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IN THE HIGH COURT OF ORISSA AT CUTTACK

CRA No. 124 of 2001

From judgment/order dated 03.04.2001passed in Sessions Trial

Nos.133-A/1998/1 of 1998 of learned Addl. Sessions Judge,

Angul.

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

Rabi@Rabindra Behera ...… Appellants

and Others

-Versus-

State of Odisha .. …. Respondent

Advocate(s) appeared in this case :-

_______________________________________________________

For Appellants : M/s. S.K. Dash, S.P. Dash,

& A.B. Srichandan

Advocates

For Respondent : Mr. P.S. Nayak,

[Addl. Government Advocate]

_______________________________________________________

CORAM:

THE HON’BLE MR. JUSTIC MANASH RANJAN PATHAK

AND

THE HON’BLE MR. JUSTICE SASHIKANTA MISHRA

Date of Hearing: 10.02.2026 Date of Judgment: 19.02.2026

SASHIKANTA MISHRA, J.

The appellants question the correctness of the

judgment and sentence passed by learned Additional

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Sessions Judge, Angul on 03.04.2001 in Sessions Trial

Nos.133-A/1998 (1 of 1998), whereby they were convicted

for the offence under Sections 302/148 of IPC and

sentenced to imprisonment for life.

2. Prosecution case, briefly stated, is that a piece of

government land in village Kampasal in Angul district was

under the possession of deceased-Sukadev Dehury.

Having heard on the evening of 30.01.1998 that members

of Keuta community had raised ridges to encroach upon

said land, he, accompanied by his son Sanatan and

brother Somanath, went to the spot at about 7.00 a.m. on

the next day. Seeing that ridges had been constructed,

they dismantled the same with their hands. At that time,

the mother of Jharu Behera came and protested,

whereupon Biswanath (informant) told her that the land

had been measured in the previous year and found to be

government land as per the R.I.’s version and that if it was

found to belong to the objectors, they would give up the

same. Hearing this, the mother of Jharu went away. Half

an hour later, accused Jharu Behera, his son Rabi

Behera, Bandhu Behera, Chhabi Behera, Thaka Behera,

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Rathi Behera and Anil Behera being armed with Tablas

and Lathis (stick), came to the spot and threatened to kill

them. Chhabi assaulted Sukadev by giving a blow with the

Tabla on his leg due to which he fell down. When the

informant tried to snatch away the Tabla, Chhabi also

dealt a blow causing bleeding injury on his thigh. Chhabi

then dealt a Tabla blow on the neck of Sukadev. Anil and

Thaka also assaulted Sukadev with Tablas. The other

accused persons assaulted Sanatan. As a result of such

assault, Sukadev died. The informant ran away from the

spot and informed his brother, Suresh and thereafter both

went to the police station and lodged a report. Basing on

such report, Chhendipada P.S. Case No. 6 of 1998 was

registered followed by investigation. Upon completion of

investigation, charge-sheet was submitted against all the

accused persons under Sections 147/148/302/307/149

of IPC.

3. The defence plea was of denial. Additionally, it

was claimed that the incident had occurred in course of a

quarrel in which the deceased attempted to kill accused-

Chhabi.

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4. To prove its case, prosecution examined thirteen

witnesses and proved fifteen documents and seven

material objects. The defence examined two witnesses,

including accused-Chhabi Behera as D.W. 2.

5. The trial Court found from the evidence on record

that there was enmity between the two groups, which was

aggravated by the act of the accused persons in raising a

ridge on the land which the deceased, Sukadev claimed to

be his. When Sukadev dismantled the ridge being

accompanied by others, the mother of Jharu, being

present, protested and thereafter went away. Evidently

informed by her, the accused persons came to the spot

armed with deadly weapons and assaulted the deceased

and others, causing his death. The trial court found the

death homicidal in nature in view of the oral and medical

evidence. The contradictions in the evidence of witnesses

relating to the number of blows and sequence of the

offence were brushed aside by holding that the same was

natural, as the witnesses had been examined after a long

time. Taking into consideration the evidence of the

informant (P.W.1), the injured witnesses (P.Ws.3 and 4),

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and other post-occurrence witnesses, the trial Court

found that there was clear evidence that the deceased

sustained injuries due to the assault by the accused

persons and died. The defence evidence was not believed,

as there was no evidence of any injury having been

sustained by D.W.2, as claimed by him. The plea of

exercise of right of private defence was thus disbelieved.

On such finding, the trial court, while holding that the

evidence was not sufficient to prove the offence under

Section 307 of IPC, held the accused persons guilty of the

offence punishable under Sections 302/148 of IPC. They

were thus convicted and sentenced to imprisonment for

life.

6. Being aggrieved, the accused/appellants have

preferred the present appeal.

7. Heard Mr.S.K. Dash, learned counsel for the

accused-appellants and Mr. P.S. Nayak, learned AGA for

the State.

8. Mr. Dash assails the impugned judgment of

conviction and sentence on the following grounds:-

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i. The contradictions in the evidence of the

informant and eyewitnesses, being material, could

not have been brushed aside by the trial Court.

ii. Though it is claimed that all eight accused

persons had assaulted the informant and others

yet, only four injuries were found on the body of the

deceased.

iii. The weapon of offence was never recovered.

iv. The trial Court having accepted that there was

dispute between the parties relating to land, should

not have brushed aside the evidence of D.W.2.

iv. Even accepting the evidence on record, the case

would not fall within the definition of murder, but

one caused due to provocation.

9. Per contra, Mr. Nayak would contend that the

evidence adduced by the prosecution through eyewitness

accounts of P.Ws.1, 2, 3 and 4 is clear, consistent, reliable

and trustworthy. The contradictions, if any, are minor in

nature, having no significant effect. Since it was clearly

proved that the accused persons came to the spot being

armed with deadly weapons and assaulted the deceased

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and others causing injuries as a result of which the

deceased expired at the spot, the trial court rightly held

them guilty and convicted them.

10. We have carefully considered the rival contentions

noted above and have gone through the case record. There

is no dispute that deceased, Sukadev having sustained

injuries on his body died as a result. The autopsy surgeon

(P.W.12) clearly stated that the incised wounds found on

the body of the deceased are possible to be caused by a

sharp cutting weapon like, tangia or tabla. Defence has

not disputed that the death of the deceased was homicidal

in nature. Turing to the occurrence, it is seen that the

informant (P.W.1) described the offence in vivid detail with

his version being fully corroborated by the other injured

eyewitnesses (P.Ws.3 and 4). We have gone through their

depositions in detail. The consistent version of these

witnesses is that the dispute arose when it was found by

the informant that the accused persons had raised a ridge

over the land which, was though government land, but

under his cultivating possession. The informant,

accompanied by the deceased and P.Ws.3 and 4

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dismantled the ridge with their hands to which the mother

of accused, Jharu protested. The informant assured that if

it was found that the land actually belongs to the accused

persons, they would give up their claim, regardless of the

expenditure already made by them. Hearing this, the

mother of Jharu went away. A short while later, all the

accused persons being armed with tangia, tabla and badis

(stick) came to the spot and assaulted the deceased and

others causing injuries. Sukadev sustained injury on his

head and other parts of the body and died on the spot.

Certain contradictions were pointed out by the defence,

but the trial court brushed aside the same and according

to us, rightly so as the witnesses were deposing after a

long time. We have also not found any reason to disbelieve

the version of the witnesses.

11. Turning to the grounds raised by accused

persons before us, we are of the view that it is only

natural for the witnesses to fail to depose with

mathematical precision about an occurrence, which took

place a long time ago. This takes care of the first objection

raised by Mr. Dash.

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12. As regards the number of injuries, the

postmortem report shows that deceased sustained as

many as nine injuries with several on vital parts of his

body, namely, neck and head. Therefore, there is nothing

to disbelieve the prosecution witnesses that all the

accused persons had assaulted the deceased, causing

injuries.

13. As to the objection that the weapons of offence

were never recovered and seized, we are not inclined to

place much importance on this, for the reason that when

direct evidence in the form of eyewitness accounts of the

occurrence are available, non-recovery of the weapon of

offence, which may be a lapse in investigation, cannot be

treated as material to the case. This is being said for all

the more reason that there is clear evidence of injuries

having been caused due to sharp cutting weapons

resulting in death.

14. Coming to the next ground raised by Mr. Dash

that the trial court brushed aside the defence evidence

(D.W.2) without valid reason, we find that according to

D.W.2, the deceased was the aggressor as he allegedly

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assaulted D.W.2 by means of a tangia. One of the blows

struck his back and the other, though aimed at his head,

landed on his hand. The other witnesses gave him two

blows with tangia on his leg. However, not a shred of

evidence was put forth to prove the injuries allegedly

sustained by D.W.2. Therefore, the plea of exercise of the

right of private defence was rightly rejected by the trial

Court and we concur with the same.

15. The last ground raised by Mr. Dash is that even

accepting the case of the prosecution as a whole to be

correct, it would still not be a case of murder but culpable

homicide not amounting to murder. In this context, Mr.

Dash would argue that there being evidence of a land

dispute between the parties and of the informant and his

group dismantling the ridge raised by the accused

persons, it would amount to an act of provocation. Such

act was initially protested by the mother of accused-

Jharu but when it yielded no result, she informed the

accused persons who went to the spot. Only because they

were armed with weapons does not mean that they

planned to kill anyone much less the deceased.

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16. Per contra, Mr. Nayak would argue that the

very fact that the accused persons came to the spot being

armed with deadly weapons proves their intention to

cause such bodily injury as would result in death. The

trial court, according to Mr. Nayak, must be held to have

rightly convicted the accused persons for committing

murder.

17. In order to better appreciate the rival contentions,

we feel it proper to once again refer to the sequence of

events that unfolded on the fateful day even at the cost of

repetition. The informant claims that on the previous

evening, he was informed by the deceased that the

accused persons had raised a ridge on the land, which he

had cultivated. The informant, accompanied by his son

Sanatan, brother Somanath and deceased went to the

spot in the morning. The FIR mentions the time as 7.00

A.M. They removed the ridge to which the mother of the

accused Jharu protested. She left the spot and after about

half an hour, the accused persons came to the spot and

assaulted the deceased and others. The FIR was lodged at

10.A.M. on the same day. We thus find that there was

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very little time gap between dismantling of the ridge,

protest by Jharu’s mother and the actual occurrence. The

whole thing appears to have occurred within a short span

of about an hour, more or less. According to our

considered view, it is too short a time period for the

accused persons to have planned specifically to commit

murder of the deceased. In any event, it was the informant

who interacted with Jharu’s mother and therefore, the ire

of the accused persons, if at all, ought to have been

naturally directed against him. No role was played by the

deceased during such interaction. This raises a doubt as

to the motive of the accused persons to come to the spot

with a pre-meditated mind of causing his death. In a

country like India where majority of the rural population

sustains on agriculture, dismantling a ridge raised by the

accused persons can certainly be treated as an act of

provocation. Therefore, the genesis of the actual assault

most certainly lies in such act of the informant and his

group. Such being the case and particularly given the

short period of time during which the entire incident

occurred, it is difficult for us to believe that the accused

persons were actuated with the intent of causing death of

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the deceased. We say so also for the reason that accused

Chhabi dealt the first blow with the tabla on the leg of the

deceased, which can hardly be treated as a vital part of

body or that it, by itself, could have caused death, though

the second blow was on the neck. On the contrary, it can

be reasonably inferred that because of the provocation

caused by dismantling of the ridge raised by them by the

informant and his group, a quarrel ensued between the

two groups in course of which the accused persons

assaulted the other group. The assault being by means of

sharp cutting weapons and on some vital parts of the

body, resulted in death of the deceased.

Exception-1 of Section-300 relates to grave and

sudden provocation. In the case of K.M. Nanavati v.

State of Maharashtra

1, the Supreme Court held as

follows:-

“85. The Indian law, relevant to the present

enquiry, may be stated thus : (1) The test of “grave

and sudden” provocation is whether a reasonable

man, belonging to the same class of society as the

accused, placed in the situation in which the accused

was placed would be so provoked as to lose his self-

control. (2) In India, words and gestures may also,

under certain circumstances, cause grave and sudden

provocation to an accused so as to bring his act

within the First Exception to Section 300 of the Indian

1

1961 SCC OnLine SC 69

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Penal Code. (3) The mental background created by the

previous act of the victim may be taken into

consideration in ascertaining whether the subsequent

act caused grave and sudden provocation for

committing the offence. (4) The fatal blow should be

clearly traced to the influence of passion arising from

that provocation and not after the passion had cooled

down by lapse of time, or otherwise giving room and

scope for premeditation and calculation.

84. Is there any standard of a reasonable man for the

application of the doctrine of “grave and sudden”

provocation? No abstract standard of reasonableness

can be laid down. What a reasonable man will do in

certain circumstances depends upon the customs,

manners, way of life, traditional values etc.; in short,

the cultural, social and emotional background of the

society to which an accused belongs. In our vast

country there are social groups ranging from the

lowest to the highest state of civilization. It is neither

possible nor desirable to lay down any standard with

precision : it is for the court to decide in each case,

having regard to the relevant circumstances. It is not

necessary in this case to ascertain whether a

reasonable man placed in the position of the accused

would have lost his self-control momentarily or even

temporarily when his wife confessed to him of her

illicit intimacy with another, for we are satisfied on

the evidence that the accused regained his self-control

and killed Ahuja deliberately.

86. Bearing these principles in mind, let us look at

the facts of this case. XX XX XX”

18. Prosecution has not adduced any evidence to

show that the accused persons harbored any ill-will

against the informant Biswanath, deceased Sukadev, his

son Sanatan and brother Somanath at any time prior to

the occurrence. Therefore, we are of the considered view

that the case would not fall within the definition of

‘murder’ under Section 300 of IPC, punishable under

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Section 302 of IPC. Rather, it would be a case of culpable

homicide not amounting to murder being covered by

Exception-1 to Section 300.

19. We are persuaded to say so because, by

assaulting the deceased and others with deadly weapons

and causing injuries on vital parts of the body, the

accused persons must be held to have knowledge that

such injuries were likely to cause death, though without

any intention to cause death. This is, therefore, a case

squarely covered under Part-2 of Section 304 of IPC. The

impugned judgment, therefore, warrants interference to

the above extent.

20. Coming to the sentence to be imposed, Part-2 of

Section-304 of the IPC prescribes punishment of

imprisonment extending to ten years. It is seen that all

the accused appellants are on bail in terms of orders

passed earlier in this appeal. We have also received a

report from the IIC of Chhendipada P.S. on 23.10.2025

that accused appellants Jharu Behera and Rathi Behera

are presently very old and confined to their own homes.

These two accused persons were aged more than sixty

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years at the time of the occurrence that is, in the year

1998. As such, we feel it would serve the ends of justice if

the punishment is confined to the period of imprisonment

already undergone by them during the trial. However, in

case of the other accused appellants mainly, (i) Rabi@

Rabindra Behera, (ii) Thaka @Bikram Behera, (iii)

Chhabi@Chhabila Behera, (iv) Baya@Baidhar Behera, (v)

Ani@Anil Behera and (vi) Bandhu@Gopabandhu Behera,

the sentence imposed by the trial court is modified to five

years R.I., with the period of imprisonment already

undergone by them to be set off.

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

impugned judgment and sentence dated 03.04.2001

passed by learned Additional Sessions Judge, Angul in

Sessions Trial No.133-A/1998/1 of 1998 is modified to

the extent mentioned in the previous paragraph.

22. The bail bonds of appellant Nos.1, 3, 4, 5, 6 and 8

namely, Rabi@Rabindra Behera, Thaka@Bikram Behera,

Chhabi@Chhabila Behera, Baya@Baidhar Behera,

Ani@Anil Behera and Bandhu@Gopabandhu Behera

respectively stand cancelled and they be taken to custody

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forthwith to serve the remaining part of their modified

sentence.

……..………………… ..

Sashikanta Mishra,

Judge

Manash Ranjan Pathak, J. I agree.

.………..……………………

Manash Ranjan Pathak,

Judge

Orissa High Court, Cuttack,

The 19

th day of February, 2026/ B.C. Tudu