Bishnu Sahu vs State Of Orissa
2026 Latest Caselaw 2501 Ori

Orissa High Court

Bishnu Sahu vs State Of Orissa on 17 March, 2026

        THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLA No. 38 of 2009

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


1. Bishnu Sahu
2. Lingaraj Sahu
3. Tulsi Sahu
4. Tejraj Sahu
5. Bhajaraj @ Bharaj Sahu      .......                      Appellants
                                -Versus-

State of Orissa                .......                     Respondent

For the Appellants : Mr. Pritam Kumar Malllik, Advocate

For the Respondent : Mr. A.K. Apat, Addl. Govt. Advocate

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 26.02.2026 : Date of Judgment: 17.03.2026

S.S. Mishra, J. The present appeal has been preferred by the

convicts assailing the judgment of conviction and order of sentence

dated 27.12.2008 passed by the learned Additional Sessions Judge

(F.T.C.), Patnagarh in Sessions Case No. 68/15 of 2008 (Arising out

of G.R.354 of 2006 of the Court of S.D.J.M., Patnagarh), whereby the

learned Trial Court, while acquitting the accused persons of the charges under Sections 147, 148, 307 and 294 read with Section 149

of the Indian Penal Code, convicted accused-appellant No.3 for the

offence punishable under Section 323 IPC and all the accused persons

for the offence under Section 341 read with Section 149 IPC,

sentencing accused-appellant No.3 to undergo simple imprisonment

for two months with a fine of Rs.1,000/- (in default, to undergo S.I.

for fifteen days) and directing all the convicts to pay a fine of

Rs.500/- each for the offence under Section 341/149 IPC (in default,

to undergo S.I. for ten days).

2. While the appeal was pending, this Court has been apprised

that appellant no.1-Bishnu Sahu has expired. Therefore, vide order

dated 26.02.2026, the appeal against the deceased appellant No.1

stood abated, in the absence of any motion on behalf, the legal heirs

or next friend of the deceased appellant U/S.394 of Cr.P.C. Therefore,

the present appeal is confined to appellant Nos.2, 3, 4 and 5.

3. Heard Mr. Pritam Kumar Mallick, learned Counsel for the

appellants and Mr. A.K. Apat, learned Additional Government

Advocate appearing for the respondent-State.

4. The factual matrix of the prosecution case, as unfolded in the

First Information Report lodged by Madan Behera (P.W.10) on

24.10.2006, is that on 15.10.2006, a Sunday, an altercation arose in

front of the informant's house when his brother, Banshidhar Behera,

questioned accused Bishnu Sahu regarding damage caused to his

paddy crop by the latter's buffaloes. It is alleged that, in response

thereto, all the accused persons, forming an unlawful assembly,

suddenly assaulted Banshidhar Behera with thengas, as a result of

which he sustained injuries on his person. Hearing the alarm raised by

his brother, the informant rushed to the spot, whereupon the accused

persons allegedly tied him with a rope. Thereafter, the witnesses

present at the spot provided water to the injured Banshidhar Behera

and shifted him first to his house and subsequently to the Patnagarh

Hospital for medical treatment. Upon receipt of the written report, the

Officer-in-Charge of Patnagarh Police Station registered Patnagarh

P.S. Case No. 100 dated 24.10.2006 and took up investigation. During

investigation, he examined the informant, the injured, and other

witnesses, sent the injured for medical examination, visited the spot,

seized the alleged weapon of offence, a blood-stained dhoti and a

rope, arrested the accused persons, and upon completion of

investigation, submitted charge-sheet against them.

Based on the materials placed on record, the accused persons

were charged before the learned Trial Court for offences punishable

under Sections 147, 148, 341, 323, 294, 307 read with Section 149 of

the Indian Penal Code, for allegedly forming an unlawful assembly

and attempting to commit the murder of Banshidhar Behera.

5. On their stance of complete denial of the charges and claim for

trial; the accused-appellants were put to trial.

6. To substantiate the charges, the prosecution examined thirteen

witnesses in total. Among them, P.W.10 is the informant, P.W.12 was

the injured witness, and P.Ws.1, 2, 3, 7 and 9 were the eyewitnesses

to the occurrence. P.W.8 was a post-occurrence witness, while

P.W.11 was the scribe of the F.I.R. P.Ws.4 and 5 were witnesses to

the different seizures effected during investigation. P.W.6 was the

treating doctor, and P.W.13 was the Investigating Officer.

The defence did not adduce any evidence. The prosecution, in

support of its case, also relied upon certain documentary evidence

which were marked as Exts.1 to 7, and the Material Objects marked

as M.O. I, II and III.

7. The learned Trial Court has effectively addressed the issue of

delay in lodging the F.I.R. in paragraph 7 of the impugned judgment.

Upon a careful appreciation of the evidence on record, the learned

Trial Court dealt with the said aspect by assigning cogent reasons and

by placing reliance on relevant precedents. After an elaborate analysis

of the oral and documentary evidence adduced by the prosecution, the

learned Trial Court proceeded to record its findings, which are

extracted below:

"13. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 141, if it can held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same. the knowledge that is object which is being pursued agreement as to how it is to be achieved and not is the common object of the assembly. The object generally to be gathered from the act which the person commits and the result therefrom.

The interference of p.w.10 resulted in development of the knowledge of the accused persons to commit offence of wrongful restraint In view of the fact the accused persons have commit ed an offence U/s 341/149 I.P.C.

I have already observed that the accused Tulsi caused the bleeding injury on he head of p.w.12 by means of thenga and the doctor p.w.6 only found the laceration of 1cm.x 1/2cmx skin depth which

simple in nature and in his cross/examination P.W.6 has also stated that the injuries are not sufficient in the ordinary course of nature to cause death. prosecution has proved through the 1.O. P.W.13 and P.W.4 the M.O.II thenga the weapon of offence was used by accused Tulsi at the time of assault. In pursuance to quarrying of the 1.0. the doctor p.w.6 examined the weapon of offence M.O.II and reported vide his report Ext.5 that the injury noticed in the injury report were possible by this weapon. Even if accused Tulsi is the author of the head injury but it is to be seen whether by such assault he had intended to commit the murder of P.W.12.

14. To justify a conviction u/s 307/34 I..C. all the elements of murder must exist. Except that he act of death. It is essential to establish the nature of the act done, the intention or knowledge and the circumstances under which the act was done. Although the nature of the injury actually caused might have been considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may, in some causes be ascertained even without any reference. An attempt is as intended, but unfinished, crime, intending, but failing, to effect its commission. Specific intention to commit the crime of murder is a necessary prerequisite of this section. In so far as the offence relates to an attempt, the overt act must necessarily be left unaccomplished because otherwise the prosecution would be for the completed crime. Apart from the necessary, mens rea, actus reus must be more than a preliminary preparation. The attempt must have gone so far that it would result in the commission of the crime intended unless frustrated by the intervention of extraneous circumstances, independent of the will of the accused. So, in order to constitute an offence under this section, it must be established that the offender did an act and in doing that act, was actuated by an intention to go further and to achieve a definite end, which is a specific crime, namely murder. It is sufficient in law, if there is present an intention coupled with some overt act in execution thereof. In the instant case the accused Tulsi was not aware about the nature of Gandagola of his father with p.w.12. and he assaulted at the spur of the moment when his father and p.w.2 were quarreling in connection with damage of paddy by their cows. He did not apply any severe force on the head of p.w.2 which appears from the length and breadth of the injury. The injury did not go beneath the skin. the accused persons were 5 in numbers. And had sufficient opportunity to finish p.w.12 but without doing so only one of them caused a simple injury on

the head of p.w.12. Although on a vital part. The circumstances proved do not establish that the accused Tulsi with an intention to commit murder caused such injury which would be resulted in the death of p.w. 12. In such circumstances I am of the view that the prosecution has signally failed to prove the ingredients of sec.307 I.P.C. but the overt act of the accused Tulsi by assaulting by means of merha which is not a dangerous sharp cutting weapon caused voluntarily simple hurt where by he is liable for the offence u/s 323 I.P.C. for his individual act.

15. For the aforesaid reasoning I am inclined to hold that the prosecution has failed to prove the charges U/s 147/148/307/294/149 I.P.C. against the accused persons beyond all reasonable doubt and found the accused Tulsi Sahu guilty of the offence u/s 323 I.P.C. and all the accused persons for the offence punishable U/s 341/149 1.Р.С. In the result, I hold the accused Tulsi Sahu guilty of the offence punishable U/s 323 I.P.C. and all accused persons are guilty of the offences punishable U/s 341/149 I.P.C. and convict them there under."

Being aggrieved by the Judgment of Conviction and Order of

Sentence passed by the learned Trial Court, the present appeal has

been preferred.

8. However, in so far as the acquittal of the appellants for the

offences under Sections 147, 148, 307 and 294 read with Section 149

of the Indian Penal Code is concerned, no appeal has been preferred

by the State challenging the said findings of the learned Trial Court.

In view of the absence of any appeal against the order of acquittal on

those counts, this Court does not consider it necessary to examine or

reopen the said issues.

9. At this stage, Mr. Mallick, learned counsel appearing for the

appellants, without venturing into the merits of the conviction,

confined his submissions to the question of sentence. He submitted

that the occurrence in question is of the year 2006 and the appeal has

remained pending since the year 2009. Thus, a considerable period

has elapsed since the date of the incident. Learned counsel further

submitted that, in the meantime accused-appellant no.1 has already

passed away, accused-appellant Nos. 2 and 3 have already undergone

a period of fifteen days in custody, while accused-appellant Nos. 4

and 5 have undergone five days in custody during the proceedings. It

is further contended that the appellants are poor and rustic villagers

having no criminal antecedents and are dependent upon daily wage

labour work for their livelihood.

Learned counsel also submitted that the learned Trial Court,

while imposing sentence, had considered the absence of criminal

antecedents, the relationship between the parties and the principles

underlying reformative sentencing policy, and accordingly adopted a

lenient approach, as reflected in the order of sentence reproduced

below:

"Heard the convicts, their learned counsel and the learned Addl.P.P. on the question of sentence. The learned counsel for the accused persons contend that the accused persons are poor, rustic villages having no criminal antecedents and entire family depend upon the labour work. Per contra the Addl. P.P. submits for appropriate sentence. Admittedly there is no criminals antecedent against the convicts. Considering the absence of criminals antecedents and relationship of the convict with the informant injured and reformative sentencing policy, I am inclined to take lenient view on the question of imposing sentences. Convict Tulsi Sahu is sentenced to undergo S.I. for two months with a fine of Rs.1000/- i.d. to undergo further S.1. for 15 days for the offence punishable U/s 323 I.P.C. and all convicts including Tulsi Sahu are sentenced to pay of fine of Rs.500/- each for the offence U/s 341/149 I.P.C. i.d. to undergo further S.I. for 10 days. The period of undergone during investigation be set off against the substantive sentence passed against the convict Tulsi Sahu. In the event the fine amount is realized a sum of Rs.1000/- be paid to the injured. P.W.12 and Rs.1000/- to P.W.10 Madan Behera."

Placing reliance on the aforesaid circumstances, learned

counsel for the appellants submitted that the incident in question

relates to the year 2006 and that the present appeal has been pending

since the year 2009. Thus, a considerable period, nearly two decades

has elapsed since the date of occurrence. It is further submitted that

during this prolonged passage of time, the appellants have continued

to remain law-abiding citizens and there is nothing on record to

suggest the existence of any criminal antecedents either prior to or

after the present occurrence. According to the learned counsel, the

appellants are simple and rustic villagers who primarily depend upon

manual labour for their livelihood, and the conviction arising out of a

village dispute that occurred long ago should not result in their

incarceration at this distant point of time.

10, Learned counsel, further submitted that some of the appellants

had already undergone a period of custody during the investigation

and trial. In such circumstances, directing them to undergo further

custodial sentence after such a prolonged lapse of time would not

advance the ends of justice. Rather, it would cause undue hardship not

only to the appellants but also to their families who are dependent

upon them for their subsistence. It is argued that the object of criminal

jurisprudence, particularly in cases involving minor offences arising

out of village altercations, is not merely punitive but also reformative.

Therefore, the sentencing process must consider the surrounding

circumstances, the character of the offenders, the nature of the

offence, and the time that has elapsed since the incident.

Accordingly, it is prayed that this Court may exercise its

discretion in favour of the appellants by extending to them the benefit

of probation under Section 4 of the Probation of Offenders Act.

11. Regard being had to the societal position of the appellants,

clean antecedents and the fact that the incident had taken place in the

year 2008, I am of the considered view that the appellants are entitled

to the benefit of the Probation of Offenders Act and Section 360 of

Cr.P.C. Additionally, the case of the appellants are also covered by

ratio of the judgment of this Court in the case of Pathani Parida &

another vs. Abhaya Kumar Jagdevmohapatra1 and Dhani @

Dhaneswar Sahu vs. State of Orissa2.

Additionally, the present case is also squarely covered by the

judgment of this Court in Sk. Wahed Ali Vs. State of Orissa3,

wherein, while dealing with an offence of a similar nature, the Court

had extended the benefit of the Probation of Offenders Act, 1958 to

the appellant, who had been convicted under Section 323 of the

Indian Penal Code.

12. The ratio of the aforesaid decisions, emphasizes the reformative

approach of criminal jurisprudence in cases involving personal

2012 (Supp-II) OLR 469

2007 (Supp.II) OLR 250

AIROnline 2025 ORI 280

disputes and absence of criminal antecedents, is fully applicable to the

facts and circumstances of the present case.

13. In such view of the matter, the present Criminal Appeal in so

far as the conviction is concerned is turned down. But instead of

sentencing the appellants to suffer imprisonment, this Court directs

the appellants to be released under Section 4 of the Probation of

Offenders Act for a period of one month on their executing bond of

Rs.1,000/- (Rupees One Thousand) each within one month with one

surety each for the like amount to appear and receive the sentence

when called upon during such period and in the meantime, the

appellants shall keep peace and good behavior and they shall remain

under the supervision of the concerned Probation Officer during the

aforementioned period of one month.

14. Accordingly, the CRLA is partly allowed.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack.

Dated the 17th of March, 2026/ Subhasis Mohanty

Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack.