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Orissa High Court
Bhanja @ Dhruba Ch. Tosh vs State Of Orissa .... Opposite Party on 20 April, 2026
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRREV No.611 of 2001
(In the matter of an application under Section 401 of
Cr.P.C.)
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Bhanja @ Dhruba Ch. Tosh .... Petitioner
-versus-
State of Orissa .... Opposite Party
For Petitioner : Mr. S. Mohanty, Advocate
For Opposite Party : Mr. C. R. Swain, AGA
CORAM:
JUSTICE V. NARASINGH
DATE OF FINAL HEARING : 15.04.2026
DATE OF JUDGMENT : 20.04.2026
V. Narasingh, J. Heard learned counsel for the
Petitioner and learned counsel for the State.
1. This Criminal Revision has been filed assailing
the Judgment dated 21.07.2001 passed by the learned
Sessions Judge, Cuttack in Criminal Appeal No. 11 of
1999, affirming the conviction qua the Petitioner dated
26.09.1998 passed by the learned Asst. Sessions
Judge, Athgarh, Cuttack in Sessions Trial No. 146 of
1997 under Sections 324/325/307 of the I.P.C., and
imposing a sentence to undergo R.I. for three years
and to pay a fine of Rs. 3000/-, in default to undergo
R.I. for one year under Section 307 I.P.C., and to
undergo R.I. for one year and to pay a fine of Rs.
1000/-, in default to undergo R.I. for six months under
Section 324 I.P.C. He was further directed to pay a
fine of Rs. 1000/- under Section 323 I.P.C., in default
to undergo R.I. for six months, with a direction that
the sentences shall run concurrently.
2. The case of the prosecution, in brief, is that
Narayan Jena was running a sweet shop at Bidharpur
Chhak and was staying there. On 23.09.1994, his son
Niranjan Jena got information from his servants
managing the shop, namely Bipin Barik and Gobinda
Barik, that his father is assaulted by the accused
Bhajaman Tosh, his wife, and two sons by means of a
Farsa in the morning. Accordingly, Niranjan came to
the spot, shifted his father to Maniabandha Hospital
with injuries, and reported the matter at Maniabandha
Outpost and after completion of the investigation,
chargesheet was filed under Sections 324/325/307 of
the I.P.C.
3. The plea of the petitioner was of complete
denial and false implication.
4. To bring home the charge, the prosecution
examined 8 witnesses. The evidence of P.W.2, the
injured, and P.Ws. 4 and 5, the ocular witnesses,
weighed with the learned Trial Court in recording
conviction of the Petitioner. The learned Trial Court
also took into account the evidence of P.W.3, the
Doctor, who proved the injury report (Ext. 2), and that
of P.W.8, the I.O. Several documents were exhibited
on behalf of the prosecution and marked as Exts. 1 to
4/1.
The defence examined one witness and no
document was exhibited.
5. On going through the evidence and materials on
record, the learned Trial Court convicted the Petitioner
under Sections 307, 325 and 324 of the I.P.C. and
awarded sentence, as noted. The highest sentence in
respect of Section 307 I.P.C. was for a period of three
years, and the substantive sentences in respect of the
other offences under Sections 324 and 325 I.P.C. were
directed to run concurrently.
The matter being carried in appeal, the Appellate
Court, on analysis of the evidence adduced, did not
find any cogent reason to interfere with the judgment
of conviction as well as the sentence imposed and
dismissed the appeal.
6. Learned counsel for the Petitioner submits that
the approach of the learned Court is ex facie perverse
in finding the Petitioner guilty, inter alia, under Section
307 of the I.P.C. It is submitted that the appreciation
of evidence has been done in a mechanical manner so
as to fasten the Petitioner with the liability of
committing an offence under Section 307 I.P.C., and
therefore the matter merits consideration.
7. Such submission is opposed by the learned
counsel for the State.
8. For the limited purpose of testing the
submission of perverse appreciation, this Court
perused the evidence on record of P.W.2.
9. Taking into account such evidence, coupled with
the medical report relating to the grievous injury,
which is admittedly not on a vital part, this Court finds
force in the submission of the learned counsel for the
Petitioner that the conviction merits alteration from
one under Section 307 I.P.C. to Section 326 I.P.C.
10. It is stated at the Bar that the Petitioner, who is
aged about 65 years and is on bail, has suffered
incarceration for about 9 months and is suffering from
age relating ailments. There is nothing on record to
indicate that during the currency of bail he has
misused the trust reposed in him, and referring to the
same, learned counsel for the Petitioner pleads for
leniency.
11. Learned counsel for the State, on the other
hand, submits that considering, the prayer of leniency
would amount to misplaced sympathy causing
injustice to cause of the injured- victim. And, hence
ought not to be entertained.
12. Taking into account the rival submissions, the
age of the Petitioner being 65 years and his
subsequent conduct, this Court, while altering the
conviction, confines the sentence to the period of
incarceration already undergone.
13. The Criminal Revision, along with pending I.As,
accordingly stand disposed of.
14. Bail bond(s) stand cancelled and sureties are
discharged.
(V. Narasingh)
Judge
Orissa High Court, Cuttack,
Dated the 20th April, 2026/Jina
Location: High Court of Orissa
