Orissa High Court
Yudhistir Barik And Ors vs State Of Orissa on 6 November, 2025
Author: Chittaranjan Dash
Bench: S. K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.173 of 2001
(From the Judgment dated 16.08.2001, passed by learned 2nd
Additional Sessions Judge, Cuttack in S.T. Case No.197 of 1999)
Yudhistir Barik and Ors. .... Appellants
Ms. Nilambar Jena,
Amicus Curiae
-versus-
State of Orissa .... Respondent
Mr. Partha Sarathi Nayak,
Addl. Govt. Advocate
CORAM:
THE HON'BLE MR. JUSTICE S. K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 06.11.2025
Chittaranjan Dash, J.
1. This Appeal is directed against the judgment and order dated
16.08.2001 passed by the learned Second Additional Sessions Judge,
Cuttack in Sessions Trial Case No. 197 of 1999. The Appellants
faced trial for the offences punishable under Sections 148, 436, 302
and 307 read with Section 149 of the Indian Penal Code (for short,
'IPC'). Upon conclusion of the trial, they were found guilty for the
offences under Sections 148 and 302 of the I.P.C., but all of them
were acquitted of the charge under sections 307/149 of the I.P.C. For
the offence under Section 302 IPC, each of the Appellants has been
sentenced to undergo imprisonment for life. No separate sentence has
been awarded for the conviction under Section 148 IPC. The
Appellants Yudhistir Barik, Shriram Ch. Barik and Basudev Barik,
who were additionally convicted for the offence under Section 436
IPC, have also not been awarded any separate sentence for the said
offence.
Case of the Prosecution:
2. The prosecution case, shorn of unnecessary details, may be
recapitulated as follows. On 07.11.1996, Prabir Ojha (P.W.12), son
of Natabar Ojha (the deceased), lodged a written report before the
Officer-in-Charge, Niali Police Station, alleging that their family had
been residing on the disputed property since the last forty years,
having purchased the same, though no registered document had been
executed in their favour. It was alleged that on the morning of
07.11.1996, the Appellants, along with several others, arrived at the
house of the deceased and set it ablaze, thereby destroying all
household articles. When the deceased protested, the Appellants and
their associates assaulted him mercilessly, causing severe bleeding
injuries and rendering him critically injured, whereafter he was
shifted to the S.C.B. Medical College and Hospital, Cuttack. It was
further stated that the Appellants and their associates also attacked
the other inmates of the house, including the women members, and
abused them in filthy language while being armed with bhujali, farsa
and thenga. As a result, Ugra Charan Ojha sustained bleeding injuries
on his head, two of his teeth were uprooted, and the nasal bone was
fractured. Similarly, Sambhunath Ojha (P.W.1) and Alekha Ojha
sustained bleeding head injuries. Bishnu Ojha (P.W.13) and Bikash
Ojha (P.W.9) received injuries on their head and hands, while Budi
Ojha and Gangadhar Ojha also suffered injuries due to assaults with
thenga. On receipt of the written report, Niali P.S. Case No. 190 of
1996 was registered on 07.11.1996 vide Ext.3.
3. In course of the investigation, the I.O. (P.W.17) examined the
Informant and issued injury requisition for his medical examination.
He thereafter visited the spot as well as the Niali P.H.C., where he
found the injured persons namely Sambhunath Ojha (P.W.1), Bishnu
Ojha (P.W.13), Bikash Ojha (P.W.9), Ugrasen Ojha and Alekha Ojha
under medical treatment and observation. He examined P.W.1 at the
Niali P.H.C., though the remaining injured persons could not be
examined at that time as they had been advised complete rest. The
deceased while in an injured condition had already been referred to
the S.C.B. Medical College and Hospital, Cuttack owing to the
seriousness of his condition. The I.O. issued injury requisitions in
respect of all the injured persons and, during his spot visit on
07.11.1996, prepared the spot map (Ext.10). He examined Budhi
Ojha at the spot and seized blood-stained earth and sample earth
under Ext.11. The blood-stained wearing apparel of the deceased was
seized under Ext.12. In the course of search operations, he recovered
and seized one lathi from the house of Sriram Barik under Ext.13;
one lathi from the house of Basudev Barik under Ext.14; a bamboo
lathi from the house of Narendra Barik under Ext.15; another lathi
from the house of Iswar Barik under Ext.16; and yet another lathi
from the house of Khira Barik under Ext.17. A lathi was also seized
from the house of Bira Barik under Ext.18. He further seized big
brickbats and boulders from the spot under Ext.19, and seized burnt
bamboo pieces and ashes under Ext.20. On 08.11.1996, he examined
injured persons Bishnu @ Daitari Ojha, Bikash Ojha, Ugrasen Ojha
and Alekha Ojha. On the same day, he received information from the
I.I.C., Mangalabag Police Station that Natabar Ojha had succumbed
to his injuries at the S.C.B. Medical College and Hospital. The I.O.
requisitioned the Tahasildar, Niali, for deputation of an R.I. to
prepare a detailed spot map. On 09.11.1996, he arrested eleven
accused persons, and subsequently arrested another accused on
20.11.1996 and forwarded him to Court. He received the injury
reports of six injured persons from the Medical Officers and also
received the supplementary case diary from the I.I.C., Mangalabag
P.S. in connection with Mangalabag U.D. Case No. 654 of 1996,
including the post-mortem report of the deceased Natabar Ojha, the
inquest report and the dead-body challan. Two packets containing
blood sample and scalp hair of the deceased were seized from
Constable No.105 under Ext.21. On his transfer, the charge of
investigation was made over to his successor, S.I. Pradip Kumar
Dalai. In course of the investigation, the I.O. also ascertained that a
counter case had been registered at the instance of the Appellants,
being Niali P.S. Case No.191 of 1996, which culminated in S.T. Case
No.198 of 1999 corresponding to G.R. Case No.1416 of 1996, for the
offences punishable under Sections 147/323/436 read with Section
149 of the IPC.
4. To establish the culpability of the Appellants, the prosecution
examined seventeen witnesses in all. Upon perusal of the evidence,
it emerges that P.Ws.1, 2, 4, 5, 6 and 7 did not support the prosecution
case. P.W.3 is the Medical Officer who conducted the post-mortem
examination over the dead body of the deceased, and proved the
report under Ext.1. P.W.16 is the Medical Officer who examined the
injured witnesses, namely P.Ws.1, 9, 12 and 13, and proved the
corresponding injury reports under Exts.6, 7, 8 and 9. P.W.8 is the
son of the deceased, Natabar Ojha, and is also the informant. P.W.14
is the widow of the deceased. P.W.17 is the Investigating Officer.
Case of the Defence:
5. The plea of the defence is one of complete denial. It is the
further case of the Appellants that the house in question belonged to
Appellant Basudev Barik, and that it was the Prosecution Witnesses
who set the said house ablaze and assaulted the Appellants by means
of lethal weapons.
Trial Court Finding:
6. Having regard to the facts that fell for consideration before
the learned trial court, the primary questions that required
determination were whether the appellants had set fire to the house
of the deceased, Natabar Ojha, and whether, upon his protest, they
assaulted him to death, and further, whether they caused injuries to
P.Ws.1, 9, 12 and 13, besides Ugrasen Ojha and Alekha Ojha. The
trial court, upon a thorough appreciation of the evidence, particularly
the testimonies of P.Ws. 8, 9, 10, 11, 12, 14 and 15, who spoke
consistently to the assault, the setting ablaze of house and the role
played by the Appellants, and relying on the medical evidence
adduced through P.W.3, the doctor who conducted the post-mortem
examination, and P.W.16, the doctor who examined the injured
witnesses, found the prosecution case proved beyond reasonable
doubt. On such conclusion, the learned trial court held the appellants
guilty of the offences charged and imposed the sentence as already
noted hereinbefore.
Contentions of the Learned Counsel for the Respective Parties:
7. Mr. Nilambar Jena, learned Amicus Curiae, submitted that
the trial court failed to appreciate the evidence in its proper
perspective and, as a result, arrived at an erroneous conclusion
regarding the alleged complicity of the Appellants in the commission
of the offences. It is contended that the evidence of the so-called eye-
witnesses and occurrence witnesses suffers from material infirmities,
embellishments and contradictions which go to the root of the
prosecution case, thereby creating serious doubt as to the credibility
of their testimony. Learned counsel further submitted that although
several persons were alleged to have participated in the occurrence,
most of them have been acquitted, which itself demonstrates that the
investigation was defective and that the Appellants have been falsely
implicated on a 'pick-and-choose' basis. The evidence of the
prosecution witnesses, who are closely related to the deceased, is
stated to be neither independent nor trustworthy. It is further argued
that the deceased, Natabar Ojha, having died while under treatment
in the hospital, the circumstances do not attract the ingredients of the
offence under Section 302 IPC. As regards the injuries sustained by
the other witnesses, it is submitted that the same are superficial in
nature and do not constitute injuries of such gravity as would bring
the case within the ambit of Section 307 IPC. Mr. Jena lastly
submitted that the overall prosecution evidence is unsustainable in
law, and the trial court has misconstrued and misappreciated the
material on record. According to him, the findings of the trial court
acquitting most of the accused yet convicting only the Appellants
under Sections 302, 436 and 148 read with Section 149 IPC are
untenable. It is, therefore, urged that the impugned judgment be set
aside and the Appellants be acquitted of all the charges
8. Mr. Nayak, learned counsel for the State, on the other hand,
submitted that the eye-witnesses as well as the occurrence witnesses,
most of whom are injured witnesses have consistently deposed with
regard to the time, place and manner of occurrence, the nature of
injuries sustained by them and by the deceased, and the weapons used
in the assault. It is contended that despite incisive and extensive
cross-examination, nothing substantial could be elicited to discredit
their testimony. The medical evidence adduced through P.Ws.3 and
16 is stated to be fully consistent with the ocular version, both in
respect of the nature of injuries and the weapons used, thereby
lending ample corroboration to the prosecution case and rendering
the witnesses' testimony truthful, natural and wholly reliable.
Learned counsel further submitted that the injuries sustained by the
deceased, Natabar Ojha, were individually as well as cumulatively
fatal in the ordinary course of nature, as opined by the medical expert,
thereby satisfying the ingredients of Section 302 of the IPC. The fact
that the deceased succumbed to his injuries in the hospital and not
instantaneously, it is argued, does not diminish the gravity of the
assault or take the case outside the purview of Section 302 IPC,
particularly when the injuries were voluntarily inflicted without
provocation and were of a fatal character. With respect to the injuries
sustained by the injured witnesses, it is submitted that their
statements, read with the medical evidence of the doctor who
examined them, clearly establish that the Appellants were
responsible for causing the said injuries. The nature of the injuries,
according to the prosecution, was such that in the absence of timely
medical intervention they could have proved fatal. It is therefore
contended that the prosecution evidence overwhelmingly establishes
the culpability of the Appellants in committing both the murder of
the deceased and the murderous assaults on the injured witnesses.
The findings of the learned trial court in holding the Appellants
guilty, and the sentence imposed, are stated to be in perfect
consonance with law and call for no interference.
Analysis of this Court:
9. Having regard to the submissions advanced by the learned
counsel for the respective parties and the points arising for
determination in relation to the offences alleged, the first question
that confronts this Court is whether the deceased met with a
homicidal death. On this aspect, the medical evidence adduced
through P.W.3, the Medical Officer, who conducted the post-mortem
examination over the dead body of the deceased on 08.11.1996,
assumes considerable significance. In his examination on oath,
P.W.3 deposed that he found the following external injuries on the
body of the deceased: -
(i) A body swelling circular shapes 5 C.M. diameter situated
over the parallel region over which there was an incised
looking lacerated wound of size 1.25 C.M. x 0.25 C.M. x
scalp deep situated 9 C.M. above the right ear.
(ii) Swelling with bruises discolouration situated over lateral
canthus of right orbit associated with black eye formation of
right eye.
(iii) Contusion bruises colour 5 C.M. x 2.5 C.M. situated just
behind the root of right ear over the right mastoid region.
(iv) Abraded contusion 7.5 C.M. x 2 C.M. bruises colour situated
above the right deltoid region from the outer margin there
extends a scratch abrasion of size 3 C.M. x 1.5 C.M.
downwards.
(v) Parallel bruise 4 C.M. x 1 C.M. with intact pale skin of 1 C.M.
in between situated on the outer aspect of right arm mid-
portion.
P.W.3, further, found the following internal injuries: -
(i) There was a subscalpal haematoma of 1.5 C.M. thick
involving the right frontal right temporal and right parietal
region with contusion of under surface of the scalp.
(ii) Right temporalis muscle was contused.
(iii) A shallow grater shaped depressed fracture of 5 C.M. x 3
C.M. situated on the right parietal one little obliquely from
the interior end of which there extends a fissure fracture over
the right temporal. One which runs to the base of the skull to
involve the middle cranial fossa.
(iv) Extradural haematoma of size 11 C.M. x 8 C.M. x 1.5 C.M.
situated over the right tremor parietal region causing
compression of brain.
(v) The under surface of right-side mastoid scalp and right half
of occipital scalp was contused corresponding to external
injury no.(iii).
(vi) There was intracerebral haemorrhage into the brain stem and
hypothalamus.
(vii) Corresponding to the external injury no.(ii) the subcutaneous
tissue under the injury was infiltrated with extravasated
clotted blood.
In his opinion, P.W.3 stated that all the injuries found on the
body of the deceased were antemortem in nature and could have been
caused by hard and blunt force impact; the injuries, when considered
together and even individually, were fatal in the ordinary course of
nature. He further opined that death was due to cranio-cerebral
injuries resulting from hard and blunt force trauma to the head, and
that the time since death was within about 18 to 24 hours prior to the
post-mortem examination. Although, upon recall, the doctor
answered certain hypothetical suggestions of the defence such as that
contusions, abrasions and swellings may at times be superficial, that
some injuries could be caused without assault, and that Injury Nos.
(i), (ii) and (iii) (external injuries) could be caused by pelting of
stones or by a single stroke, that Injury Nos. (iv) and (v) could result
from other forms of physical impact, and that the edge of a brick
could cause parallel bruises if applied with equal force and even that
the injuries contained in Ext.1 could also arise from causes other than
physical assault such responses are plainly hypothetical and do not
relate to the actual injuries sustained by either the deceased or the
injured witnesses. These conjectural possibilities in no manner dilute
or discredit the categorical and substantive medical opinion of P.W.3,
which clearly establishes that the injuries inflicted on the deceased,
including the extensive subscalpal and extradural haematomas, the
depressed and fissured fractures of the skull, the contusion of the
temporalis muscle, and the intracerebral haemorrhage involving the
brain stem and hypothalamus, were fatal in the ordinary course of
nature.
The evidence of the injured witnesses, who have
unequivocally attributed the assault to the appellants and described
the blows delivered on the vital parts of the body of the deceased,
fully corroborates the medical findings. Consequently, there remains
no doubt that the injuries sustained by the deceased, and his ensuing
death, were homicidal in nature.
The finding of the trial court in this regard is just and correct.
Once the nature of death is held to be homicidal, the next
question that necessarily arises for determination is with regard to its
authorship. In this regard, before adverting to a scrutiny of the
evidence, it is incumbent upon this Court to reproduce the versions
of the witnesses for proper appreciation.
10. P.W.8 is the deceased's son and informant's elder brother.
He stated that on the date of occurrence, on being called by his aunt,
Chandrama Ojha, he came out of the house and found his father lying
dead with bleeding injuries. He saw that the accused persons were
standing near his father's dead body being armed with lathis and
swords, who further threatened him as well; being afraid he fled away
from the spot. Subsequently, after the accused persons left the spot,
P.W.8 went there, took his father to Niali Hospital along with his
mother. His father was then shifted to S.C.B. Medical College,
Cuttack, where after two days, he was declared dead. Consequently,
inquest was held and dead body was sent for postmortem
examination.
In his cross-examination, he mentioned to have seen twenty
persons, when he came out of the house, including Apada Biswal,
Judhistir Mallick and Gagan Mallick. He stated that he did not go to
Niali P.S. when he took his father to Niali Hospital, in view of his
father's injuries. The next day at about 6 p.m., the police came to
him. He further stated that his aunt had called him at 5:45 a.m. and
that the doctor of Niali Hospital refused to treat his father. He had
not disclosed the names of accused persons before the doctor of Niali
Hospital.
P.W.9 is the cousin of the deceased and a co-villager. He
narrated the incident and seen the accused persons outside the
deceased's house being armed with lathis at about 5:30 a.m. He also
stated that the accused persons set the deceased's house ablaze, while
the deceased protested. The Appellant-Yudhistir Barik instigated by
using foul language and Appellant-Basudev Barik dealt lathi blow on
the head of the deceased, as a result of which he fell down.
Subsequently, Appellants-Yudhistir, Birabar, Iswar, and Sriram also
assaulted the deceased with lathi. P.W.9 along with co-villagers-
Prabir Ojha (P.W.12), Sambhunath Ojha (P.W.1), Ugrasen Ojha,
Alekha Ojha, and Bishnu Ojha came to the spot to the rescue the
deceased but the accused persons assaulted them as well, for which
they all fled to their respective houses. Soonafter, the deceased was
taken to Niali Hospital. P.W.9 also accompanied them and got treated
there.
In his cross-examination, P.W.9 mentioned that he is an
accused in the counter case in S.T. No.198 of 1999, which was
initiated at the instance of Appellant- Basudev Barik. He denied to
have assaulted Krushna Chandra Barik, Birabar Barik and Khira
Barik, who were later treated at Niali Hospital. He also stated that
after reaching Niali Hospital at about 8-9 a.m, no police officers had
come there. He was accompanied by Ugrasen Ojha, Sambhu Ojha
(P.W.1), Alekha Ojha, ad Prabir Ojha (P.W.12). P.W.1 who is the
brother of the deceased had also come to the hospital along with his
mother. P.W.12- Informant Prabir Ojha went to Niali P.S. at about 8
a.m. The police came to the hospital next day at 10 a.m. He was
examined at Niali P.S. He denied to have told anyone about the
occurrence including the attending doctor at Niali Hospital. He also
denied to have seen P.W.1 when he came out of the house or any
outsiders at the spot at the time of the occurrence. He further denied
to the suggestion that Appellant-Basudev Barik had purchased the
case house by means of a registered sale deed on 14.05.1996 from
one Trilochan Rout and his brothers and that he was in occupation of
the said house since that date, and that the deceased was never in
occupation of the said house.
P.W.10 is the uncle of the deceased. He stated that the
occurrence took place about four years back. He further stated that
the accused persons being armed with lathi and boulders surrounded
the house of the deceased and hurled abusive language. He further
stated that the Appellant persons namely Sriram Barik, Basudev
Barik, Yudhistir Barik, set fire to the house of the deceased by means
of a match box. He further stated that he protested them. He further
stated that by that time the Appellant-Yudhistir Barik rushed towards
the deceased and chased him when the deceased tried to escape, the
Appellant-Basudev dealt one blow with lathi held by him for which
the deceased fell down on the ground with bleeding injuries. He
further stated that the Appellant persons namely Sriram Barik,
Yudhistir Barik, Iswar Barik and Birabar Barik also assaulted the
deceased with lathis held by them. He further stated that Budhi Ojha
is the father of the deceased, who came to the rescue of the deceased.
He further stated that at that time, the Appellant Narendra Barik dealt
a lathi blow on the buttock of Budhi Ojha. He further stated that
Bishnu Ojha, Bikash Ojha, Sambhu Ojha, Alekha Ojha came running
to the spot and caught hold of the deceased. He further stated that the
accused Sriram, Basudev, Yudhistir, Iswar, Birbar and other accused
persons pelted stones at those persons for which those persons left
the spot. He further stated that the deceased was taken to Niali
Hospital by his wife Rebati and the deceased was shifted to S.C.B.
Medical College where he died.
In his cross-examination, he mentioned that he is also arrayed
as an accused in S.T. No.198 of 1999, which was initiated at the
instance of Appellant- Basudev Barik. He denied to have assaulted
Krushna Chandra Barik, Birabar Barik and Khira Barik. He had
neither gone to Niali Hospital nor Niali P.S. He further stated that on
the same day of occurrence, Niali Police came to the spot at about 11
a.m. after the deceased was shifted to the hospital, and his statement
was also recorded then. The statement of Bikash, Sambhu, Bishnu,
and Ugrasen was also recorded by the police. He also denied to the
suggestion that Appellant-Basudev Barik had purchased the case
house and that he was in occupation of the said house on the date of
the occurrence.
P.W.11 is a co-villager. He narrated the incident in the exact
same way as narrated by P.Ws. 9 and 10. Appellants Sriram Barik,
Yudhistir Barik and Basudev Barik set fire to the house of the
deceased by means of match stick held by each of them, after giving
lathi blows to the deceased. By the time the deceased came to protest
the setting of fire, the Appellant- Basudev Barik assaulted him on the
back side of his head by which the deceased fell down with his face
downward. Bikash, Sambhu, Bishnu, Alekha, and P.W.8 were also
assaulted by the above-mentioned Appellants on protesting, as a
result of which they fled from the scene. The accused persons left the
spot after the house was burnt. He did not accompany the wife and
son of deceased to the hospital.
In his cross-examination, he stated to have seen P.W.8 on the
verandah. He did not report to Niali P.S. or intimate anyone else. He
was also arrayed as an accused in S.T. No.198 of 1999. He denied to
have assaulted the Appellants. He further stated that a lot of co-
villagers including the family of Judhistir Mallick, Gagan Mallick,
Sukalata Mallik, and Sabita Mallik had seen the occurrence. He
further denied to the suggestion that Appellant-Basudev Barik had
purchased the case house by means of a registered sale deed on
14.05.1996 and that Appellant-Basudev's father was in occupation
of the said house since that date, and that the deceased was never in
occupation of the said house. He could not explain the length and
girth of the lathi used by the accused persons however, he stated to
have seen all of them giving two blows each on the back, legs and
head of the deceased. P.W.11 did not come for rescue or call anyone
for help. He mentioned the names of accused-Bikash, Khira and
Sudarsan.
P.W.12 is the Informant, as well as deceased's son. In his
sworn testimony, he stated that upon hearing hullah, he came out of
his house and witnessed Appellant Basudev Barik, Sriram Barik and
Yudhistir Barik setting fire to his house by means of match stick held
by each of them. He mentioned Appellant- Yudhistir to have
instigated the assault on his father, and Appellant- Basudev assaulted
his father on his head by means of lathi, following which Appellant-
Sriram, Yudhistir, Birabar and Iswar also assaulted his father. On
trying to rescue the deceased, Appellant-Basudev hit him on his right
hand by lathi. His grand-father-Budhi Ojha came to the spot and
protested, upon which Appellant-Basudev dealt one lathi blow to his
buttock. He also mentioned, as other P.Ws., that when the co-
villagers came to rescue, they were too assaulted by the Appellant,
for which they fled from the spot. As P.W.7 (brother of P.W.12) and
their mother took the deceased to Niali Hospital, the Medical Officer
refused to treat him, and subsequently, he was taken to SCB Medical
College. Meanwhile, P.W.12 lodged the FIR vide Ext.3. Their house
was completely burnt.
In his cross-examination, he mentioned that he was also
arrayed as an accused in S.T. No.198 of 1999, which was initiated at
the instance of Appellant- Basudev Barik. He denied to have
assaulted Krushna Chandra Barik, Birabar Barik and Khira Barik. He
denied that the case house was in occupation of Appellant-Basudev,
and to have set the house ablaze himself. He was medically examined
at Niali Hospital at about 8:00 to 8:30 a.m. before lodged the FIR. He
also denied to have told anyone about the occurrence including the
Medical Officer. He was not accompanied by anyone to the P.S. and
the Police did not examine him there but later in the village. The FIR
was scribed by one Santosh Kumar Senapati which was read to
P.W.12 and he signed thereto. The FIR was handed over to the Police
at 10:00 a.m. In the FIR, it is not specifically mentioned the names
of the accused persons and the means of weapon used by them, or the
fact of assault made on him by Appellant-Basudev and his grand-
father by Appellant-Narendra, although he had asked the scribe to
mention their names and the manner of assault.
P.W.13 is the cousin brother of the deceased. He stated that
on the date of occurrence, he got up early in the morning to find the
deceased's house set on fire. Upon going there, he found that the
deceased was lying on the ground with bleeding injuries. He
physically consoled the deceased, while Appellants-Bira, Iswar and
Khira assaulted him with Lathis on his head, back and legs; as a result
of which, he became unconscious and regained his consciousness
after about one hour in his own house.
In his cross-examination, he mentioned that he is also arrayed
as an accused in S.T. No.198 of 1999, which was initiated at the
instance of Appellant- Basudev Barik. He denied to have assaulted
Krushna Chandra Barik, Birabar Barik and Khira Barik, or to have
outraged the modesty of Appellant Basudev's wife. He was
medically examined at about 6:00 a.m. He did not go to the P.S. after
he was medically examined and could not answer as to what
happened in Niali Hospital and who else were examined. P.W.13 also
denied to have stated about the occurrence to anyone or to have
disclosed the names of the accused persons before the doctor at Niali
Hospital. The Police had come to the hospital the next day of the
occurrence. He further stated that when he went to see the deceased
after coming from his house, only Prabira Ojha was present and no
other outsiders were there; and that none of the accused persons were
armed with swords, farsa or bujhalis.
P.W.14 is the deceased's brother's wife. On the day of
occurrence, upon hearing a hulla, she went outside her house and saw
that the accused persons being armed with lathis and boulders
surrounded the thatched house and started striking. The accused
persons threatened to kill her family and to vacate the house,
claiming the said house to be theirs. She named Appellants Sriram
Barik, Yudhistir Barik and Basudev Barik to have poured petrol and
threw kerosene-dipped cloths on the thatched houses and set it ablaze
with match box sticks. She also stated that the deceased protested the
accused persons for setting the house on fire. Appellant-Yudhistir
attempted to assault him. Appellant-Basudev dealt Thenga Blow on
the head of the deceased, for which he fell down, following which,
the Appellants Sriram Barik, Yudhistir Barik, Iswar Barik and
Birabar Barik assaulted the deceased with Lathis held by them, as
well. Upon hearing hue and cry Bikash, Sambhu, Daitari and
Ugrasen came to the spot but the accused persons pelted stones at
them, for which, they ran away from the spot in fear. The accused
persons further entered into the house of the P.W.14 and hurled
abusive language on the female folks of the house. Thereafter,
Rebati, Mihir, Prabir and others shifted the deceased to medical.
In her cross-examination, she mentioned that her husband is
also arrayed as an accused in the counter case. She denied regarding
injuries on Krushna Chandra Barik, Birabar Barik and Khira Barik.
She could not answer with respect to the number of people present at
the spot, any pending application, the length of time or direction in
which the stones were pelted from and the number of lathis blows
made on the deceased. She explained the location of the spot. She
had not seen any farsa held by any of the accused persons and the
injuries on the body of the deceased. She further denied to the
suggestion that Appellant-Basudev Barik had purchased the case
house from one Trilochan Rout and others and that he was in
occupation of the said house since that date, and that the deceased
was never in occupation of the said house. She could not specifically
name the persons who pelted the stones and who surrendered the
house.
P.W.15 is a co-villager. She stated that on the date of
occurrence, while she was tying cattle in front of her house, she saw
accused persons armed with lathis rushing to the deceased's house.
They surrounded the thatched house and gave lathi blows. They
hurled abusive languages and threatened to kill the deceased, while
asking him to vacate the house. She narrated the incident the exact
same way as P.W.14.
In her cross-examination, she stated that she saw fifty people
at the spot including Sabita Mallick and Bipin Biswal. She also stated
that she has not told anyone about the occurrence. . She had not seen
any weapon held by any of the accused persons and the injuries on
the body of the deceased. She could not answer with respect to the
number of people present at the spot, any pending application, the
length of time or direction in which the stones were pelted from and
the number of lathis blows made on the deceased. She explained the
location of the spot. She was unaware of the land dispute between the
deceased and Appellant-Basudev. The police came to the village on
the same day in the evening and recorded the statement of the
villagers including her. She stated to have named Appellants-
Yudhistir, Sriram, and Bira before the I.O.
11. Having regard to the witnesses testimonies and a close
scrutiny of the material on record, it emerges that the ocular account
of the incident is furnished by a number of independent villagers and
relatives who came out on hearing the hue and cry and observed the
sequence of events at close quarters. P.W.8 (son of the deceased)
states that on being called by his aunt, he came out and found his
father lying with bleeding injuries and saw accused persons standing
near the body armed with lathis and swords; fearful, he fled and
thereafter accompanied his mother in taking the deceased to hospital.
P.W.9 narrated that at about 5:30 a.m., he saw the accused persons
outside the deceased's house armed with lathis, observed the house
being set on fire, and specifically identified Appellants Yudhistir,
Basudev and Sriram as participants in the assault on the deceased; he
also stated that when villagers attempted to rescue, they too were
assaulted. P.Ws.10 and 11 gave substantially identical statements,
surrounding of the thatched house by a group of persons, use of lathis
and stones, active participation of the named Appellants in setting the
house ablaze by pouring petrol/kerosene and using match sticks, and
repeated lathi-blows on the deceased's head and body which caused
him to fall. P.W.12 (the Informant) and P.W.13 corroborate these
core facts: the house being set on fire, Appellant-Basudev delivering
a blow on the head, other named Appellants joining in the assault,
and the deceased being taken to Niali Hospital and later shifted to
S.C.B. Medical College. P.Ws.14 and 15, the female villagers who
witnessed the attack on the thatched house and the assaults on family
members also depose to the pouring of petrol/kerosene, the use of
match sticks to ignite the fire and the lathi-assaults on the deceased
and on those who came to his rescue. Taken together, these
eyewitness' statements describe the chronology, the principal
perpetrators, the weapons used and the immediate consequences in a
substantially common and coherent manner.
Furthermore, a distinct and particularly trustworthy strand of
the prosecution case is provided by the eyewitnesses who were
themselves injured while attempting to rescue the deceased. The
depositions show that Sambhunath, Ugrasen, Alekha, Bishnu, Bikash
and others, variously deposed as P.Ws.9, 10, 11, 12, 13 and related
witnesses, not only witnessed the assault but were struck while
intervening. Several of these injured witnesses narrate receiving
blows on the head, back and limbs; some were pelted with stones;
others were struck on vital parts of the body and were rendered
unconscious or seriously hurt. The injured witness, P.W.12 states that
he was medically examined at Niali before lodging the FIR. The
medical testimony of P.W.16, who examined the injured witnesses,
namely Ugrasen Ojha, Alekha Ojha, Prabir Kumar Ojha, Bishnu
Charan Ojha, Bikash Ojha, and Somanath Ojha, vide Ext.4, 5, 6, 7, 8
and 9 confirms the occurrence and nature of the injuries sustained by
the witnesses and records that the injuries were caused by hard and
blunt object. The fact that many of these witnesses bore injuries to
visible parts of the body, that they sought immediate treatment and
that their injuries were medically documented adds objective weight
to their oral testimony and reduces the probability of collusion or
fabrication.
12. In evaluating the testimony of the eyewitnesses and injured
witnesses in the present case, this Court is guided by the legal
principles reiterated by the Hon'ble Supreme Court in Balu Sudam
Khalde and Anr. vs. State of Maharashtra, reported in 2023
LiveLaw (SC) 279, provided as below: -
"26. When the evidence of an injured eye-witness is to
be appreciated, the undernoted legal principles
enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and
place of the occurrence cannot be doubted unless there
are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it
must be believed that an injured witness would not allow
the real culprits to escape and falsely implicate the
accused.
(c) The evidence of injured witness has greater
evidentiary value and unless compelling reasons exist,
their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on
account of some embellishment in natural conduct or
minor contradictions.
(e) If there be any exaggeration or immaterial
embellishments in the evidence of an injured witness,
then such contradiction, exaggeration or embellishment
should be discarded from the evidence of injured, but not
the whole evidence.
(f) The broad substratum of the prosecution version must
be taken into consideration and discrepancies which
normally creep due to loss of memory with passage of
time should be discarded.
27. In assessing the value of the evidence of the
eyewitnesses, two principal considerations are whether,
in the circumstances of the case, it is possible to believe
their presence at the scene of occurrence or in such
situations as would make it possible for them to witness
the facts deposed to by them and secondly, whether there
is anything inherently improbable or unreliable in their
evidence. In respect of both these considerations,
circumstances either elicited from those witnesses
themselves or established by other evidence tending to
improbabilise their presence or to discredit the veracity
of their statements, will have a bearing upon the value
which a Court would attach to their evidence. Although
in cases where the plea of the accused is a mere denial,
the evidence of the prosecution witnesses has to be
examined on its own merits, where the accused raise a
definite plea or put forward a positive case which is
inconsistent with that of the prosecution, the nature of
such plea or case and the probabilities in respect of it will
also have to be taken into account while assessing the
value of the prosecution evidence."
13. A close and holistic analysis of the ocular and injured-
witness testimonies reveals a clear and consistent attribution of
specific overt acts to each of the appellants. The evidence of P.Ws.
9, 10, 11, 12, 14 and 15 uniformly indicates that Appellant-Basudev
played a principal role: he was repeatedly identified as one of the
persons who set the thatched house ablaze by pouring
kerosene/petrol and using match sticks, and delivered the first lathi
blow on the head of the deceased, causing him to fall with bleeding
injuries. Appellant-Yudhistir Barik is consistently named as the
person who instigated the assault, challenged the deceased regarding
the ownership of the house, participated in setting the house on fire,
and thereafter joined in inflicting lathi-blows on the deceased.
Appellant-Sriram Barik is similarly attributed with the overt acts of
igniting the house, as well as assaulting the deceased and the rescuing
witnesses with lathis. Appellant-Iswar Barik is specifically identified
by multiple witnesses as one of the assailants who struck lathi-blows
on the deceased and also assaulted the intervening villagers.
Appellant-Birabar Barik is also consistently named as one of those
who participated in the collective assault, delivering multiple lathi-
blows on the deceased and attacking the rescuers. The witnesses
further narrate that stones were pelted by the group, including these
appellants, to deter intervention. Minor variations regarding the
precise number of blows, the presence of additional assailants, or
casual references to other weapons are peripheral and do not detract
from the core, consistent narrative. The few omissions or initial non-
disclosures, such as not mentioning the names of the assailants before
the attending doctor, stand reasonably explained by the urgency of
providing medical assistance and do not undermine their credibility.
14. The medical evidence of P.W.16, corroborating the injuries
of the injured witnesses, and of P.W.3, confirming that the deceased
suffered multiple fatal cranio-cerebral injuries consistent with lathi-
assaults on vital parts, independently supports the ocular account.
The fact that some witnesses are accused in a counter-case does not,
in the circumstances, render their otherwise consistent and
corroborated testimony unreliable more so when such evidence is not
sufficient to determine the question as to who is the aggressor.
In view of the foregoing discussions, the evidence
unmistakably establishes the active participation and specific overt
acts of Appellants - Yudhistir, Sriram, Iswar and Birabar in the
commission of the offences, and the role of now deceased Appellant-
Basudev as a principal assailant.
15. The evidence on record also discloses the existence of an
underlying land dispute between the parties, particularly relating to
the ownership and possession of the thatched house where the
occurrence took place. While the defence has asserted that the said
house belonged to Appellant-Basudev Barik on the basis of an
alleged purchase, this claim has been consistently denied by the
prosecution witnesses, who assert long-standing possession of the
deceased's family. Even assuming in argument that such a dispute
existed, the same furnishes a plausible motive for the Appellants to
dispute with the deceased and assert their claim over the property.
The sequence of events deposed to by multiple eyewitnesses,
namely, the Appellants questioning the deceased's ownership,
threatening him to vacate, and thereafter setting the house on fire and
assaulting him, fits squarely within this backdrop of hostility. The
presence of a land dispute, therefore, not only does not weaken the
prosecution case but provides an additional circumstance lending
coherence to the actions attributed to the Appellants. That said,
motive, though relevant, is not indispensable when there is direct,
reliable and corroborated ocular evidence, and in the present while
the prosecution case stands independently established on the strength
of reliable ocular evidence, the motive alleged is also plausible and
lends further assurance to the prosecution version.
16. The defence sought to draw support from the fact that several
prosecution witnesses, namely P.Ws.1, 2, 4, 5, 6 and 7, either did not
support the prosecution case or were declared hostile. However, the
mere fact that some witnesses have resiled from their earlier
statements does not erode the credibility of the entire prosecution
case. It is well-settled that the prosecution is not required to prove its
case by the sheer number of witnesses, and that the testimony of a
hostile witness is not effaced altogether but can still be relied upon
to the extent it supports the prosecution and stands corroborated by
other reliable evidence.
In the present case, the material and substantive evidence is
furnished by a group of injured and independent eyewitnesses whose
presence at the scene is established, both by their consistent
statements and by the medical evidence. Their testimonies are
cogent, reliable and unshaken in cross-examination. The non-
supportive stance of certain witnesses, many of whom are related to
the accused or may have been influenced by subsequent village
dynamics, does not in any manner dilute the value of trustworthy
evidence adduced by the prosecution. What is crucial is the quality
and not the quantity of evidence; and where credible ocular testimony
is corroborated by medical evidence, the lapse or hostility of some
witnesses does not impair the prosecution case. Accordingly, the
non-examination or non-support of some witnesses has no adverse
effect on the core substratum of the prosecution version, which
stands firmly established.
The legal position governing the appreciation of eyewitness
testimony is authoritatively settled in the locus classicus Vedivelu
Thevar vs. State of Madras, reported in [1957] SCR 981, wherein
the Supreme Court held that it is the quality of evidence, and not its
quantity -
"Hence, in our opinion, it is a sound and well-established
rule of law that the court is concerned with the quality
and not with the quantity of the evidence necessary for
proving or disproving a fact. Generally speaking, oral
testimony in this context may be classified into three
categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no
difficulty in coming to its conclusion either way-it may
convict or may acquit on the testimony of a single
witness, if it is found to be above reproach or suspicion
of interestedness, incompetence or subornation. In the
second category, the court equally has no difficulty in
coming to its conclusion. It is in the third category of
cases, that the court has to be circumspect and has to look
for corroboration in material particulars by reliable
testimony, direct or circumstantial. There is another
danger in insisting on plurality of witnesses. Irrespective
of the quality of the oral evidence of a single witness, if
courts were to insist on plurality of witnesses in proof of
any fact, they will be indirectly encouraging subornation
of witnesses. Situations may arise and do arise where
only a single person is available to give evidence in
support of a disputed fact. The court naturally has to
weigh carefully such a testimony and if it is satisfied that
the evidence is reliable and free from all taints which
tend to render oral testimony open to suspicion, it
becomes its duty to act upon such testimony. The law
reports contain many precedents where the court had to
depend and act upon the testimony of a single witness in
support of the prosecution. There are exceptions to this
rule, for example, in cases of sexual offences or of the
testimony of an approver; both these are cases in which
the oral testimony is, by its very nature, suspect, being
that of a participator in crime. But, where there are no
such exceptional reasons operating, it becomes the duty
of the court to convict, if it is satisfied that the testimony
of a single witness is entirely reliable."
17. Coming to the applicability of section 149 IPC, the evidence
clearly establishes that the Appellants had formed an unlawful
assembly and acted in concert with a common object. The setting of
the deceased's house on fire, the assault on him on vital parts of the
body, and the simultaneous attack on those who attempted to
intervene demonstrate a shared intention to cause grievous harm and
to prevent any resistance. Under Section 149 IPC, it is not necessary
to prove the specific overt act of each member once the common
object is made out; it is sufficient that the offence committed was in
prosecution of that object or was one which the members knew to be
likely. The consistent testimony of P.Ws. 9, 10, 11, 12, 13, 14 and 15
shows that each Appellant actively participated, either by igniting the
house, delivering blows, or by preventing rescue, making the fatal
injuries inflicted on the deceased a natural and probable consequence
of their collective action. Accordingly, the provisions of Section 149
IPC are squarely attracted.
Conclusion:
18. In view of the foregoing analysis of the eyewitness's
testimony, the corroborating medical evidence, the established
motive arising from the property dispute, and the proved
participation of each of the Appellants in the unlawful assembly, this
Court finds no infirmity in the conclusion reached by the learned trial
court. In essence, we are humbly of the opinion that the prosecution
has successfully established beyond reasonable doubt that the
Appellants formed an unlawful assembly with the common object of
asserting their claim over the disputed house by force, and in
prosecution of that object, set the thatched house on fire and inflicted
multiple blows on the vital parts of the deceased, causing fatal
injuries. The fatal assault on the deceased-Natabar Ojha was clearly
in furtherance of the common object, thereby attracting the vicarious
liability under Section 149 IPC. The conviction of all the Appellants
under Sections 148, 302 and the conviction of the Appellants-
Yudhistir Barik, Shriram Barik and Basudev Barik under section 436
IPC is thus well supported by the evidence on record and warrants
affirmation. It is also placed on record that Appellant-Basudev Barik
is since dead, and the appeal, insofar as it concerns him, stood abated.
As regards the remaining Appellants, this Court finds no ground to
interfere with the conviction and sentence imposed by the trial court.
As a result, the judgment and order dated 16.08.2001, passed by the
learned 2nd Additional Sessions Judge, Cuttack in S.T. Case No.197
of 1999 stands confirmed.
The Appellants, who are presently on bail, are directed to
surrender before the learned trial court within a period of three weeks
from the date of this judgment, failing which the trial court shall take
all necessary steps in accordance with law to secure their custody for
serving the sentence.
Before parting, this Court places on record its sincere
appreciation for the valuable assistance rendered by Mr. Nilambar
Jena, learned Amicus Curiae. The Court acknowledges his diligent
efforts and the able assistance provided in the effective disposal of
this appeal. This Court also records its appreciation for the valuable
assistance rendered by Mr. Patha Sarathi Nayak, learned Additional
Government Advocate, whose efforts have likewise been of
considerable assistance to the Court.
(Chittaranjan Dash)
Judge
I, agree.
(S. K. Sahoo)
Judge
Sarbani
Designation: Junior Stenographer
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-Nov-2025 17:31:27
