Orissa High Court
Tadingi Domuri And Others vs State Of Orissa on 9 September, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.257 of 1995
(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)
Tadingi Domuri and others ....... Appellants
-Versus-
State of Orissa ....... Respondent
For the Appellants : Ms. Upasika Samantaray, Amicus Curiae
For the Respondent : Mr. Raj Bhusan Dash,
Additional Standing Counsel
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 21.08.2025 :: Date of Judgment: 09.09.2025
S.S. Mishra, J. The present Criminal Appeal is filed by the appellants
under Sections 374(2) of the Cr.P.C., is directed against the judgment
and order 24.08.1995 passed by the learned Additional Sessions Judge,
Jeypore in Sessions Case No. 82 of 1994, arising out of G.R. Case No.
348 of 1994, whereby the appellants were convicted under Section
324/34 I.P.C. and sentenced to undergo rigorous imprisonment for one
year each.
2. Pursuant to the order of this Court dated 27.03.2025, a report was
received from the Inspector-in-Charge, Pottangi Police Station on
19.04.2025, stating that appellant No.1-Tadingi Domuri, has expired
about thirty years ago and appellant No.2-Tadingi Sashi, has expired
about ten months back. Hence, the appeal, so far as it relates to appellant
nos.1 and 2, stands abated. The present appeal, therefore, survives only
with respect to appellant No.3, namely, Tadingi Ranju.
3. The present appeal is pending since 07.09.1995. When the matter
was taken up for hearing on 31.07.2025, none has appeared on behalf of
the appellants. Therefore, this Court requested Mr. Lalatendu
Samantaray, learned counsel, who is present in Court to assist the Court
as Amicus Curiae. He has readily accepted the same and after obtaining
entire record assisted the Court very effectively. This Court records
appreciation for the meaningful assistance rendered by Mr. Samantaray.
4. Heard Mr. Lalatendu Samantaray, learned counsel along with Ms.
Upasika Samantaray, learned Amicus Curiae appearing for the appellants
and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the
State.
5. The prosecution case, in brief, is that the informant Hiridika Saba
had married to Raja, the daughter of accused Tadingi Domuri (appellant
No.1). Subsequently, Raja went to her father's house and there accepted
the son of one Mandangi Relly of Narangipadar as her second husband.
The informant and some villagers, including the deceased Hiridika
Lacheya, therefore, demanded kanya sulka from the family. On
04.03.1994, the informant and others went to the village of the accused
persons and, being told that kanya sulka would be paid by Mandangi
Relly of Narangipadar, proceeded to that village along with the accused
persons. At Narangipadar, Mandangi Relly gave four fowls and rice to
them for cooking. When the deceased was carrying another fowl towards
the cooking spot, it is alleged that he was waylaid and assaulted by the
accused persons with fist blows, kicks and stones. On hearing his cries,
P.Ws.1 and 2 rushed to the spot and claimed to have witnessed the
assault. The deceased was shifted to hospital and treated, but ultimately
succumbed to death on 18.03.1994. On the basis of such allegation, the
police investigated the case and after completion of investigation, filed
charge-sheet for the offence under section 302/34 of I.P.C. against the
accused persons.
6. The prosecution in order to bring home charges examined thirteen
witnesses including two claimed eye-witnesses (P.Ws.1 and 2) and the
doctor (P.W.10). The defence plea was one of false implication,
contending that after receipt of kanya sulka, the villagers consumed
liquor and a fight broke out, as a result, the villagers assaulted each
other. One witness was examined on behalf of the defence.
7. Upon appreciation of evidence, the learned trial Court held that
the prosecution failed to establish the charge under Section 302/34 of
I.P.C., as the medical evidence indicated that death was the result of
encephalitis and brain infection, not the direct consequence of assault.
The learned trial Court, however, found that the accused persons had
indeed assaulted the deceased by fists, kicks and pelting of stones, and
accordingly convicted them under Section 324/34 of I.P.C. and
sentenced them to rigorous imprisonment for one year each. The learned
trial Court, after credible analysis, has arrived at the following findings:-
"7. It is manifestly clear from the sworn testimony of
P.Ws. 1 and 2 that while the deceased taking the fifth
fowl was proceeding towards the place where the
cooking was to be done. The deceased raised hullah
and hearing his hullah both of them going to the spot
from the place of discussion found that the accused
persons were assaulting the deceased by fist blows,
kicks and throwing stones towards him. According to
them, accused Tadingi Sashi, Tadingi Dumuri dealt
fist and kick blows on different parts of the body of
the deceased and accused Tadingi Ranju threw four
stones which hit the deceased. It is further disclosed
from their evidence that the deceased due to assault
by the accused persons fell down on the ground and
they alongwith others of their village brought the
deceased to their village on the following Saturday.
P.ws. 3 and 4 being informed by P.W.2 came from the
place of discussion to the spot. P.W.7 was present at
the place where cooking was to be done. P.W.7 on
receipt of information from P.W.2 about the assault to
the deceased by the accused persons also came to the
spot. All of them noticed that deceased was lying on
the ground sustaining injuries on his fore-head, neck,
back etc. Assertions of P.W.1 and 2 relating to assault
and infliction of injuries also find ample support from
the medical evidence on record. From the spot also
blood-stained earth and four stones were seized by
the I.O. on 8.3.94 and one of such stones was bearing
stain of blood. Such seizure also supports the story of
assault as stated by P.Ws. 1 and 2. There is absolutely
no reason why reliance will not be placed on the
direct evidence of P.Ws. 1 and 2 so far as the assault
and the infliction of injuries are concerned. It is thus
well established from the direct testimony of P.Ws. 1
and 2 coupled with other circumstances as discussed
above that the accused persons in furtherance of their
common intention had assaulted the deceased at the
time of occurrence by fist blows, kicks and pelting
stones towards him.
8. It is stated by D.W.1 in his evidence that on receipt
of Rs. 2,000/- towards kanya Sulka from Mandangi
Relly the people of village Bhittarpada and Bari went
away and no such incident as alleged had taken place
in his village. D.W.1 is none else but the Samudhi of
accused Tadingi Dumuri. He being an interested
person is expected to depose some thing which would
be favourable to the accused persons. But his above
assertion can never be relied upon in view of my
finding that the accused persons in furtherance of
their common intention had assaulted the deceased by
fist blows and kicks and pelting stones towards him at
the relevant time. The evidence of D.W.1 is
accordingly discarded.
9. It has been already pointed out above that the
death of the deceased was not the direct result of
assault by the accused persons. It was also not within
their knowledge that brain matter of the deceased
would be infected through the injury to the eye. There
was no intention on their part to kill the deceased
while they were assaulting him by fist blows, kicks
and pelting stones towards him. On account of
demand for kanya Sulka from Mandangi Relly the
accused persons out of anger have assaulted the
deceased in the above manner at the time of
occurrence. In these circumstances they cannot be
held guilty U/S. 302 I.P.C. but they are found to have
committed offence U/S. 324/34 IPC.
In result, therefore, I hold the accused persons guilty
of the offence U/S. 324/34 I.P.C. and convict them
thereunder. Considering the circumstances in which
the offence was committed and its far reaching effect I
am not inclined to extend the benefits of P.O. Act to
the accused persons."
8. Ms. Samantaray, learned Amicus Curiae appearing for the
appellants, contended that even if the evidence of P.Ws.1 and 2 is taken
at its face value, the use of stones by bare hands without any sharp edge
cannot be treated as use of a deadly weapon within the meaning of
Section 324 of I.P.C. At best, the offence would fall under Section 323
of I.P.C. It was further urged that the occurrence took place more than
three decades back, the appellant No.3 has already undergone one month
of custody during trial, and he has been facing protracted litigation for
thirty years. In such circumstances, it was prayed that the sentence may
be suitably modified.
9. On a careful consideration of the evidence, this Court finds that
the testimony of P.Ws.1 and 2, corroborated by medical evidence,
establishes that the appellant No.3, along with others, did assault the
deceased. However, the medical evidence does not show any injury
caused by a deadly weapon, and the use of stones by hand in the manner
alleged does not amount to the use of a dangerous weapon or means. The
offence, therefore, is more appropriately punishable under Section
323/34 of I.P.C rather than Section 324/34 of I.P.C.
10. Considering the nature of the assault, absence of premeditation,
lack of intention to cause death, and the fact that the direct cause of death
was not the assault but encephalitis, this Court holds that the conviction
of the appellant No.3 under Section 324/34 of I.P.C. cannot be sustained
and is accordingly altered to one under Section 323/34 of I.P.C.
11. Coming to the question of sentence, it is noted that the appellant
No.3 has already undergone about one month of custody during the trial.
The incident occurred in 1994, more than thirty years old. The appellant
No.3 is now an aged person and has faced the trauma of criminal
proceedings for a considerable length of time. Taking into account these
mitigating circumstances, this Court is of the considered opinion that the
sentence already undergone by the appellant No.3, together with a fine
would meet the ends of justice.
12. The conviction of the appellant No.3 under Section 324/34 of
I.P.C. is set aside and altered to one under Section 323/34 of I.P.C. with
the modified sentence as indicated above. The appeal, so far as it relates
to appellant nos.1 and 2, stands abated due to their death. Accordingly,
the appellant no.3-Tadingi Ranju, is sentenced to the period already
undergone (about one month) and to pay a fine of Rs.5,000/- (Rupees
Five Thousand only), in default of payment of which, he shall undergo
further simple imprisonment for fifteen days. The fine amount to be
deposited by the appellant No.3 shall be disbursed to the wife of the
deceased in accordance with the provision under Section 357 Cr.P.C.
13. With the above modification in conviction and sentence, the
Criminal Appeal is partly allowed.
14. This Court acknowledges the effective and meaningful assistance
rendered by Ms. Upasikha Samantray, learned Amicus Curiae in this
case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/-
(Rupees seven thousand five hundred) to be paid as a token of
appreciation.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 9th September, 2025/Swarna
Designation: Senior Stenographer
Location: High Court of Orissa
