Jogi @ Jogendra Jena vs State Of Orissa
2025 Latest Caselaw 9471 Ori

Orissa High Court

Jogi @ Jogendra Jena vs State Of Orissa on 28 October, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                       CRA No. 205 of 1999

(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)

Jogi @ Jogendra Jena             .......                     Appellant

                               -Versus-

State of Orissa                      .......              Respondent

For the Appellant : Mrs. Sartika Das, Advocate For the Respondent : Ms. Suvalaxmi Devi, Additional Standing Counsel

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 04.09.2025 :: Date of Judgment: 28.10.2025

S.S. Mishra, J. The present Criminal Appeal is directed against the

judgment and order dated 24th August, 1999, passed by the learned Additional District and Sessions Judge, Nayagarh, in S.T. Case

No.128/86 of 1997 arising out of G.R. Case No. 414/96, convicting the

appellant under Section 325 of the Indian Penal Code and sentencing

him to undergo rigorous imprisonment for four years and to pay a fine of

Rs.5,000/-, in default to undergo further rigorous imprisonment for one

year. The learned trial Court also directed that the fine amount, if

realized, be paid to the widow of the deceased as compensation.

2. Heard Mrs. Sartika Das, learned counsel for the appellant and Ms.

Suvalaxmi Devi, learned Additional Standing Counsel for the State.

3. The prosecution case, in brief, is that on 28.09.1996 at about 8

P.M. in village Bilamanapur under Odagaon Police Station, there was a

quarrel between the appellant accused Jogendra Jena and one Rabindra

Rout (P.W.1), the son of the deceased Banambar Rout. Initially,

according to the FIR (Ext.1) lodged by Duryodhan Rout (P.W.2), the

quarrel arose when P.W.1 and one Kalucharan Rout were playfully

throwing sand on each other near their house, and some of it accidentally

fell on the accused, who was sleeping nearby. The accused, being

annoyed, slapped P.W.1 twice. Hearing the cries of P.W.1, his father

Banambar (the deceased) and brother Santosh (P.W.4) came to the spot,

whereupon a further altercation ensued, resulting in the accused dealing

a lathi (Katua Thenga) blow on the chest of Banambar Rout. The

deceased fell down unconscious and succumbed to his injuries while

being taken to Odagaon for treatment.

4. During the trial, however, the prosecution witnesses slightly

modified the genesis of the occurrence, stating that the dispute arose not

due to throwing of sand, but because the accused, when not allowed to

join a card game being played by P.W.1 and others, became enraged and

slapped P.W.1. When the deceased came out to question the accused, the

latter dealt a blow on his chest with a wooden stick (Katua Thenga).

5. On the oral report of P.W.2, A.S.I. Arjun Tripathy (P.W.11)

registered Odagaon P.S. Case No.89 dated 29.09.1996 under Section 302

IPC and took up investigation. Subsequently, the charge of investigation

was handed over to P.W.10, the Circle Inspector, who completed the

investigation and submitted charge-sheet against the accused.

6. The plea of the accused was one of complete denial. Rather the

stance was that the deceased accidentally fell upon a wooden peg fixed

in the ground for tying cattle and sustained injuries, leading to his death.

No defence evidence was adduced.

7. The learned trial Court, upon consideration of the evidence of

eleven prosecution witnesses, held that the prosecution had failed to

prove intention on the part of the accused to commit murder. However,

as the post-mortem report revealed fracture of the 9th and 10th ribs and

congestion of the spleen, the learned Court concluded that the accused

had voluntarily caused grievous hurt to the deceased by a blunt weapon,

which resulted in death. Relying upon the decision in Lokanath Behera

v. State of Orissa, reported in 57 (1984) C.L.T. 312, the trial Court

convicted the accused for the commission of offence under Section 325

IPC and imposed the sentence. The relevant portion of the aforesaid

judgment is extracted herein below for the sake of convenience:-

"13. It was argued by the learned Defence counsel that as per the prosecution case, there was a sudden quarrel between the accused and P.W.1 and the deceased intervened in the matter. The assault was

made by a piece of wood (Katua) on the chest. If there would have been any intention to commit murder, the accused would have assaulted on the vital part of the body. But the assault was made on the chest. Only one blow has been given and there is no attempt even to give any second blow. There is no evidence of about any previous ill feeling between the parties and the occurrence took place on the spur of the moment. In view of such evidence, according to me, at best the offence under section 325 of the I. P. C. can be said to be made out in as much as the evidence of the Doctor P.W.9 is that only two ribs fracture leading to conjestion of spleen in support of submission, he relies on a decision reported in 57 (1984) C.L.T. 312 in the case of Lokanath Behera -Vrs- State of Orissa. In view of his such submission, I am to scrutinise the reported decision to see how far the same can be applied in the given facts and circumstances of this case.

.........The said view of the Hon'ble Court has all force in the given facts and circumstances of the case. Similarly, the assault of the accused by dealing a fatal blow on the deceased since caused fracture of his ribs which pierced into the spleen and rupture resulting the death of the deceased amounts his such overt act causing grievous hurt within the purview of section 320 of the Code, which is punishable under section 325 of the Code. But his such act cannot be clothes either within the purview of section 302 or 304 of the Code.

16. In the result and in ultimate analysis of the materials on record, I hold the accused guilty under

section 325 of the I.P.C for voluntarily causing grievous hurt to the deceased and convict him thereunder."

8. Aggrieved by such findings recorded by the learned trial Court,

which led to the conviction and sentence, the sole appellant filed the

present appeal. However, the State did not prefer any appeal

complaining the reduction of offence from offence under Section 302 of

I.P.C. to 325 of I.P.C.

9. Ms. Das, learned counsel for the appellant, contended that the

conviction under Section 325 of I.P.C. is unsustainable in law and fact. It

was argued that the genesis of the occurrence, as stated in the FIR,

materially changed during trial, from a quarrel arising out of throwing

sand to one concerning a card game which renders the prosecution

version doubtful. The evidence of P.Ws.1, 2 and 4, being close relatives

of the deceased, lacks independent corroboration and is inconsistent with

the initial version. The learned trial Court itself recorded that P.Ws.2 and

4 were not eyewitnesses to the assault and disbelieved the alleged dying

declaration. Despite this, the Court relied upon the same set of evidence

to convict the appellant, which is contradictory and legally untenable.

10. It was further urged that the medical evidence does not

conclusively support the prosecution story. P.W.9, the doctor, has opined

that the injuries found could also be caused by a fall on a wooden peg,

which tallies with the defence version. The alleged weapon of offence

was neither seized nor shown to the doctor for verification, creating a

serious lacuna in the prosecution case. In absence of reliable eye-

witnesses, corroborative evidence, or recovery of weapon, the

prosecution has failed to establish guilt beyond reasonable doubt. The

appellant, therefore, deserves the benefit of doubt and consequent

acquittal.

11. Ms. Devi, the learned Additional Standing Counsel appearing for

the State supported the judgment of conviction, submitting that the

prosecution has proved its case beyond reasonable doubt through the

consistent and cogent testimony of P.Ws.1, 2 and 4, who are natural

witnesses being present at the spot during the occurrence. Their evidence

is fully corroborated by the medical evidence of P.W.9, who found

fracture injuries on the ribs of the deceased consistent with a lathi blow.

The trial Court, after analyzing the evidence, rightly held that though the

offence of murder under Section 302 IPC was not made out due to lack

of intention to cause death, the offence under Section 325 IPC stood

clearly proved.

12. It was further argued that the mere fact that the eye-witnesses are

related to the deceased does not render their evidence unreliable,

particularly when their testimony remains unshaken during cross-

examination and there is no motive for false implication. Non-seizure of

the weapon or non-examination of independent witnesses is not fatal

when direct and trustworthy ocular evidence is available. Minor

discrepancies in the sequence of events do not affect the core of the

prosecution story. Hence, there being no illegality or infirmity in the

impugned judgment, the appeal merits dismissal.

13. I have carefully considered the submissions advanced by the

learned counsel for the appellant as well as the learned counsel for the

State, and perused the entire lower court records, including the

depositions of the prosecution witnesses, the medical evidence, and the

reasoning assigned by the learned trial Court.

14. The entire case of the prosecution hinges upon the evidence of

P.Ws.1, 2 and 4. P.Ws.1 and 4 are the son of the deceased whereas

P.W.2 is the elder brother of the deceased. As discussed above, the

narration of the prosecution story substantially varied from the initial

version reflecting in the F.I.R. The learned trial Court has carefully

analyzed this aspect of the matter and recorded the following findings:-

"8. On looking to the evidence of P.W.1 and the occurrence narrated in the F.I.R., I have opined that the genesis of the occurrence are found discrepant on the material particulars of the case in the F.I.R. lodged by P.W.2 it was stated that the quarrel stated to have been ensued due to throwing of sand by Rabi (P.W.1) which fell on the accused, but during trial, it was stated by P.W.1 that as the accused was not allowed to play cards, he became enraged and slapped P.W.1 whereafter the quarrel took place leading to assault. In the F.I.R. it is mentioned that Dandapani Jena, Kabira Jena, Narayan Jena and Ghana Behera were present at the time of occurrence and they were trying to separate the quarreling parties, but none of them have been examined by the prosecution. Further, in the evidence of P.W.2, in Para No.7 of cross examination stated that ten to twelve

persons of his village were standing when the quarrel was going on, but none of them have been examined by the prosecution. The witnesses examined were said to be the eye witnesses to the occurrence are all related to the deceased. P.Ws.1 & 4 are the sons and P.W.2 is the younger brother of the deceased. It has been held in a decision reported in A.I.R. 1978 (S.C.) Page 59 in the case of Veer Singh vs. State of U.P. that "Where all the eye witnesses examined by the prosecution had serious animousity against the accused and were interested in implicating the accused and neither independent witnesses were examined nor any reasonable explanation was given by the prosecution, the court would be justified in drawing an adverse inference against the prosecution". Keeping in view the law propounded in this decision, I am to decide this case. Although, the witnesses present at the time of the occurrence have been named in the F.I.R. none of them have been examined nor the persons standing at the time of quarreling were also examined. The prosecution intends to prove the charge against the accused through the evidence of P.Ws.1, 2 & 4 who are none-else than the kith and kins of the deceased. In the circumstances, it is to be seen that how far their evidence is clinching to establish the charge against the accused."

15. I have gone through the evidence of all the three witnesses. I fully

agree with the findings recorded by the learned trial Court. However, it

is also true that the analysis of the evidence of the three witnesses

illuminate the undisputed fact that in a spur of moment, the accused-

appellant has dealt a sudden thenga blow on the chest of the deceased, as

a result of which, he fell down and lost his sense and eventually

succumbed to the blow. It is also evident from the testimony of the

witnesses that the appellant had no intention to cause harm to the

deceased which would lead to his death. He had only given one blow on

a spur of the moment when a sudden quarrel broke out. There was no

premeditating plan or motive to cause such event. This appears to be an

unfortunate incident caused due to immediate provocation. That is the

reason, the learned trial Court has rightly acquitted the appellant of the

charges under Section 302 of I.P.C. The learned trial Court has also

analysed the evidence of P.W.5, who was examined by the prosecution

to prove the dying declaration of the deceased. The learned trial Court

has rightly disbelieved P.W.5 and recorded the following findings:-

"10. P.W.5 is a witness who has stated about the dying declaration of the deceased. He has stated that the deceased was telling catching hold of his belly "NANA MARIGALI" and he further told that the accused Jogendra Jena assaulted him. But his such statement cannot be believed for the following reasons that the cross examination he simply states (Para No.3) that the deceased told him that "NANA MARIGALI" and so

saying he passed urine and stools and could not say anything more. This statement in his cross examination gives a go-bye to the so-called dying declaration aspect made in chief examination. P.Ws.1, 2 & 4 being related to the deceased and were present near him have not whispered about any such dying declaration by the deceased. According to these witnesses after the assault the deceased fell down on the ground and lost his sense and in that condition, he was shifted to the hospital, in course of which, he died. In view of such evidence, the dying declaration theory cannot be accepted."

No fault could be found from the reasoning recorded by the

learned trial Court while appreciating the evidence of P.W.5.

16. From the conjoint reading of the evidence of P.Ws.1, 2, 4 and 9,

the only aspect which borne out on record is that the appellant has dealt a

thenga blow to the deceased at his chest, which resulted the death of the

deceased, which was unintentional. P.W.9, the doctor has also opined

that the deceased received the following injuries:-

"(i) Bruise 2" x 2" on left 9th and 10th coastal ribs posterior to midaxillary line.

(ii) Fracture of 9th and 10th left coastal ribs posterior to midexillary line."

The aforementioned part of the evidence of P.W.9 remained

unshaken despite cross-examination. In view of the aforementioned, the

inevitable conclusion to be drawn by appreciating the evidence of all the

witnesses in unison is that the accused-appellant is guilty of offence

punishable under Section 325 of I.P.C.

17. The learned trial Court on the count of the conviction under

Section 325 of I.P.C. has sentenced the appellant to undergo R.I. for four

years with a fine of Rs.5,000/-, in default to make the payment, the

appellant was also sentenced to undergo R.I. for one year.

18. On the point of sentence, Ms. Das, learned counsel for the

appellant submitted that the incident relates back to the year 1996. At

that point of time, the appellant was 28 years of age. At present, he is 57

years of age and leading a respectful life along with his family. She

further submitted that the appellant has no criminal antecedents and no

other case of a similar nature or otherwise is stated to be pending against

him. Over the years, he has led a dignified life, integrated well into

society, and is presently leading a settled family life. Sending him to jail

after such a long gap would serve no real purpose and may instead cause

unnecessary hardship to him and his family. She also submitted that the

appellant has already undergone custody period of three months seven

days. In that view of the matter, Ms. Das, learned counsel for the

appellant prays that a lenient view should be taken.

19. Considering all the aforementioned mitigating circumstances, the

sentence awarded by the learned trial Court stands modified to the

sentence the appellant has already undergone. However, the fine amount

is enhanced to Rs.25,000/- (Rupees twenty-five thousand), in default, to

pay the fine, the appellant shall undergo R.I. for one and half months.

The fine amount to be deposited shall be disbursed to the wife of the

deceased or his son (P.W.1) in accordance with the provision of Section

357 Cr.P.C.

20. Accordingly, the Criminal Appeal is partly allowed.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack.

Dated the 28th October, 2025/ Swarna

Designation: Senior Stenographer

Location: High Court of Orissa