's elder cousin to bring a trekker driver to shift an injured family member to the hospital. The three of them proceeded on a Bullet motorcycle towards Balikuda Chhak, with P.W.4 driving. Upon reaching reaching Ailing Chhak, Appellant-Madha Appellant stopped them. After the deceased identified himself on being questioned, Appellant-Madha Appellant Madha asked him to get down. The deceased and P.W.8 remained at the spot while P.W.4 went ahead to call the trekker driver. When he returned, returned, he found only Appellant-Madha Appellant present. Appellant-Madha Appellant Madha then sat on the pillion seat, threatened P.W.4 with death if he shouted, searched his pockets, and directed him to drive towards Gopinathpur. Near Badam Kiaris (groundnut field), Appellant-Madha Madha forced forced him to hide the motorcycle in a ditch, put out the light, and sit down. He then loudly called out for the deceased. According to P.W.4, the deceased, P.W.8, and two others including Appellant-Nikhil Appellant soon arrived at the spot. Shortly thereafter, absconding ding accused Biju Ray appeared with a sword and struck the deceased on the head, causing him to fall face-down.

face P.W.4 stated that Appellant-Madha Appellant Madha repeatedly instigated Biju Ray, after which 5 to 6 sword blows were inflicted. Appellant-Nikhil Appellant took the sword and administered 3 to 4 more blows. When the deceased began groaning, Appellant-Madha Appellant Madha snatched the sword and assaulted him as well. The deceased died on the spot with bleeding injuries. P.W.4 further stated that Appellant-Madha Appellant Madha threatened him and P.W.8 with th death and destruction of their houses if they disclose the incident. On noticing vehicle lights and hearing commotion from

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Ailing Chhak, P.W.4 fled, leaving the motorcycle behind. He stated that he informed P.W.2 and Prakash, the deceased's brother, the next morning at Kusunpur village. He then went to Rourkela and later returned with Trilochan Mohanty, after which he narrated the incident at Govindpur Police Station. His statement under Section 164 CrPC was recorded.

In cross-examination, examination, P.W.4 stated that that his house was about two kilometres from the deceased's house, and that the deceased's house was about half a kilometre from Ailing Chhak. He admitted that he did not go to the police station immediately as he was in mental shock and claimed that he spent spent the night at his uncle's house. He acknowledged that he did not disclose the incident to villagers or to his uncle's family. He denied suggestions of tutoring, false implication, lack of prior acquaintance with the Appellants, or omissions in his earlier earlier statements regarding the identity of the assailants, instigation, the number of blows, or his ability to recognise the accused. He also denied the suggestion that he never went to Rourkela or that his evidence was fabricated.

P.W.6,, the informant and elder elder brother of the deceased Biranchi, stated that he knew all the accused persons, including the absconding accused Biju Ray and Satrughna Mallik, as well as P.W.4 and P.W.8. The deceased Biranchi was his youngest brother. On 12.03.1996, at about 8:30 p.m., the deceased came home along with P.W.4 and P.W.8. His mother had sustained a fracture in her leg earlier that day, and therefore P.W.6 asked the deceased, P.W.4, and P.W.8 to go to village Chalisahi to call the trekker driver so that she

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could be taken too the hospital. The three left on a Bullet motorcycle. When they did not return, P.W.6 himself shifted his mother to Adaspur PHC for treatment. The next morning, at about 7:00 a.m., a.m he heard that the deceased had been killed. He went to the spot and found his brother lying dead in a Badam Kiari (groundnut field) with bleeding injuries on his head. He lodged the FIR vide Ext.1. The inquest was also conducted in his presence.

In cross-examination, examination, P.W.6 admitted that in the FIR he did not mention that the deceased, deceased, P.W.4, and P.W.8 had come to his house before proceeding to call the trekker driver. He stated that he did not see P.W.4 after the deceased left the house and confirmed c that there was no criminal case pending against the deceased. He stated that there re was a police outpost at Kasarda village. He denied lodging any missing report when the deceased and P.W.4 did not return and denied the suggestion that the deceased, P.W.4, and P.W.8 had never come to his house.

P.W.8 is also called Baban, in his sworn testimony stated that he knew both Appellants Madha and Nikhil, as well as the absconding accused Biju Ray and Satrughna Mallik. The deceased Biranchi was known to him as the younger brother of his friend Radhakrushna Choudhury, Choudhury, and he was acquainted with P.W.4. The occurrence took place on 12.03.1996 at about 10:15 p.m. Earlier that evening, around 6:00 p.m., he, the deceased, and P.W.4 had decided to go to Kasarda village to witness a festival. In the meantime, the deceased's mother sustained a leg injury, and her elder son Nabakrushna Choudhury asked Biranchi to call the trekker driver to

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take her to the hospital. Accordingly, he along with the deceased and P.W.4 left on a Bullet motorcycle driven by P.W.4. P.W.8 further statedd that at Ailing Chhak, Appellant-Madha Appellant Madha signalled them to stop. On being informed that they were going to call the driver to shift the injured mother, Appellant-Madha Appellant Madha directed P.W.4 to go ahead alone while detaining the deceased and P.W.8. Thereafter, Appellant-

Appe Madha led the deceased towards a canal-side canal side Badam Kiari, with P.W.8 following. They were made to sit on the ridge of the field. Appellant-Madha Madha then shouted to call others, and the absconding accused Ghana na arrived with a sword. Ghana G asked Appellant-Madha Appellant to confirm the identity of the deceased and P.W.8, which he did. The deceased denied Ghana's G ana's accusation that he had abused Appellant-

Appellant Madha. By that time, Appellant-Nikhil Appellant Nikhil reached the spot. Ghana G identified the deceased to Appellant-Nikhil, Appellant Nikhil, who gave a fist blow, causing the deceased to fall. Appellant-Madha Appellant Madha outwardly protested but then took the deceased aside in an apparently sympathetic manner. P.W.8 also stated that had P.W.4 arrived then and immediately thereafter absconding accused Biju Ray reached the spot with a sword. Seeing P.W.8, Biju abused him and moved towards the deceased. Biju then took the sword from Ghana G and struck a blow on the deceased's back neck, causing him to fall with bleeding injuries. According to P.W.8, Biju delivered about 5-7

sword blows. Appellant-Nikhil Appellant Nikhil then took the sword and dealt around 4-55 more blows. Ghana G also gave 4-55 blows after snatching the sword. Throughout this assault, Appellant-Madha Appellant Madha instigated them to strike the deceased on the head. Thereafter, Appellant-

Appellant-Madha took

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the sword again from Ghana G ana and delivered two blows while shouting, and then threatened both P.W.8 and P.W.4 not to disclose the incident. P.W.8 stated that when vehicle lights appeared on the road, Appellant-Madha Madha held P.W.4's hands and directed him hi to leave with them, while P.W.8, frightened, fled in another direction. He fell near a cremation ground but was unhurt. At about 4:00 a.m., he reached the house of one Rama Chandra Parida and narrated the incident to him. He was examined by the I.O. the next day, and his statement under Section 164 Cr.P.C.

Cr was recorded later.

In cross-examination, examination, P.W.8 stated that his house was about half a kilometre from that of the deceased and that two villages lay between his house and Ailing Chhak. He also stated that th he undertook contract work and was a childhood acquaintance of the deceased's family. He denied suggestions that he was financially dependent on the deceased's brother or that he had been tutored. He stated that the police detained him for 24 hours before before producing him before the Magistrate for recording his statement. He denied various suggestions of omissions such as failure to identify the accused before the police, failure to mention the fist-blow fist blow by Appellant-

Appellant Nikhil, the number of sword blows, the threats threats issued, or the specific acts attributed to the accused. He further denied that he was set up as a witness or that he was deposing falsely.

11. Having regard to the charge faced by the Appellants in the offence under Sections 302 IPC, the first and foremost foremost point requires determination is whether the deceased died a homicidal death. In this context, the medical evidence adduced by the prosecution through

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P.W.9 as follows, deems importance besides the oral evidence through P.W.4 and 8.

External Injuries:

(i) A cut wound of 21 cm x 1.25 cm x bone deep situated on the right-side side forehead to left side chin crossing and cutting the nose at its root. The upper end lies 6 cm above the outer end of right eye brow and the lower end 1 cm below and 2.5 cm outer to left angle ngle of mouth.

(ii) Cut wound of 15 cms x 0.25 cm x cranial cavity situated horizontally on the right side of the head just above the right ear extending backwards from the outer and of right eye brow to right posterior auricular area.

(iii) Cut wound 19 cms x 1.5 cm cm x cranial cavity on the postero parietal region of head mostly over the right side.

(iv) Cut wound 18 cms x 1.5 cm x cranial cavity situated 1 cm below the injury no.iii

(v) Cut wound 17 cms x 1.5 cm x cranial cavity situated obliquely downwards and backwards and medially on the right occipital region of heed.

(vi) Cut wound 10 cms long obliquely situated on the dorsum of left-hand hand palm extending to the left-hand left hand little finger. All the underlying structures including the bones were found cut and separated and loosely attached a to the palmar skin.

(vii) Cut wound of 10 cm x 1.5 cm x bone deep situated on the palmar aspect of left-hand left hand palm. All the structures including the muscles and vessels were found cut.

(viii)The left-hand hand thumb is found cut and partially amputated at its root.

(ix) Cut wound 5 cm x 2 cm x bone deep situated horizontally on the back of left elbow 2 cms above the bony prominence.

(x) Cut wound 4 cm x 2 cm x muscle deep situated on the anterior boarder of left shoulder at its middle part.

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(xi) Cut wound involving the bone situated on the back of right elbow obliquely.

(xii) Stabbed wound 2 cm x 1 cm x muscle deep situated on the anterior boarder of right arm 10 cm below shoulder tip.

(xiii)Stab wound 3 cm x 1.9 cm x muscle deep situated on the posterior boarder of right arm 4 cm below the axillary cleft.

(xiv) Three small superficial cut on the outer aspect of right forearm measuring 2 cm x 1 cm x skin deep 12 cm above the wrist, 2cm x 1 cm x skin deep 6 cm above the lower end of radius and 2 cm x 1 cm x skin deep 7 cm above the lower end of ulna.

(xv) Cut wound 1.5 cm x 0.5 cm x skin deep on the front of right knee.

(xvi) Cut wound 1.5 cm x 0.5 cm x muscle deep on the inner aspect of left knee, (xvii) Stand wound 3 cm x 1 cm x chest cavity on the right side back 10 cms away from mid line and 126 above the right rig heel.

On dissection the following Internal Injuries were found:

(i) The scalp, skull, meninges and brain were found cut corresponding external injury nos. (i) to (v). The brain was puppy and hemorrhagic. Cranial cavity was almost collapsed.

(ii) The soft tissues sues of the face and the bones corresponding to External injury no. i were found cut including the nazal bone and left maxillary bone.

(iii) The posterior thoracic wall was found penetrated through and through corresponding to eternal injury no. xvii with extravasation vasation of blood to the adjacent intercostal muscles. The pleura was found perforated and the right lung at its lower lobe was also found perforated. Right side chest cavity contained about 500 ml of blood.

In his evidence on oath, as narrated above, P.W.9 P.W.9 has given a vivid description of nature of injuries sustained by the deceased. All the injuries being incise in nature and multiple injuries having found

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in the person of the deceased, it is abundantly clear that the deceased had suffered repeated blows inflicted by a sharp-cutting cutting weapon. The injuries, as opined by P.W.9,, were sufficient in the ordinary course of nature to cause death, having been directed at vital parts of the body. The medical evidence thus unequivocally establishes that the death of the he deceased was homicidal in nature.

The oral evidence coming through P.W.4 and 8 too finds support to the aforesaid injuries dictated by the doctor in course of the autopsy leads only to the conclusion that the death of the deceased would be one of homicidal homicidal in nature. The defence found not very keenn in disputing the nature of the death and as such, the findings recorded by the learned Trial Court holding the death of the deceased to be homicidal being sacrosanct are confirmed.

12. The next question that engages engages the attention of this Court is with regard to the culpability of the Appellants and whether they can be held to be the assailants/authors of the assault in question. Though the prosecution has examined several witnesses, the core of the prosecution case, e, so far as attribution of specific overt acts to the Appellants is concerned, rests principally on the evidence of P.W.4 and P.W.8. At the outset, it may be stated that the defence challenges the impugned judgment of the learned Trial Court primarily on the ground of the credibility of these two witnesses. The contention of the learned amicus curiae is that P.W.4 and P.W.8 were examined belatedly, which, according to the defence, casts a serious doubt on the reliability of their testimony.

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13. The law is well settled that delay in the examination of witnesses, particularly those who claim to be present at the scene of occurrence does not, by itself, render the prosecution case untenable, especially when their presence is not in dispute. However, such delay can certainly affect the creditworthiness and overall reliability of the testimony, depending on whether the prosecution offers a satisfactory and plausible explanation. Unexplained or inordinate delay may cast a serious shadow on the veracity of the evidence and may allow the defence to argue the possibility of embellishment, improvement, or manipulation, requiring the Court to approach the testimony with circumspection and, therefore, what hat the Court must evaluate is whether the delay has caused prejudice to the accused in effectively defending themselves;

themselves for instance, due to non-

non availability of material witnesses, loss of evidence, or fading recollection. Where such prejudice is shown, delay assumes significance. Conversely, where the prosecution offers a rational ra and acceptable explanation, the Court is required to scrutinise scrutini the evidence with care, ensuring that no undue prejudice is occasioned to either side while still upholding the cause of justice.

The aforesaid legal position stands succinctly enunciated enunciat in the recent decision of the Hon'ble Apex Court in the matter of Firoz Maharashtra, reported in 2025 Khan Akbarkhan vs. The State of Maharashtra, 349 as follows:

LiveLaw (SC) 349,

21. Insofar as the delay of 2/3 days in recording the statements of the eye-witnesses eye under er Section 1615 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') is concerned, the said delay has been thoroughly explained by the witnesses, including the

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Investigating Officer, to the effect that there were riots in the area.

a. On this score, the Investigating Officer was involved in maintaining law and order in the affected area. In the attendant facts and circumstances, the course of action adopted by the police cannot be termed unjustified and no adverse inference can be drawn drawn on this count. No doubt that Court has laid down that an inordinate delay in recording witness statements can prove to be fatal for the prosecution, as pointed out by three learned Judges in Ganesh Bhavan Patel v State of Maharashtra, (1978) 4 SCC 371;; however, therein, the delay in recording statements of the material witnesses was accompanied by a delay in registering of the FIR and the surrounding circumstances, which led the Court to hold that there was a 'a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story.' In Jagjit Singh v State of Punjab,, (2005) 3 SCC 689 and State of A.P. v S Swarnalatha (2009) 8 SCC 383,, the Court held in favour Swarnalatha, of the convict/accused, as the inordinate delays therein could not be sufficiently sufficiently explained. Delay of about 27 days, in a case where communal violence had broken out, was held not fatal, in Lal Bahadur v State (NCT of Delhi),, (2013) 4 SCC 557. 557. Delay of over 2 years in recording witness statements was deemed not fatal, when explained, ained, in Baldev Singh v State of Punjab,, (2014) 12 SCC 473.. Delay in recording witness statements was held not fatal per se in Sunil Kumar v State of Rajasthan, Rajasthan (2005) 9 SCC 283 and V K Mishra v State of Uttarakhand (2015) 9 SCC 588.. Delay in recording Uttarakhand, statements tatements of witnesses was held to have cast serious doubts on the prosecution version in Shahid Khan v State Rajasthan (2016) 4 SCC 96 and Jafarudheen v State of Rajasthan, of Kerala,, (2022) 8 SCC 440. 440 It was held, in Goutam Joardar v State of W. B., B. (2022) 17 SCC 549, 549 by a Coordinate Bench that 'there was some delay in recording the statements of the eyewitnesses concerned but mere factum of delay by itself cannot result in rejection of their testimonies.' Per our understanding, Ganesh Bhavan Patel (supra) is not anan authority to contend that delay in recording witness statements is always fatal to the prosecution's case. Thus, stricto sensu, delay in recording

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witness statements, more so when the said delay is explained, will not aid an accused. Of course, no hard-and hard fast principle in this regard ought to be or can be laid down, as delay, if any, in recording statements will have to be examined by the Court concerned in conjunction with the peculiar facts of the case before it. Our reading of the above shall apply onon all fours to delays in the context of Section 164 of the Code.

From the above, it i is clear that mere non-examination examination of eye-

eye witnesses immediately after the occurrence does not, by itself, vitiate the prosecution case. If the Court is satisfied with the explanation e furnished by the prosecution and finds that the material brought on record is adequate to sustain the charge, no prejudice can be said to have been caused to the accused. Likewise, where the Court is of the view that the evidence withheld is not material or is available to the other side, no adverse inference is warranted solely on the ground of non-production production of a particular witness. The burden rests on the party alleging deliberate suppression of a witness to establish the same.

same

14. On the touchstone of the principles enunciated by the Hon'ble Apex Court, when the case at hand is examined, it emerges that P.W.4 and P.W.8 are the two witnesses who had admittedly accompanied the deceased on the night of the incident, and the trio had proceeded roceeded on the Bullet motorcycle to witness the Jatra. The defence has not challenged this aspect nor put any suggestion to either of them that they had not accompanied the deceased on the night of the occurrence. The evidence further reveals that, in order ord to shift the deceased's injured mother to the hospital, they were asked to arrange a trekker driver, and accordingly the deceased along with

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P.W.4 and P.W.8 was proceeding for that purpose. On the way, it was Appellant-Madha Madha who obstructed their passage by raising his hands, bringing the motorcycle to a halt. Appellant-Madha Appellant Madha directed the deceased as well as P.W.8 to alight, while, upon the request of P.W.4, he permitted him to proceed to arrange the driver. The narration of P.W.4 and P.W.8 that Appellant-Madha Appellant Madha thereafter took the deceased from the chowk a little ahead towards the cultivable land and called the others to the spot, who appeared almost instantly as though prepared with weapons to respond to his call, appears consistent with the surrounding circumstances.

circumstances. Their further evidence, that P.W.4 returned to the spot and was again brought near the place where the deceased had been forced to sit, and that the assailants, more particularly Appellant-Nikhil, Appellant Nikhil, the absconding accused Satrughna and Biju arrived ived armed with swords and dealt indiscriminate blows on the deceased while Appellant-Madha Appellant instigated them with abusive exhortations, remains uncontroverted.

The only contradiction that emerges relates to whether the witnesses had, in their earlier statements statements before the police, attributed specific blows to Appellant-Madha, Appellant Madha, which they later stated in Court. Such discrepancy, though apparent, is not fatal. The law does not demand mathematical precision between statements recorded under Section 161 or Section 164 Cr.P.C. and the evidence before the Court, so long as the core of the testimony remains consistent. The same has been reiterated by the Hon'ble Apex Court in the matter of Rajendra @ Rajappa & Ors. Vs. State of Karnataka, reported in AIR 2021 SC 2064, while relying upon Narayan Chetanram

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Maharashtra, reported in (2000) 8 Chaudhary & Anr. vs. State of Maharashtra, SCC 457, as below:

"...It It is held in the said judgment that only contradictions in material particulars and not minor contradictions can be a ground to discredit discredit the testimony of the witnesses. Relevant portion of Para 42 of the judgment reads as under:

"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police pol statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness..."

witnes "

The facts clearly establish that the deceased was taken with the premeditated intention of being killed. The readiness of the assailants to appear immediately upon the call given by Appellant- Madha indicates that they were positioned close by, waiting and prepared to act. The evidence of P.W.4 and P.W.8 that the assailants challenged the deceased as to why he did not follow Appellant-

Appellant Madha's group further exposes the underlying motive; his refusal resulted in his being done to death by indiscriminate sword s blows.

Any minor discrepancy regarding which assailant delivered which

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specific blow does not in any manner weaken the prosecution case, particularly when the medical evidence unequivocally establishes that the deceased sustained multiple incised injuries injuries inflicted by sharp-cutting cutting weapons. The presence of the assailants at the scene in a premeditated manner, acting in concert, is sufficient to infer that Appellant-Madha Madha and Appellant-Nikhil Appellant Nikhil shared the common intention to eliminate the deceased. As regards regards the delayed examination of P.W.4 and P.W.8, and their initial reluctance to disclose the occurrence or the identity of the assailants before the Investigating Agency, the evidence makes it abundantly clear that the assailants had threatened them with dire consequences should they reveal the incident. Although the continuation of such threat is not specifically corroborated by the informant or by Rama Chandra Parida (who was not examined), such omission does not impeach the credibility of P.W.4 or P.W.8.. Their conduct in leaving the village and returning only after four to five days, as they explained, appears plausible and consistent with the fear they experienced. Their presence at the scene is unquestioned; their versions remain materially consistent; and the explanation furnished for the delay is cogent. We are, therefore, of the considered view that the learned Trial Court has rightly accepted their testimony as truthful and natural.

15. Inn assessing whether the ocular version of the prosecution witnesses is of such quality that a conviction may safely rest upon it; it becomes necessary to advert to the settled principles governing appreciation of eye-witness eye witness testimony. The Hon'ble Supreme Court has consistently held that where the prosecution case hinges upon

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direct ocular evidence, the Court must examine whether such witnesses satisfy the standard of reliability, consistency, and of sterling quality, as per law. Reference may usefully be made to the recent decision of the Hon'ble Supreme Court in Naresh @ Nehru Haryana 2023 INSC 889,, wherein the contours of this vs.. State of Haryana, principle have been restated in emphatic terms, terms, as follows:

"9.3 9.3 As noticed hereinabove, hereinabove, the evidence of the eye- eye witness should be of very sterling quality and calibre and it should not only instil confidence in the court to accept the same but it should also be a version of such nature that can be accepted at its face value. This Court in the case of Rai Sandeep @ Deepu alias Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21 has held:

"22. In our considered opinion, the "sterling witness"

should be of very high quality and caliber whose version should, therefore, be unassailable. The court cour considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination cross examination of any length and howsoever strenuous strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co- co relation with each and every one of other supporting material such such as the recoveries made, the weapons used, the manner of offence committed, the scientific

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evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin too the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness"

whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.""

alleged."

16. In view of the above, this Court finds that the core testimony of P.W.4 and P.W.8 substantially satisfies the characteristics of a witness whose evidence may be safely accepted. Both witnesses are natural companions of the deceased on the night of the occurrence; their presence at the scene is inherently probable, undisputed by the defence, and supported by the the surrounding circumstances, circumstances including the medical evidence.

evidence. The sequence narrated by them, them beginning with the interception by Appellant-Madha, Appellant Madha, the subsequent forcible separation of the deceased, the movement towards the cultivable land, the sudden arrival arrival of the assailants, the role of Appellant-

Appellant Madha in summoning and instigating them, and the participation of Appellant-Nikhil Nikhil and others in the assault is consistent in all material

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particulars in their statements under Section 164 Cr.P.C. and in Court.

spite strenuous and prolonged cross-examination, Despite cross examination, neither P.W.4 nor P.W.8 faltered on the fundamental aspects of the prosecution case. Their depositions remained coherent on the identity of the assailants, the nature of the weapons carried, the manner in which ich the deceased was repeatedly assaulted, and the role of Appellant-Madha Madha both in restraining the deceased and in actively inciting the attack. Minor deviations or omissions in their earlier police statements particularly as regards the attribution of specific spe blows do not go to the root of their credibility, especially when the medical evidence conclusively demonstrates multiple incised wounds caused by sharp-cutting cutting weapons, thereby fully supporting their core version.

The explanation tendered by these witnesses witnesses for the delay in their examination that they had been threatened with dire consequences by the assailants and had therefore left the village, village appears both plausible and natural in the circumstances.

The fact that at one hand they apprehended threat threa to their lives and on the other hand disclosed to the Informant's family though found not corroborated by P.W. 6 and further the non-

non examination of Ram Chandra Parida or anyone to support the versions of the witnesses as to their leaving the village cannot can in itself be taken abortive to the testimony of the witnesses though could have made the versions of the said witnesses emboldened but absence of corroboration cannot be seen the versions of P.W.4 and 8

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with doubt.. This is because the very aspect of their their company with the deceased and presence in the scene of occurrence remained uncontroverted and nothing could be inferred from the evidence of the defence has questioned their presence except by some suggestions that did not mature with any conclusion showing their absence in the scene of occurrence.

occurrence

Furthermore more, nothing has been elicited in cross--examination to suggest that either witness stood to gain from falsely implicating Appellant-Madha Madha or Appellant Nikhil.

Appellant-Nikhil. Their account being consistent with the inquest and medical findings further reinforces the intrinsic trustworthiness of their testimony. Examined cumulatively, their evidence forms an unbroken chain linking the conduct and presence of the Appellants with the homicidal death of the deceased, thereby ereby satisfying the test of a credible, reliable, and confidence-inspiring inspiring eye-witness eye witness account as envisaged by the Supreme Court. In view of the foregoing analysis of the ocular and medical evidence, there remains no doubt that the deceased suffered a homicidal icidal death squarely attracting the offence under Section 302 IPC.

17. The circumstances established through the consistent testimony of P.W.4 and P.W.8 reveal that Appellant-Madha Appellant deliberately intercepted the deceased, isolated him, led him towards the cultivable vable land, and summoned the assailants who appeared armed within moments. His subsequent instigation during the assault further demonstrates conscious participation. Appellant--Nikhil, upon arrival, immediately joined the group and inflicted sword blows on

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the deceased, reinforcing the pre-concerted pre concerted plan. The collective conduct of both Appellants, the coordinated assault with deadly weapons, the nature and number of injuries caused to the deceased and their threats to the eye-witnesses eye witnesses thereafter, cumulatively cumulativ establish that the fatal act was carried out in furtherance of a shared intention.. Accordingly, the acts of Appellant-Madha and Appellant- Nikhil clearly attract Section 34 IPC,, rendering them jointly liable for the murder of the deceased.

18. In view of the the foregoing analysis, this Court finds that the deceased suffered a homicidal death and the role of Appellant-

Appellant Madha and Appellant-Nikhil Appellant Nikhil stands clearly established. The consistent and reliable testimony of P.W.4 and P.W.8, duly corroborated by the medical evidence, proves beyond reasonable doubt that the fatal assault was carried out in furtherance of their common intention, attracting Section 302/34 IPC.

19. Accordingly, we find no compelling reason to interfere with reasoned findings recorded by the learned 2nd Additional the well-reasoned Sessions Judge, Cuttack in S.T. No.313 of 1998 vide order dated 05.10.2001.

20. As a result, both Criminal Appeals stand dismissed.

Since the Appellants are on bail, their bail bonds stand cancelled. They are directed to surrender before the learned trial court within a period of three weeks from today to serve out the sentence imposed upon them. In the event of their failure to do so,

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the learned court shall take all necessary steps to secure their apprehension in accordance with law.

Before parting, this this Court places on record its sincere appreciation for the valuable assistance rendered by Mr. B. S. Rayaguru,, learned Amicus Curiae.

Curiae. The Court acknowledges his diligent efforts and the able assistance extended in the effective adjudication of the present appeal. The Court also records its appreciation for Mr. Partha Sarathi Nayak, learned Additional Government Advocate, for his comprehensive comprehensive submissions and the clarity with which he presented the case. Their assistance has been of immense value in the disposal of this matter.

(Chittaranjan Dash) Judge

I, Agree.

(S.K. Sahoo) Judge

A.K.Pradhan/Bijay

Signature NotCRA Verified

Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 27-Nov-2025 12:03:47