Orissa High Court
Sudhansu Sethy @ Babuli vs State Of Orissa on 9 September, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 476 of 2005
(In the matter of an application under Section 374 (2) of Criminal
Procedure Code)
Sudhansu Sethy @ Babuli ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Mr. Anshuman Ray, Advocate
For the Respondent : Ms. R.B. Dash, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 14.08.2025 :: Date of Judgment: 09.09.2025
S.S. Mishra, J. The present appeal arises out of the judgment and
order of sentence dated 29.10.2005 passed by the learned Ad-hoc
Additional Sessions Judge (FT-1), Keonjhar in S.T. Case No.64/31 of
2005/G.R. Case No.919 of 2004, whereby the learned trial Court
convicted the accused-appellant under Section 324 of the Indian Penal
Code, 1860 (hereinafter referred to as "the Code" for brevity),
sentencing him to undergo rigorous imprisonment for three years and to
pay a fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for
a further period of three months.
Prosecution Story
2. The prosecution case, as disclosed in the F.I.R., reveals that on
03.11.2004, the complainant, namely Purna Chandra Sahu of Birabarpur
Patna under Town P.S., Keonjhar, lodged a written report before the
O.I.C., Town P.S. It was alleged therein that at about 9.30 P.M. on the
said night, while the Laxmi Puja immersion procession was proceeding
towards Birabarpur Patna square, the accused, Babuli Sethy, attempted
to obstruct the trucks on the road. At that juncture, the injured, Sekharlal
Kumar Sahu, who is the brother-in-law of the complainant, questioned
the accused as to why he was detaining the trucks. The accused, in
response, abused him in filthy language and gave him a push. The
members of the procession organising committee intervened and
separated the parties, whereafter the procession continued. However, as
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soon as the procession reached the junction of the street, the accused, all
of a sudden took out an axe from an autorickshaw (Tempo) bearing
Registration No. O.R.-09-E-2468 and, with the intention to kill, dealt a
blow on the back of the head of P.W.2 (the injured), causing him to fell
down unconscious on the spot. The members of the organisers
immediately shifted the injured to the District Headquarters Hospital,
Keonjhar. On the basis of the aforesaid report, the police registered
Town P.S. Case No.224 of 2004 under Sections 341/307/294 of the
I.P.C. and, after completion of investigation, submitted charge-sheet
against the accused. The appellant faced trial on his stance of denial of
charges.
3. In support of the prosecution case, eight witnesses were examined
out of which P.W.1 was the complainant who was also an eye witness,
P.W.2 was the Victim, P.Ws.3, 4 and 5 were the independent witnesses,
who were also the eye witnesses, P.W.6 was the doctor, who treated the
victim, P.W.7 was the then I.I.C. of Ghasipura, Keonjhar, who has
Page 3 of 15
registered the case and P.W.8 was the I.O. of the case. However, the
defence did not adduce any evidence in support of its plea.
Trial Court's Analysis and Judgement
4. The learned Trial Court has meticulously dealt with the
prosecution story in para 6 of its judgement which is reproduced herein
for the convenience of ready reference:
6. The case of the prosecution strongly based on the
evidence of eye-witnesses who were present all-through
near the injured. P.W.1 is the complainant, while
corroborating the F.I.R. story he stated that the Laxmi puja
immersion procession started from N.H.-6 and proceeded
towards Birabarpur Patna. At about 9.30 P.M. when the
procession reached at Birabarpur Patna the accused
Sudhansu appeared with an axe in his hand and he dealt a
blow to the backside head of the injured. The injured fell to
the ground being unconscious and he sustained a bleeding
head injury and some other injury due to the fall .P.W.1
along with P.W.5 and others shifted the injured to the
District Headquarters Hospital. Immediately thereafter
P.W.1 reported the matter to the police by submitting a
written report vide Ext.1. According to P.W.1 during the
treatment at the hospital, it was felt necessary for further
treatment at Cuttack as the attending doctor had advised to
shift the patient to S.C.B. Medical College, Cuttack as there
was bone injury in the scalp. So the injured was shifted to
Cuttack where an immediate operation was required to be
undertaken for which the injured was admitted to a Nursing
Home as per the instruction of Dr. Srikanta Das, Associate
Professor, S.C.B. Medical College, Cuttack. After the
patient was admitted an operation was undertaken on the
Page 4 of 15
head injury. P.W.2 is the injured victim who in his evidence
stated that the accused was standing near him in the middle
of the procession and all on a sudden the accused came
from his behind and he dealt a blow on his head in the
backside by means of an axe and he could see the accused
passing through when he fell to the ground. He lost his
consciousness after the assault and then he regained his
consciousness at the Hospital.P.w.2 corroborated the
evidence of P.W.1 in all other material particulars. P.Ws 3,
4 and 5 are all present in the procession and all of them
have unanimously stated that as soon as the procession
reached Birabarpur Patna chakka the accused who was
present in the procession along with them suddenly came
from behind the injured with an axe and he dealt a blow on
the backside head of the injure. P.W.4 specifically stated
that at the relevant time he was facing to the injured and
the accused came from his behind dealt a blow and then he
fled he away from the spot after the assault. P.Ws. 3, 4 and
5 have clearly corroborated the evidence of P.Ws. 1 and 2
on the factum of assault as well as other material
particulars. During course of cross-examination by the
defence P.w.1 stated that there was previous enmity
between the accused and the injured but he disclosed that
during the course of procession when the accused caused
traffic problems by stopping the vehicles on the road the
injured disuaded him from doing so, but there was an
exchange of words between them. Subsequently they
proceeded as usual and there was no further disturbance
from the conduct of the accused who also came with the
procession till Birabarpur Patna chhaka. According to
P.W.1 for a moment at the chhaka the accused was found
absent and, after a little while he appeared from his behind
and the accused dealt the blow by the axe.P.W.1 has seen
the accused assaulting the injured. He stated that soon
after the assault the accused ran away. Nothing material
has been elicited by the defence to discredit his evidence.
Similarly, nothing was also elicited from P.W.2 by the
defence to discredit his evidence. Taken together their
evidence, prosecution proved the factum of assault by the
accused. However, during cross-examination of P.W. 3, he
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admitted that even though he was very much present he has
not seen the assault or the weapon of offence. During
cross-examination by the defence P.W.4 strongly
corroborated his evidence in chief, but to a question put by
the Court he stated that soonafter the assault he has not
seen the accused at that stage. P.w.5 in his cross-
examination stated that he was the President of the Puja
Committee and he was in the over-all charge.
In reply to a question put by the Court he stated that
while the accused was in the procession he was not holding
the axe in his hand. However, nothing was found
discrepant by the defence to discredit his evidence. P.W.6 is
the doctor who examined P.W.2 on 3.11.04 at 9.30 PM on
on a police requisition and he found two simple injuries,
one, an incised looking wound, 4 long slightly curved scalp
deep under right parietal region of head and the other
injury is a laceration of 1ª length X1/4" width skin-deep
under the bridge of the nose between two eyes. He opined
that the head injury could be possible by a weapon with a
cutting edge such as an axe. The time of injury was within
six hours from the time of his examination. He prepared his
medical report vide Ext. 2. In reply to a que vide Ext.6 by
P.w.8 as to whether the injury inflicted on the injured could
have caused his death in ordinary course, if timely
treatment would not have been provided, P.W.6 opined vide
Ext.3 that in cases of head injuries, no definite opinion
could be given as to the causing of death of a person but he
has opined that if immediate treatment could not have been
provided, the injury could have caused the death of the
injured -victim.P.W.8 is the 1.0. who took up investigation
in to the case as per the direction of P.W.7. During
investigation he examined complainant, visited the spot and
prepared the spot map vide Ext.2. He then visited the
Headquarters Hospital, issued injury requisition vide Ext.4
and he examined the injured. After that he seized a tempo
bearing registration NO.OR-09B-2468 and its R.C. Book
from the District Headquarters Hospital campus under
Ext.5 since the same was involved in the offence.
Subsequently on 11.11.04 he arrested the accused on his
Page 6 of 15
surrender before the P.S. and on the next day he forwarded
him to the Court. P.W.8 issued a query to the doctor who
examined the injured on the nature and cause of injury vide
Ext.6. During cross-examination, by the defence P.W.8
admitted that he has not examined any resident of the spot
locality and he stated that he has not noticed blood at the
spot. It was elicited by the defence that the spot according
to P.W.8 is the Municipal road.P.W.8 has not examined the
injured further after his return from the treatment at
Cuttack He could not find the weapon of offence from the
Tempo as disclosed by the witnesses and he also could not
get the weapon of offence during his investigation despite
his search for the same.P.W.8 has not seized the wearing
apparels of the injured.P.w.7 is the I.I.C. of the Town P.S.
who took charge of the investigation from P.W.8 on
29.12.04. During his part of the investigation he could not
get any clue to seize the weapon of offence.P.W.7 explained
that he did not seize the wearing apparels of the injured
since the same had been washed off by his family members
After completion of investigation he submitted charge sheet
on 4.1.05 against the accused. From the evidence of P.Ws 7
and 8 nothing is found to say that there is any defect in the
investigation process and their investigation is self-
explanatory from the exhibits. But admittedly the
investigating officer have not been able to get any clue as
to the weapon of offence used in the occurrence. It is
noticed that P.W.7 is acquainted with the case since its
inception as he has registered the case on 3.11.04 at 10.30
P.M vide Town P.S. Case No. 224/04 under Ext.1. This is
the whole evidence on record from the side of the
prosecution."
.
5. Further in para 9 of the impugned Judgement the learned Court
below while appreciating the evidence came to the conclusion that the
charge u/s 307 of the Code is although serious but the same couldn't be
proved against the present accused, and reached at the following
findings:
"9. Heard the learned counsels. As seen from the evidence
of the eye-witnesses and after going through the respective
arguments advanced by the prosecution as well as the
defence, it is seen that the prosecution has been able to
prove the factum of assault by the accused by means of an
axe as a result of which the injured sustained a bleeding
back-head injury and soon after the occurrence the injured
has been shifted to the District Headquarters Hospital,
Keonjhar and underwent a treatment The medical evidence
of P.W.6 strongly corroborate the eye-witnesses account of
Paus 1,2,4 and 5. It is a fact that the prosecution has failed
to prove the weapon of offence as the investigating agency
failed to seize the same. But both P.ws 7 and 8 have
explained the circumstances under which they could not
seize the weapon of offence. The offence U/S 307 I.P.C. is a
serious offence and it is not known why the investigating
officers could not locate the weapon of offence. Even
though it cannot be said to be a serious lapse on the part of
the investigation still it is a defect in the process of
investigation. The law is well settled that in case of a defect
in the investigation the accused does not get any benefit
since there is strong evidence of the eye-witnesses. Now
coming to the ingredients of Sec.307 1.F.C., the injuries
sustained by the injured is admittedly a simple injury and
the same has been opined by P.W.6 could be possible by
means of an axe. During course of cross-examination by
the defence PW1 has clearly stated that while the
procession was nearing the occurrence spot at Biraberpur
Patne chhaka the accused was found absent for a moment
even though he was present all along and after a little
while he came with an axe and dealt a blow on the head of
the injured from his behind This conduct of the accused has
been clearly witnessed by P.Ws 1,2,4 and 5 It is true that
P.W.4 has not seen the assault, but he has seen the accused
coming with an axe and fleeing away from the spot after
the assault Similarly, even though P.W.5 could not say the
source from which the accused get the weapon of offence,
he has seen the accused assaulting the injured by means of
an axe. P.W.5 explained that he was the President of the
Organisation and he was in overall charge of the
procession Therefore, it is but natural in his part not to
focus his attention individually on all friends as nobody
expected the accused to commit such an act. The manner of
assault and the nature of injury are such that had the
accused the intention to commit murder of the injured he
would not have caused simple injury by means of an axe,
because had he the intention to cause murder of the injured
he could atleast have caused a grievous injury as the
accused had not been obstructed or resisted by any of the
witnesses. Prosecution has failed to prove any further
treatment of the injured by any cogent medical evidence.
Therefore, prosecution has failed to prove the intention of
the accused to commit murder of the injured. Hence the
charge U/S 307 1.P.C. fails. The liability of the accused
must be limited to the act which he has committed and it
should not be extended to the consequences of another act
which the accused has not committed. The evidence on
record clearly establishes an offence by the accused U/S
324 I.P.C. As regards other charges admittedly, the
prosecution has failed to establish the same against the
accused."
6. Consequently, the learned Ad-hoc Additional Sessions Judge
(FT-1), Keonjhar in S.T. Case No.64/31 of 2005, convicted the
accused-appellant under Section 324 of the Code, sentencing him to
undergo rigorous imprisonment for three years and to pay a fine of
Rs.3,000/- (Rupees three thousand), in default to undergo rigorous
imprisonment for a further period of three months.
Aggrieved by the Judgement of conviction and Order of sentence
passed against the appellant, he has filed the present appeal.
7. Heard Mr. Anshuman Ray, learned Counsel for the appellant and
Mr. R.B. Dash, learned Additional Standing Counsel for the State.
Submissions
8. It was contended by Mr. Ray, learned Counsel for the appellant
that the three independent eye-witnesses, namely P.Ws.3, 4 and 5, have
not supported the prosecution version in material particulars, inasmuch
as none of them have stated to have seen the accused bringing out the
axe or assaulting the injured. For ready reference, the relevant portions
of their cross-examinations and answers to court questions are extracted
herein below:
P.W.3 in his cross-examination stated:
"3. The accused was also dancing with us in the
procession to the tune of music within a distance of
about 2 Mtrs. I saw P.W.2 when he started falling to
the ground and I have not seen the accused or the
weapon with which Sekhar, was assaulted or by
whom."
Similarly, P.W.4 in his cross-examination, as well as in answer to
questions put by the Court, deposed:
"2.At the relevant time the Sekhar P.W.2 was along
with his friends in the middle of the procession and I
was also present near them. I was facing Sekhar and
the accused came from my behind. I have not seen the
assault.
To Court: 3. Whether you have seen the accused
within few moments of the assault and within falling
of the injured to the ground? Ans:-No, I have not seen
the accused in that stage."
P.W.5 also made statements in the same vein during cross-
examination and in reply to questions of the Court. His deposition reads:
"To Court:
2. While the accused was in the procession he was not
holding the axe in his hand.
Cross-examination
2. I am the president of the Laxmipuja committe and I
was in over-all charge of the procession. The process-
-ion was also controlled by the police personnel. It is
not a fact that I am deposing falsehood at the instance
of P.W.2"
9. It is further submitted that even the testimony of the victim, in his
cross-examination, does not disclose anything substantial to fasten the
liability upon the accused under Section 324 of the I.P.C. or to
specifically attribute the assault to him. The relevant portion of his
evidence, reproduced for ready reference, reads as follows::
"xxx I was in the middle of the procession and the
accused was standing near me in the procession
and after a moment all on a sudden I sustained a
blow on my head in the backside and immediately I
could see the accused passing through ,then I fell to
the ground." (To be corrected)
It is also submitted that the accused have already undergone
custody for 1 month and 12 days in prison.
Analysis and Observations
10. Upon careful scrutiny of the evidence on record and the rival
submissions advanced, this Court finds that the conviction of the
appellant under Section 324 I.P.C. by the learned Trial Court cannot
sustain. The foundation of the prosecution case rests upon the allegation
that the accused assaulted the injured (P.W.2) with an axe. However, the
consistent testimony of the three independent eye-witnesses, namely
P.Ws.3, 4 and 5, does not support the allegation against the accused of
either bringing out the axe or using the same in the alleged assault. On
the contrary, each of them has categorically stated that they have not
seen the accused holding any axe or dealing the blow with such a
weapon.
11. Even the evidence of the injured himself, though suggestive of a
sudden assault from behind, does not specifically attribute the use of an
axe by the accused. He merely stated that he sustained a blow on the
backside of his head and thereafter saw the accused passing through.
This testimony, at best, establishes that the accused was present in the
procession and in proximity to the injured at the relevant time, but it
falls short of conclusively proving that the assault was committed by
use of a dangerous weapon.
12. The medical evidence adduced through P.W.6, though proving a
head injury consistent with a cutting weapon, cannot by itself establish
the involvement of the accused with an axe in the absence of credible
and reliable ocular testimony to that effect. The investigating agency
also failed to seize the alleged weapon of offence, which further
weakens the prosecution version regarding the use of a deadly weapon.
13. In view of the above, this Court is of the considered opinion that
the prosecution has failed to prove the use of an axe by the accused
beyond reasonable doubt. Nevertheless, there is sufficient material on
record to establish that the accused voluntarily caused hurt to the injured
in the course of the procession. The ingredients of Section 323 I.P.C.
stand clearly attracted inasmuch as the injured sustained bodily pain and
injury as a result of the assault attributed to the accused, though not by
means of a dangerous weapon.
Conclusion
14. Consequently, the conviction of the appellant under Section 324
I.P.C. is set aside. Instead, the appellant is held guilty and convicted for
the offence punishable under Section 323 I.P.C.
15. The occurrence in question dates back to the year 2004. It is
submitted by learned counsel for the appellant that the appellant has
already undergone one month and twelve days of imprisonment during
the course of trial and pendency of appeal. In the circumstances, it is
prayed that the appellant may not be sent back to custody and that the
sentence may be restricted to the period already undergone.
16. This Court finds merit in the aforesaid submission. Considering
the long lapse of time of about 20 years since the incident and the nature
of offence now established, the sentence of the appellant is modified to
the period he has already undergone. In addition, the appellant is
directed to pay a fine of Rs.5,000/- (Rupees five thousand), in default, to
undergo rigorous imprisonment for a period of one month. The fine,
when realized, shall be paid to the victim as compensation as per the
provisions of Section 357 Cr.P.C.
17. Accordingly, the Criminal Appeal is partly allowed.
(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: 12-Sep-2025 10:29:18
