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IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLA No. 149 of 2005

(From the judgment and order dated 05.02.2005 passed by

learned Sessions Judge, Kalahandi at Bhawanipatna in

S.C. No. 17 of 2001)

AFR Jugeswar Majhi @ Buti & Ors. .…. Appellants

-Versus-

State of Orissa ….. Respondent

Advocate(s) appeared in this case through hybrid mode:

For Appellant(s) : Mr. Chiranjeevi Vidyabhusan,

Advocate

For Respondent(s) : Mr. Partha Sarathi Nayak,

Addl. Government Advocate

__________________________________________________________

CORAM:

THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA

Date of Hearing :30.06.2026 :: Date of Judgment:23.07.2026

SASHIKANTA MISHRA, J.

The appellants faced trial in Sessions Case No.

17 of 2001 in the Court of the learned Sessions Judge,

Kalahandi, for offences under Sections 147, 148, 447, 325,

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302 and 302 read with Section 149 of the Indian Penal

Code. By judgment dated 05.02.2005, the Sessions Court

convicted appellant Pustam @ Purusottam Majhi under

Section 302 IPC and sentenced him to undergo

imprisonment for life and to pay a fine of Rs.2,000/-, in

default, to undergo rigorous imprisonment (RI) for one

year. The remaining appellants were acquitted of the

charge under Section 302 read with Section 149 IPC, but

were convicted under Sections 147, 148 and 447 IPC as

well as under Section 325 read with Section 149 IPC. They

were sentenced to undergo RI for one year each for the

offence under Section 147 IPC, RI for two years each for

the offence under Section 148 IPC, RI for three months

each for the offence under Section 447 IPC and RI for three

years each for the offence under Section 325 read with

Section 149 IPC. All substantive sentences were directed to

run concurrently. Be it noted that the appeal, in respect of

appellant No.1- Pustam @ Purusottam Majhi and appellant

No.3-Jaladhar Majhi has abated due to their death during

the pendency of the appeal.

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2. Prosecution case, briefly stated, is as follows:

On 05.04.2000 at about 6.00 a.m., the informant,

the deceased Sahadev Patel and other members of the

deceased family had gone to the case land measuring

Ac.6.51 decimals for collecting mahua flowers. While they

were collecting the mahua flowers, the accused persons

forming an unlawful assembly and being armed with lathis,

tangias and arrows, reached the spot, abused the members

of the deceased family and questioned their possession

over the case land. When the deceased claimed that the

land belonged to them based on a decree passed by the

Court, appellant No.1, Pustam @ Purusottam Majhi, dealt

two to three lathi blows on his head, causing him to fall

down with bleeding injuries. The remaining accused

persons assaulted the deceased and the other members of

the deceased family with the weapons in their hands,

causing grievous and simple injuries to several of them.

The injured persons were shifted to Junagarh Hospital for

treatment. On being informed by one Nilachal Patel orally,

which was reduced into writing later, the police reached

the hospital and registered the FIR under Sections 147,

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148, 447, 294, 325, 323, 324 and 149 of IPC. During

treatment, Sahadev Patel succumbed to the injuries on

07.04.2000.

According to prosecution, there existed a long-

standing dispute between the prosecution and the accused

persons with regard to possession of the case land, on

which several mahua trees were standing. It is stated that

the land had been purchased by the grandfather of the

deceased about thirty years prior to the occurrence and he

had been in continuous possession thereof. When the

accused persons attempted to interfere with such

possession, a proceeding under Section 145 of the Code of

Criminal Procedure was initiated, wherein possession of

the prosecution party over the disputed land was declared.

On the previous day of the occurrence, i.e., on 04.04.2000,

while the deceased and other members of his family had

gone to the case land to collect mahua flowers, some of the

accused persons questioned their right over the land,

which resulted in a quarrel between them.

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After completion of investigation, charge-sheet was

submitted against the accused persons under Sections

147, 148, 447, 294, 325, 324, 323 of IPC, and 302/149

IPC.

3. Accused took the plea of denial and false

implication.

4. To prove its case, prosecution examined nineteen

witnesses and exhibited twenty-five documents. Besides,

prosecution proved seven material objects. The defence, on

the other hand, did not examine any witness but exhibited

two documents.

5. The trial Court, after analyzing the oral and

documentary evidence on record held that the evidence of

the injured eyewitnesses was trustworthy and duly

corroborated by medical evidence. It also held that the

prosecution established that the family of the deceased was

in possession of the case land and that the accused

persons were the aggressors. The Court found that

appellant No.1, Pustam @ Purusottam Majhi, had dealt two

to three lathi blows on the head of the deceased, resulting

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in his death, and held him guilty under Section 302 IPC.

However, it came to the conclusion that the common object

of the unlawful assembly was not to commit the murder of

the deceased but to prevent the deceased and his family

members from enjoying possession of the case land by

causing grievous hurt. Therefore, while convicting the

remaining appellants for the offences under Sections 147,

148 and 447 IPC and under Section 325 read with Section

149 IPC, the trial Court acquitted them of the charge under

Section 302 read with Section 149 IPC.

6. Heard Mr. C. Vidyabhusan, learned counsel for the

appellants and Mr. Partha Sarathi Nayak, learned Addl.

Government Advocate for the State.

7. Mr. Vidyabhusan assails the impugned judgment

of conviction on the following grounds:

i. The occurrence arose out of a sudden quarrel over

a long-standing land dispute and the prosecution

failed to establish the existence of an unlawful

assembly or a common object so as to attract

Section 149 IPC.

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ii. The prosecution evidence is inconsistent regarding

the role and participation of the appellants and is

not supported by recovery of any weapon of

offence.

iii. The conviction under Section 325 read with Section

149 IPC is unsustainable as the prosecution failed

to prove grievous hurt at the hands of the

appellants.

iv. The conviction under Section 447 IPC is

unsustainable as the prosecution failed to prove

exclusive possession over the disputed land, which

was admittedly the subject matter of a long-

standing land dispute.

8. Mr. Nayak, learned State Counsel, on the other

hand, would submit that the prosecution has proved its

case beyond all reasonable doubts by leading cogent

evidence. According to him, the testimony of the injured

eyewitnesses is consistent, trustworthy and stands fully

corroborated by medical evidence as well as the evidence of

the investigating officers. He also submits that merely

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because the appellants were acquitted of the charge under

Section 302 read with Section 149 IPC, it cannot be said

that the unlawful assembly or its common object stood

disproved. The trial Court, upon appreciation of the

evidence, came to the conclusion that the common object

of the unlawful assembly was to cause grievous hurt to the

members of the family of the deceased and it has rightly

convicted the appellants under Sections 147, 148 and 447

IPC as well as under Section 325 read with Section 149

IPC. He further argues that the findings recorded by the

trial Court are based on appreciation of the oral and

documentary evidence and do not warrant interference by

this Court.

9. We have given our anxious consideration to the

rival submissions and carefully examined the oral and

documentary evidence on record as well as the impugned

judgment.

10. At the outset, the existence of a long-standing

dispute relating to the case land is beyond controversy. The

prosecution has consistently claimed that the land

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belonged to the father of the deceased and that proceedings

under Section 145 Cr.P.C. was initiated against the

accused persons. Also, the defence itself has relied upon

Ext.-A, which establishes that proceedings under Section

145 Cr.P.C. was pending between the parties in respect of

the same property. Thus, the existence of the land dispute

stands admitted by both sides. The defence has also not

disputed the presence of the appellants at the place of

occurrence. On the contrary, their case proceeds on the

footing that they had gone to the disputed land to resist the

victims from collecting Mahua flowers. This circumstance

itself explains the genesis of the occurrence.

11. We have independently examined the evidence of

the injured eyewitnesses, namely PW-6, PW-7, PW-8, PW-9,

PW-10 and PW-13. Though they are related to the

deceased, they are also injured in the same occurrence.

Their presence at the place of occurrence is therefore

natural and stands corroborated by the injury reports

proved through PW-17. Merely because the witnesses are

related to the deceased, their evidence cannot be

discarded. Rather, greater weight attaches to the testimony

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of an injured witness unless compelling reasons exist to

reject it. No material has been brought on record by the

defence to show that these witnesses had any reason to

falsely implicate the appellants while sparing the real

offenders.

12. The evidence of all the injured witnesses is fully

consistent in material particulars regarding the

occurrence. They have deposed that on the morning of

05.04.2000 they had gone to the case land for collecting

Mahua flowers when the accused persons arrived there

armed with lathis, tangias and arrows, questioned their

possession over the land and thereafter assaulted them.

They consistently attribute the first assault on the

deceased Sahadev Patel to Purusottam Majhi, who dealt

lathi blows on his head causing him to fall down with

bleeding injuries. They have further stated that thereafter

Bhika Majhi and Jaladhar Majhi assaulted the right hand

of the deceased. The evidence also consistently establishes

that the remaining accused simultaneously assaulted the

other members of the prosecution party causing injuries to

several of them.

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13. Mr. Vidyabhusan has laid emphasis on the

discrepancies regarding the specific overt acts attributed to

individual accused persons and the weapons used by

them. We are unable to accept the submission for the

reason that the occurrence involved several assailants

armed with different weapons and a number of injured

persons. Minor variations with regard to the exact number

of blows, the weapon carried by a particular accused or the

sequence of assault are but natural. Such discrepancies

neither affect the substratum of the prosecution case nor

demolish the consistent version regarding the participation

of the appellants. It is the duty of the Court to separate the

grain from the chaff. In the present case, the discrepancies

pointed out by the defence relate only to minor details,

whereas the injured eyewitnesses have consistently stated

that the appellants came together armed with weapons and

jointly assaulted the deceased and the injured persons.

Their evidence on the material particulars of the

occurrence stands corroborated by medical evidence.

Reference in this regard may be had to the judgment of the

Supreme Court in Gangadhar Behera and Others v.

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State of Orissa

1

, wherein it has been held that minor

discrepancies or embellishments which do not affect the

core of the prosecution case are liable to be ignored.

14. As regards absence of recovery of weapons of

offence, it is well settled that recovery of the weapon is only

a corroborative circumstance. Where the prosecution case

rests upon the evidence of injured eyewitnesses that is

cogent and trustworthy and stands substantially

corroborated by medical evidence, non-recovery of the

weapon by itself does not weaken the prosecution case. In

the present case, the medical evidence fully supports the

ocular version regarding the nature and site of injuries

sustained by the deceased and the injured witnesses.

15. As regards the existence of unlawful assembly, we

are of the view that the evidence of the injured

eyewitnesses consistently establishes that all the accused

persons came together to the disputed land armed with

lathis, tangias and arrows, questioned the possession of

the victims and immediately assaulted them. In view of the

1

(2002) 8 SCC 381

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previous land dispute the accused persons must be

deemed to have prior knowledge of the rival claim over the

property, yet they assembled together and confronted the

victims while they were collecting Mahua flowers. Such

conduct clearly establishes that they acted in furtherance

of a common object. Merely because the trial Court

acquitted the remaining appellants of the charge under

Section 302 read with Section 149 IPC, it does not follow

that the unlawful assembly or its common object stood

disproved. On the evidence on record, we find that the

common object of the assembly was to prevent the victims

from exercising possession over the disputed land by

causing grievous hurt and therefore the trial Court has

rightly held them guilty under section 149 IPC. In the case

of Gangadhar Behera (Supra), the Supreme Court has

held as follow:

“23. “Common object” is different from a “common

intention” as it does not require a prior concert and a

common meeting of minds before the attack. It is

enough if each has the same object in view and their

number is five or more and that they act as an

assembly to achieve that object. The “common object”

of an assembly is to be ascertained from the acts and

language of the members composing it, and from a

consideration of all the surrounding circumstances. It

may be gathered from the course of conduct adopted

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by the members of the assembly. What the common

object of the unlawful assembly is at a particular

stage of the incident is essentially a question of fact to

be determined, keeping in view the nature of the

assembly, the arms carried by the members, and the

behaviour of the members at or near the scene of the

incident. It is not necessary under law that in all

cases of unlawful assembly, with an unlawful

common object, the same must be translated into

action or be successful. Under the Explanation to

Section 141, an assembly which was not unlawful

when it was assembled, may subsequently become

unlawful. It is not necessary that the intention or the

purpose, which is necessary to render an assembly

an unlawful one comes into existence at the outset.

The time of forming an unlawful intent is not material.

An assembly which, at its commencement or even for

some time thereafter, is lawful, may subsequently

become unlawful. In other words it can develop during

the course of incident on the spot eo instanti.

24. Section 149 IPC consists of two parts. The first

part of the section means that the offence to be

committed in prosecution of the common object must

be one which is committed with a view to accomplish

the common object. In order that the offence may fall

within the first part, the offence must be connected

immediately with the common object of the unlawful

assembly of which the accused was a member. 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 be 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 the object which is

being pursued is shared by all the members and they

are in general agreement as to how it is to be achieved

and that is now the common object of the assembly.

An object is entertained in the human mind, and it

being merely a mental attitude, no direct evidence can

be available and, like intention, has generally to be

gathered from the act which the person commits and

the result therefrom. Though no hard-and-fast rule can

be laid down under the circumstances from which the

common object can be culled out, it may reasonably be

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collected from the nature of the assembly, arms it

carries and behaviour at or before or after the scene of

incident. The word “knew” used in the second branch

of the section implies something more than a

possibility and it cannot be made to bear the sense of

“might have been known”. Positive knowledge is

necessary. When an offence is committed in

prosecution of the common object, it would generally

be an offence which the members of the unlawful

assembly knew was likely to be committed in

prosecution of the common object. That, however, does

not make the converse proposition true; there may be

cases which would come within the second part but

not within the first part. The distinction between the

two parts of Section 149 cannot be ignored or

obliterated. In every case it would be an issue to be

determined, whether the offence committed falls

within the first part or it was an offence such as the

members of the assembly knew to be likely to be

committed in prosecution of the common object and

falls within the second part. However, there may be

cases which would be within the first, offences

committed in prosecution of the common object would

be generally, if not always, within the second,

namely, offences which the parties knew were likely

to be committed in the prosecution of the common

object.”

16. We are also unable to accept the submission that

Section 149 IPC is inapplicable because no specific overt

act has been attributed to every appellant. Once the

prosecution establishes that the accused persons

constituted an unlawful assembly sharing a common

object and actively participated in the occurrence, it is not

necessary to prove separate overt act against each member.

The evidence of the injured witnesses clearly establishes

that all the appellants came together armed with weapons

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and participated in the assault. The fact that Purusottam

Majhi inflicted the fatal head injury and Bhika Majhi and

Jaladhar Majhi caused fracture injuries does not absolve

the remaining members of the unlawful assembly from the

liability arising out of the common object established by

the prosecution.

17. As regards the challenge to the conviction under

Section 325 read with Section 149 IPC, we are of the view

that the injury reports and the evidence of PW-17 establish

that Sahadev Patel and PW-6 sustained fracture injuries,

which were opined to be grievous in nature. The ocular

evidence consistently attributes the fracture injury on the

right hand of the deceased to the assault made by Bhika

Majhi and Jaladhar Majhi after Purusottam Majhi caused

the head injuries. Once the existence of fracture stands

proved by the medical evidence, the injury squarely falls

within the ambit of grievous hurt. Reference in this regard

may be had to the judgement of the Supreme Court in the

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case of Hori Lal v. State of U.P.

2, wherein it has held as

follows:

“7. It is contended by the learned Counsel for the

appellant that none of the Injuries 2 to 6 which were

inflicted on PW 2 discloses that there is a fracture or

dislocation of any bone. These injuries, it is said, at

the most show that the particular bones on which the

injuries were inflicted were cut which, however, does

not amount to a fracture. It is true that fracture has

not been defined in the Penal Code. It is sometimes

thought as in the case of Po Yi Maung v. Ma E Tin [A

(1937) Rang 253] that the meaning of the word

fracture would imply that there should be a break in

the bone and that in the case of a skull bone it is not

merely sufficient that there is a crack but that the

crack must extend from the outer surface of the skull

to the inner surface. In Mutukdhar Singh v. Emperor [A

(1942) Pat 376] it was observed that if the evidence is

merely that a bone has been cut and there is nothing

whatever to indicate the extent of the cut, whether a

deep one or a mere scratch on the surface of the bone,

it will be difficult to infer that the injury is a grievous

hurt within the meaning of Section 320 of the Penal

Code. In our view, both these assumptions are

misleading. It is not necessary that a bone should be

cut through and through or that the crack must extend

from the outer to the inner surface or that there should

be displacement of any fragment of the bone. If there

is a break by cutting or splintering of the bone or there

is a rupture or fissure in it, it would amount to a

fracture within the meaning of clause 7 of Section 320.

What we have to see is whether the cuts in the bones

noticed in the injury report are only superficial or do

they effect a break in them. The nature of the injuries

as spoken to by the doctor in his evidence, discloses

the length, breadth and depth of each injury. So far as

the depth of the Injuries 3, 4, 5 and 6 is concerned,

each one of the injuries shows that it is bone deep and

they are described as cutting the underlying bone. In

Injury 3 left humerus, in Injury 4 radius, in Injury 5

both the bones of the left forearm and Injury 6 the

tibia bone shaft have been cut which would show that

they are fractures. Apart from this the doctor as

2

(1970) 1 SCC 8

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noticed earlier has in his evidence said that these

injuries are grievous. It is contended that the doctor

has not disclosed the reason why he thinks that the

injuries were grievous. But in our view the doctor

would not be unaware of what injuries are grievous or

what are simple. At any rate, the nature of the injuries

considered with the evidence of the doctor would

undoubtedly establish that all the aforesaid injuries

were grievous. These injuries were inflicted by Kantas

which are dangerous weapons and hence the

conviction under Section 326 is fully justified.”

[Emphasis added]

The conviction under Section 325 read with Section

149 IPC therefore does not warrant interference.

18. The contention of Mr. Vidyabhusan regarding the

offence under Section 447 IPC is also liable to be rejected.

Merely because there existed a civil dispute regarding the

property does not confer any right upon the appellants to

enter the land in possession of the victims being armed

with deadly weapons and to assault its occupants. The

subsequent demarcation conducted by the Revenue

Inspector on the requisition of the Investigating Officer also

found the land recorded in the name of the predecessor of

the victims. The appellants, must therefore, be held to have

entered the land not in exercise of any lawful right but with

the intention of intimidating, assaulting and dispossessing

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the victims. The ingredients of criminal trespass thus

stand fully established.

19. For the foregoing reasons therefore, we find none of

the grounds urged to challenge the impugned judgment

valid enough to persuade us to take a different view than

what was taken by the trial Court. On the other hand, we

have carefully gone through the impugned judgment and

the evidence on record to be independently satisfied that

the trial Court has recorded the conviction correctly. We

are therefore, not persuaded to interfere with the impugned

order of conviction.

20. However, this is a case of the year 2005. All the

appellants are aged more than 50 year or thereabouts. All

of them were in custody for some time during trial and are

rustic villagers. Keeping in view the above facts we are

inclined to release them on probation instead of directing

them to serve the sentence imposed at this distance of

time.

21. In the result, the appeal is allowed in part. While

maintaining the order of conviction, we direct the

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appellants to be released under section 4 of the Probation

of Offenders Act. For such purpose, the appellants shall

appear before the Trial Court on 17

th August, 2026. It is

made clear that if the appellants do not appear on the date

fixed, this order shall not operate and necessary orders

shall be passed to take them to custody to serve the

remaining part of their sentence as imposed originally.

..........................................

Sashikanta Mishra, J.

Manash Ranjan Pathak, J. I agree.

…........................................

Manash Ranjan Pathak, J.

Orissa High Court, Cuttack

The 23

rd

July, 2026/ A.K. Rana, P.A.