Orissa High Court
Jayadev Pradhan vs State Of Orissa on 9 September, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.188 of 2003
(In the matter of an application under Section 374 of the Criminal
Procedure Code, 1973)
Jayadev Pradhan ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Mr. P.K. Maharaj, Amicus Curiae
For the Respondent : Mr. Raj Bhusan Dash, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 19.08.2025 : Date of Judgment: 09.09.2025
S.S. Mishra, J. The sole appellant Jayadev Pradhan has assailed the
judgment of conviction and order of sentence dated 05.07.2003 passed
by the learned 1st Adhoc Additional Sessions Judge, Puri in Sessions
Trial Case No.52/68/89 of 2002/1999, whereby the appellant has been
convicted for the offence punishable under Section 324 of the IPC and
on that count, he has been sentenced to undergo R.I. for one year and to
pay fine of Rs.2,000/- (Rupees two thousand), in default of payment of
fine, to undergo further R.I. for three months.
2. Since the counsel for the appellant remained consistently absent,
therefore, on 22.07.2025, this Court requested Mr. P.K. Maharaj,
Advocate to assist this Court in the matter in the capacity of Amicus
Curiae.
3. Heard Mr. P.K. Maharaj, learned Amicus Curiae appearing for the
appellant and Mr. R.B. Dash, the learned Additional Standing Counsel
appearing for the State.
4. The prosecution case in brief and terse is that on 29.12.1996, four
accused persons including the present appellant came in front of the
house of one Bidyadhar Parida (P.W.4) of village Beleswarpatna and
told him to come with them to the nearby club house of the aforesaid
village. The said Bidyadhar Parida accompanied the four accused
persons and all of them reached in front of the club house. Suddenly, the
appellant-accused brought out a bhujali, which was kept concealed
inside his shirt and dealt a blow on the left side neck of P.W.4 causing
cut injury with bleeding. The aforesaid occurrence was witnessed by
Kalu Parida, Rajkishore Parida, Dhuna Parida and others. It is further
alleged that, the accused persons have also criminally intimidated to kill
P.W.4. When the nephew of the informant along with others intervened,
the accused persons took their heels. The injured P.W.4 after sustaining
injury on his neck fell down there and lost his sense and was shifted to
the D.H.H., Puri for treatment. Hence, the F.I.R.
5. After investigation, the charge sheet was filed against four accused
persons including the present appellant for the offence punishable under
Section 307/34 of the IPC.
6. The prosecution in order to bring home charges under Section
307/34 of the IPC against four accused persons, examined as many as 11
witnesses. Out of the said 11 witnesses, P.Ws.1 and 2 have not supported
the prosecution case and they were declared hostile. P.W.3 was the
doctor, who examined the injured and the injury report was exhibited as
Ext.1. P.W.4 was the injured. P.W.8 was the I.O. of the case. P.Ws. 5, 6,
9 and 10 were the eye witnesses to the occurrence whereas P.W.11 was a
post-occurrence witness, who has not supported the prosecution case.
P.W.7 was the informant, who has proved the F.I.R.
7. Learned trial Court, while relying upon the evidence of P.W.4, the
injured witness and P.Ws. 5, 6, 9 and 10, the eye witnesses those who
have supported the prosecution case, have arrived at the following
conclusion:
"11. The crucial question for consideration is as to whether on the
basis of the aforesaid evidence it can safely be stated that the
accused persons have committed the offence U/s. 307/34 of the
I.P.C. In order to attract the ingredients of Section 307 of the
I.P.C., it is necessary to establish that if the victim would have
met his death the offence would have been one U/s. 302 of the
I.P.C. Prosecution to make out facts and circumstances as
envisaged by Section 300 of the I.P.C. If the ingredients of Section
300 of the I.P.C. are wholly lacing there can be no conviction
U/s. 307 of the I.P.C. Unless it can be said that the intention or
knowledge of the accused was to cause such bodily injury as
would come within one of the four clauses of Section 300 of the
IPC, the accused persons cannot be held guilty of offence U/s.
307 of the I.P.C. I have already pointed earlier that P.W.3 stated
in his evidence that the injury which he noticed on the person of
P.W.4 is a simple injury and was caused by sharp cutting weapon
like Bhujali. It is specifically stated by the doctor that the injury in
question is not sufficient to cause the death of a person. The
accused persons are four in number and admittedly accused
Jayadev was armed with a sharp cutting weapon like Bhujali. If
accused Jayadev and his companion accused persons have the
real intention to cause the death of the injured then the blow by
Bhujali must have been dealt on the head of the injured. There is
no evidence that when accused Jayadev assaulted the injured
Bidyadhar there was any intervention by any outsider or any
witness. If he had the real intention to cause the death then he
would have caused several fatal blows on the vulnerable part of
the body of the injured by means of said sharp cutting weapon
such as Bhujali. With the above background it is to be considered
whether the accused persons have really attempted to cause the
murder of the injured."
8. Learned trial Court, on the basis of the reasoning as recorded
above, came to the conclusion that except the present appellant, all the
three other accused persons those who stood charged for the offence
under Section 307/34 of the IPC are liable to be acquitted. Similarly, the
learned trial Court has also found the present appellant not guilty for the
offence under Section 307/34 of the IPC, however, recorded the
conviction against the appellant of the offence under Section 324 of the
IPC, inter alia, recording as under:
"16. Now it is to be considered when charge was framed
U/s.307/34 of the I.P.C. against all the accused persons whether
accused Jayadev Pradhan can be convicted U/s. 324 of the I.P.C.
for his individual act. In this connection provisions of Section 221
and 222 of the Cr. P.C. is to be looked into. Section 221 and 222 of
the Criminal Procedure Code are the two provisions dealing with
the powers of a criminal court to convict the accused of an offence
which is not included in the charge. In the decision reported in
(2001) 20 OCR (SC) at page 363 Shamansaheb M. Multtani v.
State of Karnataka, it has been held as follows:
"Section 222(1) of the Code deals with a case "when a person
is charged with an offence consisting of several
particulars". The Section permits the Court to convict the
accused "of the minor offence, though he was not charged
with it". Sub-section (2) deals with a similar, but slightly
different, situation. "When person is charged with an
offence and facts are proved which reduce it to a minor
offence, he may be convicted of the minor offence although
he is not charged with it."
What is meant by "a minor offence" for the purpose of
Section 222 of the Code? Although the said expression is
not defined in the Code it can be discerned from the context
that the test of minor offence is not merely that the
prescribed punishment is less than the major offence. The
two illustrations provided in the Section would bring the
above point home well. Only if the two offences are cognate
offences, wherein the main ingredients are common, the one
punishable among them with a lessor sentence can be
regarded as minor offence vis-à-vis the other offence."
17. Keeping in view the principles laid down in the aforesaid
decision there is no bar to convict accused Jayadev Pradhan U/s.
324 of the I.P.C. since the offence U/s. 324 of the I.P.C. is a minor
offence in comparison to Section 307 of the I.P.C."
9. The sole appellant, being aggrieved by the judgment of conviction
and order of sentence of the learned trial Court, has preferred the present
Criminal Appeal.
10. Mr. Maharaj, learned Amicus Curiae submitted that the learned
trial Court, by disbelieving the eye witness count from the deposition of
P.Ws.5, 6, 9 and 10 have acquitted three co-accused persons. The same
set of evidence cannot be relied upon to convict the present appellant for
the offence under Section 324 of the IPC. The learned trial Court has
also gone wrong by relying upon the evidence of one set of the eye
witness by ignoring the version of the other set of the eye witnesses,
namely, P.Ws. 1, 2 and 11. He has also taken me to the evidence of the
I.O., P.W.8. The I.O. in his cross-examination has stated as under:
"4. P.W.4 did not state before me in his previous statement
that witness Prasant Kumar Parida, Kelu Parida, Manas Parida,
Dhuna Pradhan, Nabakishor Swain and Kasinath Pandi have seen
the occurrence. P.W.5 did not state before me that he chased to
apprehend accused Jayadev but in vain and he did not state before
me that he put a Sua colour Gamuchha on the injury of the injured
to check oozing of blood. P.W.5 did not state before me that blood
stained Lungi, shirt and Gamuchha of the injured were seized by
police.
5. P.W.6 did not state before me that witnesses Dhaneswar
Pradhan, Nabakishor Swain, Sadasiv Swain, Raghunath Swain and
Brundaban Swain have seen the occurrence of this case. P.W.6 did
not state before me that the articles of Ext.2 were seized by police.
P.W.7 did not state before me that Rajkishor Parida informed me
regarding the occurrence while he was in the garden. P.W.7 did
not state before me that he ascertained at the spot from the
witnesses Kalu Parida and Dhuna Pradhan that accused Jayadev
assaulted on the left neck of Bidyadhar by means of a bhujali
causing bleeding injury. It is not a fact that I have not properly
investigated the case."
11. Perusal of the evidence of P.W.8 makes it clear that the so-called
eye witnesses those who have deposed against the appellant had not
stated the same facts before the police, when they were examined under
Section 161 of the Cr. P.C.
12. Mr. Maharaj, learned Amicus Curiae further submitted that P.W.4,
the injured witness in his cross-examination has stated that he was
injured by the present appellant by a bhujali and sustained bleeding
injury. On the spot, there was blood stain. However, in the cross-
examination in paragraph-3 of the evidence of P.W.8, he has stated that
he did not find any mark of blood at the spot of occurrence. Likewise,
Mr. Maharaj, learned Amicus Curiae has highlighted various other
contradictions appearing in the testimony of the eye witness and the I.O.
in the present case.
13. Mr. Raj Bhusan Dash, learned Additional Standing Counsel for
the State has extensively read out the evidence of P.W.4, the injured and
P.W.3, the doctor, who had examined the injured. He has submitted that
enough material has come on record to establish the fact that the present
appellant had given the bhujali blow to the P.W.4, which was witnessed
by as many as four eye witnesses. The injuries found on the body of
P.W.4 by the doctor, P.W.3 corresponding to the injury sustained by
P.W.4 at the hands of the appellant.
14. I have carefully gone through the evidence on record with the help
of both the learned counsels for the parties.
15. P.W.4, the injured in his evidence has deposed as under:
"The occurrence of this case took place on 29.12.96 at 11.30
A.M. in front of the club house of village Beleswar patna. On the
day of occurrence I was in my house and both the accused
persons present in the court and the other two absentee accused
persons namely Pramoda Pradhan and Nimain Pradhan called
me to outside and I came to outside and all the four accused
persons caught hold of me and forcibly took me infront of the said
club house. The said club house is situated at a distance of 250
feet from my house. When all the four accused persons forcibly
took me to the said club house on the way they were abusing me
saying SALA MAGIHA and also criminally intimidated me to kill
me while all the four accused detained me in front of the said club
house accused Jayadev Pradhan brought out a bhujali which he
has kept under his shirt and inflicted a blow on the left side front
neck of mine causing bleeding injury."
The said witness has also stated in his testimony that the incident
as narrated above by him was witnessed by P.Ws. 1, 2, 5, 9, 10 and 11. It
is true that P.Ws. 1, 2 and 11 those who had witnessed the occurrence
had turned hostile. However, the other eye witnesses, namely, P.Ws. 5,
6, 9 and 10 have corroborated the evidence of P.W.4 to the hilt. There is
no contradiction in their evidence in so far as narration of the incident is
concerned. All the witnesses have sustained extensive cross-
examination. However, they have not shaken in their version.
16. P.W.3, the doctor has deposed as under:
"xxx one incised wound 3 and ½" x 1" x ½" present
horizentally over left side of anterior part of root of neck 1"
above the left clavicle bone. The injury was tailing towards left
side, bleeding present. The injury was simple in nature and
might have been caused by a sharp cutting weapon xxxx".
The doctor has also deposed that the injuries of Ext.1 can be
caused on the sharp edge of the bhujali. The doctor was cross-examined,
but nothing could be elucidated from him, which could discredit his
evidence. Therefore, the overall reading of the evidence brings out the
sequence of the event that the present appellant had given a bhujali blow
to P.W.4, which was witnessed by as many as four eye witnesses. That
part of the evidence stood corroborated with the evidence of the doctor.
Therefore, the findings recorded by the learned trial Court as mentioned
above convicting the appellant for the offence punishable under Section
324 of the IPC cannot be doubted on the face of the evidence on record.
17. Learned trial Court has acquitted the appellant for the offence
under Section 307/34 of the IPC, which has not been questioned by the
State. Hence, in so far as the guilt of the appellant under Section 324 of
the IPC is concerned, this Court is not inclined to interfere with the
same. Hence, the conviction of the appellant stands affirmed.
18. At this stage, Mr. Maharaj, learned Amicus Curiae submitted that
the appellant was on bail throughout the trial. However, after the
impugned judgment was pronounced on 05.07.2003, he was granted bail
by this Court on 05.08.2003. The appellant has furnished the bail bond
on 12.08.2003. Therefore, the appellant has almost undergone the
custody for one month. He further submitted that the appellant was 32
years of age at the time of the incident i.e. on 29.12.1996. At present, he
would be about 61 years of age. He has suffered the ordeal of trial for
more than three decades. Therefore, at this stage, sending him to the
custody to serve out the remaining period of sentence would be harsh.
Hence, he submitted that the appellant may be treated under the
Probation of Offenders Act.
19. Regard being had to the nature of allegation against the appellant
and the fact that the appellant has already undergone about one month
sentence, I am inclined to modify the sentence while confirming the
conviction of the trial Court. The appellant is only liable to pay fine of
Rs.10,000/- (Rupees ten thousand), in default of payment of fine, he
shall undergo further period of R.I. for one month. The amount to be
deposited by the appellant shall be disbursed to P.W.4, the injured in
accordance with the provisions of Section 357 of the Cr. P.C.
20. This Court records appreciation for the effective and meaningful
assistance rendered by Mr. P.K. Maharaj, learned Amicus Curiae. He is
entitled to the honourarium of Rs.7,500/- (Rupees seven thousand five
hundred) as a token of appreciation.
21 The Criminal Appeal is partly allowed and disposed of.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 9th Day of September, 2025/ Subhasis Mohanty
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 10-Sep-2025 20:09:02
