THE HIGH COURT OF ORISSA AT CUTTACK

CRA No. 143 of 1997

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

Gandaram Behera ……. Appellant

-Versus-

State of Orissa ……. Respondent

For the Appellant : Mr. H.S. Mishra,

Advocate

For the Respondent : Mr. Jateswar Naik, AGA

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 15.01.2026 : Date of Judgment: 19.02.2026

S.S. Mishra, J. The present criminal appeal filed by the appellant

under Section 374 (2) of Cr.P.C. is directed against the judgment of

conviction and order of sentence dated 30.06.1997 passed by the learned

Additional Sessions Judge, Titilagarh in Sessions Case No. 24/11 of

1995, whereby the learned trial Court has convicted the accused-

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appellant for the offence punishable under Section 307 of the I.P.C. and,

accordingly, sentenced him to undergo R.I. for two years and to pay a

fine of Rs.1,000/-, in default to undergo R.I. for three months.

2. Heard Mr. H.S. Mishra, learned counsel for the appellant and Mr.

Jateswar Naik, learned Addl. Government Advocate for the State.

3. The prosecution story as per the FIR is that on 12.09.1994 at about

8.30 A.M. at Sahupada of village Bangomunda the present accused

appellant assaulted the elder brother and mother of the informant with

tabli causing bleeding injuries on their person.

4. On the basis of the written report of the informant, Bangomuda

P.S. Case No.37 dated 12.09.1994 was registered and investigation was

conducted and charge sheet was filed. Since the accused took a stance of

denial, hence he was put to trial after the charges were framed under

Section 307 IPC.

5. The prosecution in order to bring home charges examined as many

as ten witnesses. Out of which, P.W.1 was the informant, P.Ws.2 and 3

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were the injured victim, P.Ws.4 and 5 were the co-villagers and eye

witnesses to the occurrence. P.W.6 was a witness to the leading to

discovery. P.Ws.7 and 8 were the witness to the seizure of blood stained

clothes. P.W.9 was the doctor, who examined the injured persons and

P.W.10 was the Investigating Officer, who investigated the present case.

6. The learned trial Court analysed the evidence on record in detail

and found the sole appellant guilty of offence under section 307 IPC and

accordingly sentenced him to undergo R.I. for two years and to pay a

fine of Rs.1000/-, in default to undergo R.I. for three months.

7. Aggrieved by the aforementioned judgment and order of

conviction, the appellant has filed the present appeal.

8. Mr. Mishra, learned counsel for the appellant has taken me to the

evidence of the injured witnesses, i.e. P.Ws.2 and 3 and juxtaposed with

the evidence of the eye witnesses, particularly the informant (P.W.1) and

the evidence of the doctor (P.W.9), who examined both the injured

P.Ws.2 and 3. He has pointed out the inherent contradictions and

discrepancies in the evidence. He has also taken me to the impugned

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judgment, whereby the defence plea raised by the accused through the

defence witness has not been appreciated well by the learned trial court.

9. I have carefully gone through the impugned judgment, where the

trial court has given right attention to defence plea, which is reflecting in

paragraphs-11, 12 and 13 of the judgment, which reads thus:-

11) Learned defence counsel opened his armoury releasing the

first arrow at the prosecution submitting that the discrepancy

in the evidence as to who was assaulted after whom is enough

to cloud down the prosecution case. On the assault the

evidence of P.Ws..1, 2, 3 and 5 is consistent. Only evidence of

P.W.4-in self contradictory on the point when in his further

cross-examination after about one year and four months of his

previous cross-examination he has breathed that P.W.3 was

first assaulted and thereafter P.W.2, May be the time gap has

resulted in such self contradictory evidence and for that it is

taken not that serious to wash away the entire credibility of

P.W.4. The second arrow was on non-cutting of the saree of

P.W.3 due to assault. Injury on P.W.3 was over her back

between the scapular region. It is the evidence of P.W.3 that

her saree had covered her shoulder. At the same time it is the

evidence of P.W.4 that the edge of tabli did not touch the saree

of P.W.3. There is no specific evidence that saree of P.W.3 was

cut due to tabli blow and evidence of P.W.3 that her saree had

covered her shoulders positively does not lead to the

conclusion that it must have been cut due to assault on her as

because there was possibility of displacement of the saree when

she leaned over P.W.2 to lift him coming to his rescue, The

third arrow is on seizure of M.O.I,, the weapon of offence from

open places. It is in the evidence of P.W.6 that the cow-shed

from where the M.0.I was recovered was adjacent to public

road and open on all sides. But at the same time it is also his

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evidence that M.O.I was inside the broken wall about 6" under

the earth. Since it was not possible to locate M.O.I concealed

inside the wall even if wall was of open cow-shed and adjacent

to public road no adverse inference is to be drawn. Learned

defence counsel released his fourth arrow submitting that non-

sending of the seized blood stained clothes and weapon of

offence for chemical examination is detrimental to the case of

the prosecution. It would have been better to get the seized

articles examined through chemical examiner but non-

examination of the same has not diluted the prosecution case

when sustaining injuries by the injured persons has not been

dispute and non-examination of the seized blood stained

weapon of offence by the chemical examiner maximum can be

taken as carelessness of the I.O. and little irregularity in the

investigation not sufficient enough to throw out the prosecution

case.

Next the learned defence counsel urged not to accept the

prosecution case submitting that no reason to assault P.Ws.2

and 3 has been floated by the prosecution. I am afraid the

learned defence counsel is not correct in his contention when it

is in the evidence of P.Ws.1, 2 and 3 that minutes before the

alleged assault there was quarrel between P.W.3 and the

accused, his wife and his sister and that is the reason that

might have tempted the accused to commit the alleged overt

act.

Lastly the learned counsel for the accused highlighting

the discrepancies in the evidence of P.Ws on duration of P.W.2

and 3 remaining unconscious on their shifting to hospital on

their treatment at Khariar Mission Hospital and contradiction

with their statements recorded U/S 161 Cr.P.C. urged to

disbelieve the case of the prosecution. The discrepancies on the

point points mentioned as above pointed out are considered

very minor not powerful enough to shatter the credibility of

P.Ws 1 to 5. P. W.2 when claimed to have stated before the I.O.

that when the accused was trying to deal another blow his

mother covered him of leaning over him and this accused dealt

one tabli blow on her back. Such claim has been denied by the

I.O. P.W.10. But on going through the statement of the P.W.2

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recorded U/S.161 Cr.P.C. only omission of the accused trying

to give second blow on P.W.2 is noticed and for that in true

sense there is no contradiction in the evidence of P.W.2 and his

statement recorded by the I.O. When P.W.3 has claimed to

have stated before the I.O. that accused dragged out the tabli

from her back putting his leg on her waist the I.O. P.W.10 has

denied such claim. But this contradiction does not shake her

credibility it being very negligible not touching very core of her

evidence. Se none of the contentions is of the learned defence

counsel is tenable.

12. Before drawing to conclusion we are left with the

evidence of the sole defence witness. D.W.1 is Bagha Sahu @

Sa to whom name P.W.3 has claimed to have gone at the time

of alleged offence. It is his evidence that on the fateful day also

the day before the accused was absent from his house going to

Barla about 50 Kms. away to whose house he had been to

collect cost of molasses. Can it be believed that the accused

was absent sold molasses. Can it be believed that the accused

was absent from his house on the previous day of the

occurrence which was Nuakhai day, a festive of the western

Orissa on which day all the family members get united to

celebrate and when it is the evidence of D.W.1 that when he

met the accused thereafter he did not ask for money not paid

till (not clear). It is further in his evidence that at the fateful

hour P.W.3 was quarrelling with the wife of the accused, there

was tussle between the two and P.W.3 fell on the road

sustaining bleeding injury coming in contact against a sharp

stone and P.W.2 also sustained injury likewise. Inconsistency

has been crept into his evidence when it is also his evidence

that by the time he came the occurrence was already over and

that day from his para people he came to know that accused

had assaulted P.W.2 and 3 for which a case was started

against him. Interestingly he has admitted to have deposed as

tutored by the accused. So it is considered very much unsafe to

accept the evidence of this defence witness of gospel truth. And

that being so the defence plea falls to the ground.

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13. In the circumstances, from the trustworthy evidence of

all the P.Ws it is concluded that the prosecution has well

succeeded beyond all reasonable doubts in establishing that on

12.9.94 at about 8.30 A.M. at village Bangomunda accused

attempted to commit murder of P.Ws.2 and 3 assaulting them

by means of tabli, a sharp cutting weapon causing bleeding

injuries on their persons, injury on P.W.3 of alarm size and

grievous in nature, and sufficient to cause death if not

immediately medically attended to, the assault being on the

head of P.W.2 and back of P.W.3.”

10. The State Counsel, on the other hand, has put forth his case to

defend the impugned judgment and relied upon the evidence of the

injured persons, i.e. P.Ws.2 and 3 and the doctor, P.W.9.

11. I have meticulously gone through the materials on record and also

considered the submissions made by both the counsels. In the light of the

submissions made by learned counsels for the parties, I have analyzed

the evidence of the crucial witnesses examined by the prosecution to

bring home its case.

12. P.W.1 was the informant in the present case. He has deposed

before the court that on 12.09.1994 at 8.30 a.m. in front of the house of

one Bagha Sahu the incident had happened. The appellant, his wife and

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his sister were abusing the mother of this witness in filthy language.

Coming to know about the incident from a friend, this witness came to

the spot and took his mother to their house. When he was taking his

mother to his house, the appellant and his wife chased them to assault. At

that time, his brother Dhoba Sahu (P.W.2) was returning from the tank

after taking bath. On arrival of his brother (P.W.2) at the spot forbade

both parties including the informant and their mother to quarrel. Both the

appellant and his wife went to their house. When this witness, his mother

and brother were standing and discussing in front of the door of one

Gopabandhu Sahu, the accused/appellant came from back side of his

brother (P.W.2) and dealt a blow by a Tabli on his head. Receiving the

blow, his brother (P.W.2) fell down on the ground and blood started

oozing from his head profusely. Seeing his brother injured, mother of

this witness went to save rushed him and at that time the accused dealt a

tabli blow on the back of his mother (P.W.3). P.W.3 after receiving

serious injury on her back fell down and became senseless. At that point

of time, the wife of the appellant and the other family members came

and took away the accused/appellant from the spot. Immediately

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thereafter the villagers had taken his brother (P.W.2) and mother (P.W.3)

to Bangomunda hospital. This witness went to Bongamunda Police

Station and lodged the FIR. The FIR is Exhibit-1 and this witness has

also identified the signature in the FIR as Ext.1/1. This witness was not

only the informant but also an eye witness to the occurrence.

P.W.2, Dhoba Sahu, who is the brother of the informant, was one

of the injured in the present case. He has narrated the incident in similar

fashion as that of P.W.1 and he has specifically deposed that the present

appellant came from the back side and dealt a blow on his head on the

right side and after receiving the blow, he fell down on the ground

sustaining bleeding injury. When the appellant was trying to dealt

another blow, his mother (P.W.3) covered him by leaning over him and

then the appellant gave a tabli blow on the back side of his mother. This

witness regained his sense at Bangomunda hospital. He also deposed that

after receiving treatment at Bangomunda hospital, they were taken to

Khariar Mission Hospital for treatment and he remained there as an

indoor patient for thirteen days and his mother (P.W.3) remained for

Page 10 of 20

twenty three days. In the cross examination, although he has not created

any dent in narration of the incident, but has only stated that when the

incident took place about 100 people were there. Much could not be

elucidated by the defence from the said witness to doubt his version. The

suggestion made by the defence that he received the injury because he

fell down as his mother (P.W.3) and brother (P.W.1) were quarreling

with the accused’s wife and his sister has been denied by him.

P.W.3 is another injured, who is the mother of P.Ws.1 and 2. She

has also narrated the incident in minute details. She has stated that the

appellant came from the back and suddenly dealt a blow on the head of

his son (P.W.2) by means of a Tabli and sustaining bleeding injury he

fell down on the ground. When she leaned to cover his injured son, the

appellant dealt a tabli blow on her back and dragged the tabli putting his

leg on her waist and she lost her senses and she only regained the senses

in the hospital.

The version of the injured witnesses and eye witnesses stood

corroborated with the evidence of the doctor (P.W.9), who deposed that

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on 12.09.1994 he examined P.Ws.2 and 3 and found the following

injuries:-

P.W.3 - “(1) Incised wound with severe bleeding over

the back between scapular region. Size of the injury 7” x 2

½” x 2 ½”.

The injury was grievous in nature, inflicted by sharp

cutting weapon. Age of injury was 1 to 2 hours at the time of

my examination. Time of examination- 12.9.94- 9 A.M.

P.W.2- “Incised wound with bleeding over the centre

of the head. Size of the wound 3” x ½” x 1/3”

The injury was simple in nature inflicted by sharp

cutting weapon. Age of injury with 1 to 2 hours.”

In paragraph-3 of his examination in chief, P.W.9 has stated that

“I had referred injured Laxmi Sahu to Sub-Divisional Hospital,

Titlagarh for her further treatment. But the relatives of the injured Laxmi

Sahu took her to Khariar Mission Hospital for treatment.”

The defence cross examined the said witness at length to create a

dent to the prosecution version to the extent that the injured were not

treated in Khariar Mission Hospital. A specific query was put to the said

witness regarding his referral of the injured to Sub-Divisional Hospital,

Titilagarh. The defence tried to encash this lacuna to say that in fact the

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injured were not treated in Khariar Mission Hospital. However, in

paragraph-3 of the evidence in chief, this witness amply made clear that

though he referred the injured to be treated in Sub-Divisional Hospital,

Titilagarh, but the relatives of the injured had taken the injured to

Khariar Mission Hospital.

P.Ws.4 and 5 were the two independent eye witnesses. P.W.4 in

his testimony has stated that on 12.09.1994 at about 8.00 a.m. in front of

the house of one Gopa Sahu (not examined) he found P.Ws.1, 2 and 3

were engaged in a heated argument with the appellant and his wife. At

that time, the appellant came from his house armed with a tabli and dealt

a blow in the head of P.W.2. Receiving the blow on the head, P.W.2 fell

down on the ground with profusely bleeding. When his mother tried to

save him, the appellant gave a blow in the same tabli to P.W.3, the

mother of P.W.2. In paragraph-3 of the examination in chief, he has very

specifically stated as under:-

“3. The quarrel between wife of this accused and mother

of Dhoba Sahu took place in front of the house of

Gopabandhu. Just in front of the house of Gopabandhu

when Dhoba Sahu, Kishore and laxmi Sahu were about to

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got their house this accused came and dealt tabli blow on

the head of Dhoba Sahu. Many persons of out village

were present and have seen the occurrence. Talsi Sahu,

Jugal Sahu, Tapi Sa and may others were present.”

Similarly, P.W.5 also narrated the incident in a great detail drawing

corroboration with the evidence of all other witnesses. These two

witnesses are the independent witnesses, those who are the villagers and

direct witnessed to the occurrence. The defence has cross examined these

witnesses in extenso, but could not derive any advantage from their cross

examination.

P.Ws.6 and 7 were the seizure witnesses. P.W.6 deposed that after

the appellant was arrested, he disclosed that he had kept the tabli in the

broken wall of his cowshed and told that he would show the same. The

statement given by the appellant was reduced down in writing by the

police officers and thereafter the appellant led the police along with the

said witness and one Tapi Sahu to the place, where he kept the tabli and

the tabli was recovered from there. On the basis of the evidence of P.W.6

the prosecution has employed Section 27 of the Evidence Act, as the

disclosure of the accused led to the recovery of weapon of offence.

Page 14 of 20

P.W.7 was another seizure witness, who has witnessed to the

seizure of the wearing apparels of the injured, accused and other seized

items.

P.W.10 was the I.O. of the case who has also supported the

version of other eye witnesses. He deposed that M.O.I, the tabli was

recovered in presence of P.W.6 on the basis of the disclosure made by

the accused appellant. The defence cross examined this witness

extensively. The following part of the evidence of the I.O. is relevant to

be reproduced below:-

“I had kept the tabli wrapped in paper till its dispatch to the

court. When I seized the tabli M.O.1 it was stained with blood.

Since I did not receive the X-ray plates of the injured, to get

opinion of the doctor regarding injury and their nature. I did

not send the tabli to the doctor for his examination and

opinion. It is not a fact that the tabli was not at all recovered

and for that I did not send it to the doctor. It is not a fact that

this M.O.1 was not send to the doctor for his examination and

opinion. Since the tabli was sent at a late stage to the doctor

for his opinion and examination, I did not send it for chemical

examination as the slight blood stain that was there might

have deteriorated by then. It is not a fact that these M.Os

including the blood stained cloth were not at all in existence. I

had not send them for chemical examination. The wearing

saree of Laxmi Sahu was not blood stained. In the seizure list

I have mentioned that the weapon of offence i.e. the tabli was

concealed in the cow shed wall and in the C.D. I have

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mentioned the wall of the cow shed which was a broken one.

In the seizure list I have mentioned on the wall The handle of

the tabli was attached to the tabli and was kept on the wall in

a concealed condition. It is not a fact that seizure witness

Tapi sahu had not signed in the seizure list. It is not a fact that

I have not read over the contents of the seizure list to the

witness Jugal Sa. The doctor of Sindhekala PHC was attached

to Bangomunda PHC on that day. On 12.9.94 the doctor of

Bangomunda PHC was absent. I have not exam any doctor or

staff of Mission hospital, Khariar in connection with this

case.”

13. On the basis of the aforementioned depositions made by the I.O.,

the defence attempted to argue that non-examination of the doctor of

Khariar Mission Hospital where the injured were treated is fatal to the

prosecution and the chain of sequence of events has broken there. It is

also contended by the defence that since the weapon of offence was not

sent for chemical examination though there was blood stain and it was

not even shown to the doctor. The x-ray plates of the injured and bed

head tickets were not seized and the opinion of the doctor regarding the

injuries and their nature was not ascertained. Therefore, the prosecution

case overshadowed by grave suspicion.

In this context, the version of P.W.9 assumes importance. P.W.9

in his testimony has stated that the injury sustained by P.W.3 was

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grievous in nature, whereas the injury sustained by P.W.2 is simple in

nature. Therefore, the extensive cross examination made by the defence

to I.O. may not be much advantage to the defence. The I.O. was twice

recalled for further cross examination. When he was cross-examined on

05.05.1997 he deposed as under:-

“25. I cannot say if the injured persons were also

treated at Kantabanjhi C.H.C. The admission of Khariar

Mission hospital and the bed-head ticket of the injured

persons I have not seized. I have not sent the X-ray

plates to any radiologist for his opinion.”

14. The conjoint and unison reading of the entire evidence as

discussed would lead to the inevitable conclusion that on 12.09.1994 at

8.00 a.m. the appellant, his wife and his sister picked up quarrel and

abused P.W.3 in filthy language. When P.W.2 came to know regarding

the same, he tried to pacify. The appellant and his wife thereafter went

back to their house. Thereafter, again the appellant came armed with a

tabli and started attacking both P.Ws.2 and 3, causing them seriously

injured. Both the injured were treated initially in Bangomunda hospital

and thereafter although the referral doctor asked them to take the injured

Page 17 of 20

to Sub-Divisional Hospital, Titilagarh, the relatives of the injured

choosed to take them to Khariar Mission Hospital.

15. Mr. Mishra, learned counsel for the appellant by reading the

evidence of the doctor and the I.O. submitted that there is a serious doubt

as to whether P.Ws.2 and 3 were in fact treated in Khariar Mission

Hospital or not. That was the emphasis supplied by the defence at the

stage of final argument before the learned trial court and to establish that

the defence has also examined one witness. However, the learned trial

court has rightly dealt with the defence evidence and drawn a conclusion

that after receiving the injury, the injured were primarily treated at

Bangomunda hospital and thereafter they were taken to Khariar Mission

Hospital, where P.W.2 remained as indoor patient for 13 days and P.W.3

remained 23 days. No doubt the bed head tickets and the x-ray plates

from the hospital have not been seized, but that itself does not create any

doubt regarding the treatment being given to the injured witnesses.

Merely because there are certain discrepancies as to whether the injured

were taken to Sub-Divisional Hospital, Titilagarh or Khariar Mission

Page 18 of 20

Hospital, that will not create a dent in so far as the evidence of P.W.9 is

concerned.

16. Reading of the evidence of all the witnesses and on its due

analysis, the impugned judgment found to be justified on facts and law.

Hence, no interference is called for in so far as the conviction of the

appellant is concerned.

17. Mr. Mishra, learned counsel appearing for the appellant has

submitted that at the time of incident, i.e. in the year 1994, the appellant

was 42 years of age and at present he is more than 73 years of age and he

is also terminally ill. Therefore, he prays for taking a lenient view on the

sentence and accordingly prays for reduction of sentence.

18. When the matter was initially heard, this Court, vide order dated

01.07.2025 and 17.07.2025, directed the Superintendent of Police,

Bolangir to produce a report regarding the status, well-being and

whereabouts of the appellant. Pursuant to the said order, the IIC,

Bangomunda P.S. has placed on record the report dated 21.07.2025, inter

alia, stating as under:-

Page 19 of 20

“With reference to the subject and reference cited above, I am to

intimate that the petitioner Gandaram Behera (71) S/o- Lt.

Bhagirathi Behera of village Bangomunda PS- Bangomunda

Dist-Bolangir (Mob- 9668376953) is now alive but suffering

from multiple diseases and bed ridden condition at his residence

at Bangomunda”.

He has also annexed the medical report in support of the

report.

The appellant has been sentenced to undergo R.I. for two years. It

is brought to the notice of the Court that the appellant has already

undergone custody for a period of about fifty four days. This Court is

also alive to the fact that the appellant is bed ridden and at this belated

stage sending him back to the custody to serve out remaining sentence

would not serve any fruitful purpose, rather would be harsh. This Court

deems it fit to extend the benefit of probation to the appellant under

Section 4 of the Probation of Offenders Act. The case of the appellant is

also covered by the judgment of this Court in Soundarjya Bhoi and

others vrs. State of Orissa

1

, wherein this Court in a similar case of

1

CRA No. 197 of 1997 disposed of on 12.02.2026

Page 20 of 20

conviction under section 307 of IPC extended the benefit of the

Probation of Offenders Act, keeping in view peculiarity of that case.

19. In view of the aforementioned, the present Criminal Appeal in so

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

sentencing the appellant to suffer imprisonment, this Court directs the

appellant to be released under Section 4 of the Probation of Offenders

Act for a period of six months on his executing bond of Rs.5,000/-

(Rupees Five Thousand) within one month with one surety for the like

amount to appear and receive the sentence when called upon during such

period and in the meantime, the appellant shall keep peace and good

behavior and he shall remain under the supervision of the concerned

Probation Officer during the aforementioned period of six months.

20. Accordingly, the Criminal Appeal is partly allowed.

(S.S. Mishra)

Judge

The High Court of Orissa, Cuttack

Dated the 19

th

February, 2026/Ashok