CRA No. 222 of 2001 Page 1 of 21

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRA No.222 of 2001

(From the judgment and order dated 17.10.2001

passed by learned 2

nd Addl. Sessions Judge,

Cuttack in S.T Case No.1 of 221 of 2000)

Prafulla Kumar Dehury and Ors. … Appellants

- versus-

State of Odisha … Respondent

Advocates appeared in the case through hybrid mode:

For Appellants : Mr. B.B.Routray,

Advocate

-versus-

For Respondent

: Ms. Subhalaxmi Devi,

A.S.C.

---------------------------------------------------------------------------

CORAM:

THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA

____________________________________________________________

Date of hearing-10.03.2026 Date of Judgment-19.03.2026

Sashikanta Mishra,J. The appellants faced trial for

murder in S.T. Case No. 221 of 2000 in the Court of

CRA. No.222 of 2001 Page 2 of 21

learned Second Additional Sessions Judge, Cuttack and

were convicted under Sections 302/34 of IPC and

sentenced to imprisonment for life. Be it noted that another

person namely, Bimala Dehury also faced trial in the

connected case, being S.T. Case No. 442 of 2000 but by the

same judgment, she was acquitted.

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

The occurrence took place on 27.01.1999 at 7 a.m. in

village Nuasolabandha. It so happened that on the previous

night around 8 p.m., there was pelting of stones on the

house of the informant Sabar Nayak. The identity of

culprits could not be ascertained. On the next morning at

about 7 a.m., while Sabar Nayak, his nephew Jeevan

Nayak (deceased) and several villagers were discussing

about the stone-pelting incident, accused Prafulla Kumar

Dehury (appellant No. 1) suddenly rushed to the spot

holding an axe and assaulted the deceased with it, causing

grievous injury on his head. As a result, the deceased lost

consciousness. After attending to the deceased, the

informant went to Kanpur Police Station and submitted a

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CRA No. 222 of 2001

written report. Basing on such report, P.S. Case No. 4 of

1999 was registered under Sections 341/307/506 IPC

followed by investigation. In course of investigation, the

deceased, who was referred to Cuttack for treatment,

succumbed to the injury. As such, the case turned to

Section 302 of IPC. Upon completion of investigation,

charge-sheet was submitted against all the three

appellants.

3. The defence, apart from taking the plea of denial, took

the specific stand that the deceased had assaulted accused

Prafulla and fell down on rocks while running away,

resulting in injury on his head. The appellants were falsely

implicated.

4. To prove its case, prosecution examined 7 witnesses

and proved 11 documents and 3 material objects. On the

other hand, defence examined 2 witnesses and exhibited 3

documents.

5. The trial Court, after analyzing the evidence on

record, found that the prosecution case was well-

established against the accused persons. Relying on the

CRA. No.222 of 2001 Page 4 of 21

evidence of P.Ws.1, 2 and 3 along with medical evidence,

the trial Court held that it was amply proved that accused

Pratap and accused Pankaj caught hold of the deceased

while accused Prafulla dealt a Tangia blow on his head,

which ultimately led to his death. The trial Court

disbelieved the defence evidence on the ground that even if

it was accepted, it only proves that any injury sustained by

the accused would have arisen during the occurrence. The

trial Court, however, did not find any evidence to prove the

prosecution allegation that accused Bimala had instigated

Prafulla to assault the deceased. Thus, while acquitting

Bimala, the trial Court convicted the other three accused

persons and sentenced them as already stated

hereinbefore.

6. Heard Mr. B.B.Routray, learned counsel for the

appellants and Ms. Subhalaxmi Devi, learned ASC for the

State.

7. Mr. Routray assails the impugned judgment on the

following grounds:

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CRA No. 222 of 2001

(i) Though it is stated by the prosecution witnesses

that there was a huge gathering, yet no one came

forward to prevent appellant No.1 from assaulting

the deceased as alleged, which is not believable.

(ii) P.W. 2 admitted that by the time he rushed to

the spot the assault was already over and

therefore, he could not have been treated as an

eye-witness.

(iii) Though the witnesses stated that a Tangia was

used to commit the offence, yet a Farsa was sent

for examination by the doctor.

(iv)There was a counter-case against the deceased

and one Tuku Rana which suggests false

implication in the present case.

(v) The names of accused Pratap and Pankaj do not

find place in the FIR or in the first 161 statement of

the informant, which shows that they were

subsequently implicated after due deliberation.

(vi) The occurrence took place because of quarrel

between the parties and therefore, cannot be

CRA. No.222 of 2001 Page 6 of 21

treated as ‘murder’ within the meaning of Section

300 of IPC.

8. Per contra, Ms. Subhalxmi Devi would submit that

P.Ws.1, 2 and 3 clearly stated that they had seen the

occurrence being present nearby and described it vividly.

Their evidence remained unshaken in cross examination.

The ocular evidence is fully corroborated by medical

evidence. Even assuming that there was a tussle, accused

Prafulla was not a party to the same and therefore, the

benefit of Exceptions 1 and 4 of Section 300 cannot be

given to him.

9. We have given our anxious consideration to the rival

contentions and have also analysed the evidence on record.

It is seen that there are three eye-witnesses to the

occurrence-P.Ws.1, 2 and 3. All of them have unequivocally

stated that on the date of occurrence in the morning, when

the deceased asked accused Pankaj about the pelting of

stones, he admitted and threatened to do so also in future.

This was followed by a tussle between the deceased and

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CRA No. 222 of 2001

accused Pratap, who gave the deceased 2 to 4 slabs. At

that time, accused Prafulla, who was standing nearby with

a Tangia rushed towards the deceased and dealt a blow on

the left side of his head. All these witnesses were cross-

examined at length but nothing was elicited thereby to

discredit their version. It is further borne out from the

evidence that the deceased first received treatment at

Kanpur Hospital, where his injury was dressed up and he

was referred to Sub-divisional hospital, Athgarh. He was

further referred to Cuttack for treatment, where he

succumbed. The autopsy surgeon found a cut injury on the

left side of head along with other injuries over the body. He

opined that the cause of death was due to cranio-cerebral

injury. He also opined that the injury to the head would

have been caused by the weapon produced before him

(M.O.1). The above, in short, is the prosecution case

against the accused persons.

10. Having observed as above, we shall now proceed to

consider the rival contentions listed hereinbefore.

CRA. No.222 of 2001 Page 8 of 21

It is argued that there was a huge gathering during the

assault but no one came forward to prevent the

occurrence, for which the prosecution eye-witness

accounts should be disbelieved. We do not agree for the

reason that the occurrence appears to have taken place

within a short period of about 5 minutes as per the version

of P.W. 2 . Others may not have had the time to react. Even

otherwise, accused Prafulla being armed with Tangia and

in an apparently belligerent mood, no one would also have

dared to come forward out of fear. Only for such reason

therefore, the eye-witness accounts cannot be brushed

aside.

11. As regards the possibility of P.W. 2 having seen the

occurrence, we find that he clearly stated that at the

relevant time when he was cleaning his teeth in front of his

house, one Kalinga Nayak, accused Pankaj and accused

Pratap and others were warming their bodies while sitting

around a fire. The deceased arrived there and enquired

from the above-named persons as to who pelted stones on

the previous night. To this, accused Pankaj threatened of

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CRA No. 222 of 2001

committing graver offences in future and accused Pratap

gave 3 to 4 slaps to the deceased. Accused Prafulla then

took a Tangi and rushed towards the deceased and

assaulted him.

In cross-examination, he reiterated that he was

brushing his teeth at the time of occurrence and that the

assault took place within 5 minutes. He stated that by the

time he rushed to the spot, the assault was already over.

We have referred to the spot map marked Exhibit-9. We

find that the spot is on the road in Nuasolabandha village,

which consists of rows of houses on both sides. The names

of all the 14 house owners have been specifically

mentioned in Exhibit-9. Significantly, the house of P.W. 2

(Gobardhan Nayak ) does not find place in his said list. So

his statement that he was brushing his teeth in front of his

house becomes doubtful and that his house was about 15

to 20 cubits away from where the deceased was assaulted

also becomes doubtful. In such a situation, it is difficult to

treat P.W. 2 as an eye witness.

CRA. No.222 of 2001 Page 10 of 21

12. It has been urged that there is confusion as regards

the exact weapon used. According to the witnesses, a

Tangia was used but no Tangia was recovered, rather a

Farsa and sent to the medical officer for his opinion. The

opinion of the medical officer is marked Exhibit-4. Perusal

of Exhibit-4 reveals that the doctor has described the

weapon as ‘Tangia (Farsa)’ and has also mentioned its

dimensions.

It is argued that the weapon of offence seized by the

I.O. and proved in the Court as M.O.1 is a Farsa, whereas

according to the witnesses, the accused used a Tangia to

assault the deceased. Reading of the evidence of the

witnesses shows that none of them has stated about any

Farsa being used. The I.O. (P.W.7) describes the M.O.1 as

Tangia in Exhibit-6. The seizure list also mentions the

weapon as Tangia. Though there is some discrepancy in

this regard, yet we are not inclined to place much

importance on the same because the dimension of the

weapon has been described in Exhibit-6. That apart, the

Doctor (P.W.5) described the weapon in his opinion vide

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Exhibit-4 as ‘Tangia (Farsa)’. It is common knowledge that

both Taniga and Farsa are sharp cutting weapons though

the length of the handle and that of the blade may differ.

Even accepting the defence argument as above, it will not

take away the evidence of assault by a sharp cutting

weapon like Tangia/Farsa.

13. It is next argued that the occurrence had been arisen

out of a quarrel wherein both parties were engaged in

assaulting each other, which is evidenced by the fact that a

counter-case was lodged against the deceased and his

associate. Therefore, the trial Court could not have

brushed aside the same. It is also urged that the trial

Court committed manifest error in completely discarding

the defence evidence.

After going through the evidence, we find considerable

force in the above contention inasmuch as the I.O. (P.W.7)

admitted in cross-examination that Kanpur P.S. Case No. 5

/1999 is a counter to this case, where FIR was lodged on

27.01.1999 at 9.45 a.m. and that Jiban Nayak (deceased)

and Tuku Rana are the accused persons. Pankaj Dehury

CRA. No.222 of 2001 Page 12 of 21

(appellant No.2) is the complainant in the said case. He

also admitted that accused Prafulla Dehury was sent for

medical examination in the said case and was referred to

SCB Medical College by the Medical Officer at Kanpur PHC.

It is significant note the further admission of the I.O. that

he did not collect the injury certificate of Prafulla Dehury in

the counter case and could not assign any reason for such

omission.

14. Reading of the impugned judgment reveals that the

trial Court has in fact completely brushed aside the above

evidence by holding as follows:

“Of course, there is no cogent circumstance available

from the materials on record that the deceased had

ever caused any harm to the accused persons for

which a counter case as per the FIR under Ext. B

could be lodged. It is quite apparent and possible that

the accused persons in order to get rid of the rigours

of the present case, they have filed counter case to

save their skin. Even if there was any injury on the

person of any of the accused persons, the same can

be explained to have been caused during the course

of occurrence where there was tussle between the

accused persons and the deceased.

Therefore, the evidence of the defence witnesses (D.W

1 & 2) cannot be accepted to be true in view of the

material evidence even though they state that the

deceased died being fallen on a boulder. That part,

the documentary evidence in Exts. A, B and C also do

not help the defence in any manner whatsoever, to

prove the innocence of the accused persons.”

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The defence has examined two witnesses who have also

stated about the counter case.

15. It is trite law that defence evidence is to be

appreciated on the principle of preponderance of

probability and not on the strict parameters of beyond

reasonable doubt. The Court has to see if a plausible

defence has been made out or not. From the reasoning of

the trial Court as extracted hereinbefore, it can be seen

that the trial Court has discarded the defence evidence on

surmises and conjectures without citing any cogent reason

for not accepting the same. It is not a question of proving

the innocence of the accused persons beyond doubt, but

whether a plausible defence is set up or not. Therefore, the

documents marked Exhibits A, B and C assume

importance in consideration of the defence plea that the

occurrence had arisen out of a mutual fight. This changes

the whole scenario. We are therefore of the view that the

trial Court committed manifest error in not placing due

CRA. No.222 of 2001 Page 14 of 21

importance on the evidence relating to the counter case

wherein accused Prafulla was also injured.

16. Now, coming to the most important ground that the

prosecution story, as laid, is an exaggerated version of

what exactly transpired, we find that the FIR was lodged by

P.W.1 on 27.01.1999 at 9.15 a.m. He named only accused

Prafulla Dehury as having assaulted the deceased by

means of a Taniga. The names of the other two accused

persons are conspicuously absent. P.W.1 was examined by

the I.O. on 28.01.1999 and his statement was recorded

under Section 161 of Cr.P.C., which is on the next date of

the occurrence. Though he referred to the altercation

between the deceased and accused Pankaj and accused

Pratap, he specifically named only Prafulla Dehury as

having assaulted the deceased by means of a Tangia. Even

in the FIR, he did not whisper a word about the

involvement of accused Pratap and accused Pankaj. While

deposing in the Court however, he improved upon his

original version. Defence has tried to take mileage of this

apparent improvement in the version of the informant. We

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CRA No. 222 of 2001

find considerable force in the defence argument. This is a

case where the informant lodged FIR in writing himself

claiming to be an eye witnesses. There is no reason why he

would not mention the names of all persons involved in the

occurrence but name only one of them. In his initial

statement recorded under Section 161 of Cr.P.C. also, he

did not name the other two accused persons. Defence,

while cross-examining him, drew his attention to such

omission, but he denied. The I.O. however, admitted in his

cross-examination about such omission. This raise a

reasonable doubt. While we agree with the contention

raised by the State counsel that FIR is not supposed to be

an encyclopedia, yet it is settled law that omission of

important facts affecting the probabilities of the case is

relevant under Section 11 of the Evidence Act in judging

the veracity of the prosecution case. This was held by the

Supreme Court in the case of Ram Kumar Pandey v.

State of M.P.

1, wherein the following observations would

be relevant:

1

(1975) 3 SCC 815

CRA. No.222 of 2001 Page 16 of 21

“9. No doubt, an FIR is a previous statement which

can, strictly speaking, be only used to corroborate or

contradict the maker of it. But, in this case, it had

been made by the father of the murdered boy to

whom all the important facts of the occurrence, so far

as they were known up to 9-15 p.m. on March 23,

1970, were bound to have been communicated. If his

daughers had seen the appellant inflicting a blow on

Harbinder Singh, the father would certainly have

mentioned it in the FIR We think that omissions of

such important facts, affecting the probabilities of the

case, are relevant under Section 11 of the Evidence

Act in judging the veracity of the prosecution case.”

17. In the case of Anmol Singh v. Asharfi Ram & Ors .

2

,

the Supreme Court upheld the acquittal of the accused

persons on a similar ground that the version in the FIR

was different from the version given in the Court. The

above omission assumes significance in the present context

because as stated earlier, the occurrence arose out of

mutual quarrel involving both parties. Therefore, in the

absence of a cogent explanation being offered regarding the

omission to name all the accused persons at the first

instance, their subsequent implication becomes doubtful

and difficult to accept.

18. Having thus dealt with the grounds of challenge to the

impugned judgment as raised by the defence, we shall now

2

1998 SCC (Cri) 369

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proceed to deal with the ultimate finding of the Court

regarding guilt of the accused persons. As stated earlier,

there is acceptable evidence of a counter-case being lodged

at the instance of the accused persons against the

deceased and also some evidence of accused Prafulla

having received injury. This lends considerable weight to

the supposition that the parties assulted each other in

course of a mutual quarrel/altercation.

The genesis of the dispute seems to lie in the incident

of pelting of stones at the house of the informant on the

previous night. There is nothing in the evidence to show

that accused Prafulla harbored any ill-will against the

deceased prior to the occurrence. We accept the evidence

that in course of altercation between the deceased and the

other two accused persons, accused Prafulla suddenly

rushed towards the deceased and assaulted him by means

of an axe causing injury which ultimately led to his death.

The assault was obviously not pre-planned but arose

suddenly in the heat of the moment. However, fact remains

that he assaulted the deceased with the axe on his head

CRA. No.222 of 2001 Page 18 of 21

causing a cut injury grievous enough to kill him. This

shows his intention to cause bodily injury sufficient to

cause death along with knowledge of the same. Exception 4

to Section 300 reads as follows:

“Exception 4.—Culpable homicide is not

murder if it is committed without

premeditation in a sudden fight in the heat of

passion upon a sudden quarrel and without

the offender's having taken undue advantage

or acted in a cruel or unusual manner.”

We are convinced that the case squarely falls under

Exception- 4. We do not accept the prosecution argument

in this regard. In the case of Gurmukh Singh v. State of

Haryana

3, the Supreme Court held as follows;

“23. These are some factors which are required to be

taken into consideration before awarding appropriate

sentence to the accused. These factors are only

illustrative in character and not exhaustive. Each

case has to be seen from its special perspective. The

relevant factors are as under:

(a) Motive or previous enmity;

(b) Whether the incident had taken place on the spur

of the moment;

(c) The intention/knowledge of the accused while

inflicting the blow or injury;

(d) Whether the death ensued instantaneously or the

victim died after several days;

(e) The gravity, dimension and nature of injury;

(f) The age and general health condition of the

accused;

3

(2009) 15 SCC 635

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(g) Whether the injury was caused without

premeditation in a sudden fight;

(h) The nature and size of weapon used for inflicting

the injury and the force with which the blow was

inflicted;

(i) The criminal background and adverse history of the

accused;

(j) Whether the injury inflicted was not sufficient in the

ordinary course of nature to cause death but the

death was because of shock;

(k) Number of other criminal cases pending against

the accused;

(l) Incident occurred within the family members or

close relations;

(m) The conduct and behaviour of the accused after

the incident. Whether the accused had taken the

injured/the deceased to the hospital immediately to

ensure that he/she gets proper medical treatment?

These are some of the factors which can be taken into

consideration while granting an appropriate sentence

to the accused.”

19. From what has been narrated above, we are unable to

persuade ourselves to treat the act of accused Prafulla as

murder, rather it would be a case of culpable homicide not

amounting to murder punishable under Section 304 Part 1

of IPC. As regards the conviction of the other accused

persons, we hold that there being evidence of improvement

in the prosecution case to implicate them, their conviction

cannot be sustained.

20. From the conspectus of the analysis of evidence,

contentions raised and the discussion made, we hold that

CRA. No.222 of 2001 Page 20 of 21

the impugned judgment warrants interference by way of

modifying the conviction of accused Prafulla from murder

to culpable homicide not amounting to murder. We further

hold that the conviction of accused Pratap and accused

Pankaj cannot be sustained and is therefore, set aside to

such extent.

21. In the result the appeal is allowed in part. The

impugned judgment is modified in the following manner:

i) Accused Pankaj and accused Pratap are held not guilty

and are therefore, acquitted of the charges. They being on

bail, their bail bonds be discharged.

ii) Accused Prafulla is held guilty of commiting culpable

homicide not amounting to murder and is therefore,

convicted under Section 304 Part 1 IPC. The incident

occurred in the year 1999, that is, 26 years ago and arose

out of a mutual assault wherein the accused also

sustained some injury. He was in custody for some period

during trial. We are therefore of the view that ends of

justice would be best served if he is sentenced to 7 years

rigorous imprisonment with the usual set-off. His bail

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bonds stands cancelled and he shall be taken into custody

forthwith to serve the remaining part of the sentence, if

any.

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

Sashikanta Mishra, J.

Manash Ranjan Pathak, J. I agree.

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

(Manash Ranjan Pathak,J.)

High Court of Orissa, Cuttack.

Deepak