IN THE HIGH COURT OF ORISSA AT CUTTACK

CRA No.253 of 1995

(In the matter of an application under Section 374 of the Criminal

Procedure Code, 1973)

Satya Narayan Meher & others ……. Appellants

-Versus-

State of Orissa ……. Respondent

For the Appellants : Mr. Kirtan Badhei, Advocate and

Mr. Subham Ghosh, Advocate

For the Respondent : Mr. Ashok Kumar Apat, AGA

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 05.02.2026 : Date of Judgment: 12.02.2026

S.S. Mishra, J. In this appeal, the appellants have challenged the

judgment of conviction and order of sentence dated 08.08.1995

passed by the learned Sessions Judge, Balangir in Sessions Case

No.41 of 1995, whereby the learned Trial Court has convicted the

appellants under Section 304(Part-II) read with Section 34 of the

I.P.C and sentenced them to undergo rigorous R.I. for five years each.

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2. Heard Mr. Kirtan Badhei, learned counsel along with Mr.

Subham Ghosh, learned counsel appearing for the appellants and Mr.

Ashok Kumar Apat, the learned Additional Government Advocate

appearing for the State.

3. The prosecution case in terse and brief is that on 19/20.08.1994 at

about 1.30 A.M., P.W.1-Urmila Meher, wife of deceased Chintamani

Meher submitted a written report before the O.I.C., Patnagarh Police

Station alleging that, at about 5.30 P.M., her husband had been to

their land locally known as “Rangalduli” where they had transplanted

the paddy plants. After half an hour, Rabi Meher (P.W.3) came to her

and told that Chintamani Meher was being assaulted by the accused

persons mercilessly. Having been so informed, she had her grand-

daughter (P.W.4) ran to their “Rangalduli” where they found that

Chintamani Meher was coming leaping with severe bleeding injuries

on different parts of his body. On being asked, he told that when he

went to their “Rangalduli”, he found accused Satya Narayan had

closed the opening of the land to stake the water. When he removed

the obstruction, the accused persons came there. When accused

Satyanarayan assaulted him by means of a spade, the other two

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accused persons also assaulted by spade. The other two accused

persons assaulted him by means of tangias. They brought Chintamani

to their house and gave him first aid, but when gradually the condition

of Chintamani became serious, they brought him to Patnagarh and

admitted in the hospital of Patnagarh.

4. The plea of the accused persons is of complete denial. The

accused persons without disputing the injuries on the person of the

deceased pleaded that the accused Satyanarayan Meher being the

owner of “Rangalduli” was in possession of the same. When he found

that the deceased has made the opening so as to divert the water of

“Rangalduli”, they raised protest, while Chintamani was running

away, he fell down over the stones lying in the opening and sustaining

injuries but they are neither the assailants nor the murderers.

5. The prosecution has examined seven witnesses in support of its

case as against two D.Ws. examined by the accused person. Out of

the witnesses examined by the prosecution, P.W.1 is the widow of the

deceased. P.W.4 is their grand-daughter. P.W.3- Rabi Meher though

according to the prosecution was the only eye witness to the incident,

but when he did not support the prosecution case, he has been

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declared as hostile witness. P.W.2- Sumitra Meher was a post

occurrence witness and a witness to the inquest when the I.O. held the

inquest over the dead body of the deceased and sent for post-mortem

examination. P.W.5 was the doctor, who has not only medically

examined the injured on police requisition while deceased Chintamani

was alive, but also has conducted the post mortem examination on the

dead body of the deceased when he died. When Ext.2 is the injury

report, Ext.3 is the post mortem report, rest P.Ws. are the police

officers, who have investigated the case and they have submitted the

charge sheet.

6. On the basis of the materials placed before the learned trial

Court by the Investigating Agency by way of the Charge Sheet,

charges were framed under Section 302/34 of the IPC against all the

three accused persons. On their denial of the charges and claim of

trial, they were subjected to trial.

7. The learned trial Court, after analysing the evidence brought on

record by the prosecution as well as by the defence plea, arrived at a

conclusion that the prosecution has failed to prove its case beyond all

reasonable doubts in so far as the offence punishable under Section

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302 of the IPC is concerned, however, found the accused guilty of the

offence punishable under Section 304 (Part-II) read with Section 34

of the IPC. Accordingly, on that count, the learned trial Court

sentenced the accused persons to undergo R.I. for five years each. The

present Criminal Appeal has been preferred by the appellants

questioning the judgment of the learned trial Court convicting them

for the offence under Section 304 (Part-II)/34 of the IPC and the

sentence passed on that count. The appeal has been pending since

1995. In the meantime, appellant no.3- Nilamani Meher has died.

Therefore, in the absence of any application on behalf of the legal

heirs or their next friend under Section 394 of the Cr.P.C., the appeal

qua the said appellant no.3-Nilamani Meher stood abated.

8. The present Criminal Appeal is now surviving qua appellant

nos.1 and 2. The appellant no.1 is now aged about 69 years, whereas

the appellant no.2 is aged about 58 years.

9. The learned trial Court, while analysing the evidence on record,

heavily placed reliance on the ocular evidence of P.Ws.1 and 4. The

learned trial Court has also emphasised its judgment basing upon the

testimony of the doctor-P.W.5. The reasonings recorded by the

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learned trial Court to convict the appellants are largely reflecting in

paragraphs- 8 and 9. For ready reference, paragraphs- 8 and 9 are

reproduced here below:

“8. Admittedly there is no eye-witness to the alleged assault. The

only eye-witness said to have been present at the time of

occurrence is P.W.3- Rabi Meher who now does not support the

case of the prosecution for which he has been declared as a

hostile witness. But P.W.1, the wife of the deceased and PW..4

their grand-daughter say in their evidence that having been

informed about the assault from P.W.3 when they proceeded

towards their “Rangalduli” they found that Chintamani was

coming leaping and on asking he told that he was brutally

assaulted by the accused persons. It is evident from their evidence

that deceased Chintamani Meher told to them that while he saw

that accused Satyanarayan has closed the opening of the

“Rangalduli” and had staked the water, he removed the

obstruction. At that time all the accused persons came to him.

When accused Satyanarayan assaulted him on his left arm by

means of a spade on its blunt side, accused Bharat assaulted him

on his head by means of a tangia and the accused Nilamani

assaulted him by means of a thenga on different parts of his body.

Over and above it is evident from the evidence of P.W.6 that

during his investigation he had examined the injured and had

recorded his statement u/s 161 Cr.P.C. in separate sheet. Ext.5 is

the said statement of the deceased recorded by P.W.6. It reveals

that the deceased had gold before him that the accused

Satyanarayan assaulted him on his left arm by a spade in its blunt

side. Accused Bharat assaulted him by means of a tangi and

accused Nilamani assaulted him byh means of a lathi. What they

speak in their evidence is the statement made by the deceased

Chintamani who cannot be called as a witness which is otherwise

known as “Dying declaration”. It goes without saying that the

“Dying declaration” may be oral or written which in most of the

cases are made orally before death ensues. It is not necessary that

it must be recorded or made before a Magistrate. The statement

of the deceased to a Police Officer is also admissible as dying

declaration even if the death took place much later. The fact that

the declarant lingered few days after making the statement does

not deprive it of its character as a dying declaration. It is

undisputed position of law that such dying declaration being

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admissible u/s 32 of the Evidence Act can be the sole basis of

conviction, though it is not prudent to base a conviction on a

dying declaration made to an investigating officer particularly

when it is not signed by the declarant or the witnesses as it

happens in the present case where the deceased Chintamani has

not signed Ext.5 nor the same was signed by any other witnesses.

But there is nothing to ignore the evidence of P.Ws.1 and 4 even if

theyh happen to be the relations of the deceased. They being the

relations of the deceased, it is quite natural that the deceased

would disclose the name of the assailants before them. Their

evidence being reliable and trustworthy, the inevitable conclusion

is that the accused persons are the assailants who caused the

bodily injury on the deceased leading to his death.

9. True, the doctor (P.W.5) who has conducted the post

mortem examination on the dead body of the deceased opines that

the cause of the death may be due to myocardial infarction, that

means the proximate result of the death of the deceased

Chintamani was not dud to the assault. It is stated by P.W.5 that

the deceased was the same person whom he had medically

examined on 20.8.94. Chintamani died while he was undergoing

treatment in their Suhbdivisional hospital as indoor partient on

account of the injuries sustained by him. It reveals from his

evidence that on dissection he only noticed (1) one pale gray

thickening of endocardium of 1.5 cm X 1 cm on the lower part of

the anterior aspect of the left ventricle, and (2) the pale neuritic

muscle on the apex and anterior wall of the left ventricle 1.5 cm

below and lateral to injury No.1. Therefore, the entire evidence of

P.W.5 taken together, the only conclusion is that the injuries

sustained by the deceased on account of the assault has

accelerated the disease in the heart resulting his death. Therefore,

the accused persons shall be deemed to have caused the death of

the deceased as contemplated under Explanation- (1) appended to

Section 299 I.P.C.”

10. I have carefully gone through the evidence on record brought

by the prosecution as well as the defence. In fact, the evidence of

P.Ws.1, 3 and 5 are the essence of the prosecution case. P.W.1 is the

informant in this case. She in her testimony has deposed that in the

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afternoon of the date of incident her husband had been to their land

which is situated in the end of the village basti. P.W.4, the grand-

daughter hurriedly came and told her that one Rabi Meher (P.W.3)

told her that the accused persons were assaulting her husband

Chintamani in their land. She has also deposed that the accused

persons were armed with spade, lathi and tangia. Immediately after

hearing the incident, she went to the spot along with P.W.4 and

discovered that her husband was lying there in severe bleeding injury

on his head and other parts of the body. She and her grand-daughter,

P.W.4 brought her husband to the spot and thereafter brought to their

house. At that point of time, her husband disclosed that Satyanarayan,

who is the son of younger brother of her husband, assaulted her

husband by means of a spade on the left arm. Accused Bharat Meher

dealt two blows on his head by tangia. Accused Nilamani assaulted

her husband by means of a thenga on different parts of his body. She

further deposed that she called her nephew Sumanta Meher (P.W.2)

and with his help, her husband was shifted to the hospital. The said

witness has very categorically deposed that there has been dispute

relating to taking of water to their land. Accused persons have been

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enmical to their family. This part of the prosecution narrative

elucidated from P.W.1 stood directly corroborative with the evidence

of P.W.4. P.W.4 is the grand-daughter of P.W.1. She has deposed that

Rabi Meher (P.W.3) informed her regarding the assault to

Chintamani. She and P.W.1 together went to the spot and found

Chintamani had sustained severe bleeding injury on his person and his

body was stained with mud. He enquired from Chintamani about the

incident, who rebutted that Satyanarayan assaulted him by means of

spade on his left arm. Bharat Meher assaulted him by means of a

tangia on his head whereas Nilamani assaulted him by means of lathi

on the other parts of his body. Thereafter, Chintamani was brought to

their house and after giving First-Aid to him, he was removed to the

hospital. While Chintamani was undergoing treatment as an indoor

patient, he died on the following Sunday at 8 P.M. The incident had

happened on Friday afternoon and Chintamani succumbed to the

injuries on the following Sunday evening. Both P.W.1 and P.W.4

sustained extensive cross-examination by the defence witnesses. But

their testimony could not be tainted in any manner whatsoever.

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11. P.W.3-Rabi Meher, who had informed the incident to P.W.1

and P.W.4, had turned hostile. However, he deposed that on the date

of incident, he heard hulla from the place of incident. Out of fear, he

ran away towards the village. P.W.1 and P.W.4 have stated that P.W.3

had intimated them at the village regarding the incident. Therefore,

the part of the testimony of P.W.3 that he heard hulla from near a

place of occurrence and out of fear, left the place and ran away

towards the village found corroborated with the evidence of P.W.1

and P.W.4. Therefore, safely it could be inferred that the incident had

taken place at the land of Chintamani and Chintamani was assaulted

by the accused persons.

12. It is also eminent from the record that there was past enmity

between the accused and the deceased because of the dispute

regarding the water saving. Accused Satyanarayan is the son of

younger brother of Chintamani. Therefore, the identification of the

accused persons is not doubted by the witnesses. The veracity of the

aforementioned witnesses as discussed above, needs to be found

corroborated to sustain the conviction recorded by the learned trial

Court. In that view of the matter, I have also analysed the evidence of

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P.W.5, who is the doctor and examined the deceased Chintamani.

P.W.5 was examined on 20.08.1994. He, in his testimony has stated

that he found four injuries on the person of the deceased. According

to him, injury nos.1, 3 and 4 were simple in nature whereas injury

no.2 was grievous. The following injuries were found on the person

of the deceased :

“(1) One lacerated wound 1 cm X 0.2 cm X 0.4 cm on the left

middle lateral aspect of the arm.

(2) Fracture of left humerous bone at the middle part.

(3) One lacerated wound of 1 cm X 0.2 cm X 0.2 cm on the

right supra scapular space 2 cm. back of acromion

process of right clavicle bone.

(4) One lacerated wound of 6 cm X 0.5 cm skin X depth on

right parietal bone 3 cm. right to mid-line placed

obliquely.”

13. The same doctor on 22.08.1994 had conducted the post mortem

examination. He has further stated in his testimony that Chintamani

died while he was undergoing treatment in the Subdivisional hospital

as an indoor patient on account of injury sustained by him. On the

dead body, he found the following injuries:

“ I found one lacerated injury of 1 cm X 0.2 cm X 0.2 cm on

the right supra scapular space, 2 cm. back of acromion

process of right clavicle.

(2) One lacerated wound of 6 cm x 0.5 cm x skin depth on

right parietal bone, 3 cm. right to mid-line, placed obliquely.

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(3) One lacerated wound of 1 cm x 0.2 cm X 0.2 cm on the

middle lateral aspect of the left arm.

(4) Fractures of left humerous bone at middle part which is

compound in nature.

(On dissection) :-

Heart- (1) One pale, gray thickening of endocardium of 1.5

cm x 1 cm on the lower part of anterior aspect of left

ventricle.

(2) Pale necrotic muscles on the apex and anterior wall of

left ventricle, 1.5 cm. below and lateral to No.1.”

14. P.W.5 in the examination-in-chief has very categorically stated

that “the cause of death may be due to myocardial infections.” He has

exhibited the post-mortem report as Ext.3. In the cross-examination,

the said witness has further deposed that “in case of lacerated injuries

by lathis, by blunt side of axe, spade; the surrounding area of the

lacerated wound are accompanied by bruises. In the present case I

have not noticed the bruises around the lacerated wound.” From the

evidence of P.W.5, the doctor, who had treated the deceased initially

and subsequently conducted the post-mortem examination, one can

safely infer to the conclusion that the death of Chintamani is not

homicidal one. This conclusion would also be found support from the

evidence of the other witnesses. The learned trial Court appears to

have missed the point and arrived at the following conclusion :

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“All these circumstances taken together, the only conclusion

is that the accused persons had not intended to cause the death of the

deceased though ultimately on account of such injury the deceased

died. The above being the consideration, the mischief of murder under

Section 302 of the IPC not being attracted, the accused persons are

only liable for the offence under Section 304 (Part-II) read with

Section 34 of the IPC.”

15. On the basis of the analysis of the evidence of the prosecution

as narrated above, I am in complete disagreement with the findings of

the learned trial Court as recorded above. I am of the view that the

case is falling under the mischief of Section 325 of the IPC because

the appellants have caused four injuries to Chintamani (the deceased)

out of which three injuries were simple in nature, but one injury was

grievous. The appellants have also used deadly weapons, which have

been recovered and exhibited as M.O.1 and M.O.2. As per the

testimony of P.W.7, the Investigating Officer of the case has stated

the M.O.1 and M.O.2 were shown to the Medical Officer, who had

given a Certificate that the injury sustained by Chintamani could have

been caused by those weapons.

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16. Therefore, while acquitting the appellants for the offence under

Section 304(Part-II) of the IPC, I convict the appellants for

commission of the offence punishable under Section 325 of the IPC

read with Section 34 of the IPC. The conviction is accordingly

modified.

17. At this stage, Mr. Badhei, learned counsel for the appellants

submitted that during the trial, the appellants have already undergone

six months of incarceration and he further submitted that keeping in

view the age of the appellant nos.1 and 2, a lenient view may be

taken.

18. Regard being had to the circumstances in its entirety, the

appellant nos.1 and 2 are sentenced to undergo R.I. for one year each

and to pay a fine of Rs.20,000/- (Rupees twenty thousand) each, in

default, to undergo further period of R.I. for six months each. The

sentence already undergone by them shall be set off towards the total

sentence of one year under section 328 of the Cr. P.C. The fine

amount to be deposited by the appellants shall be disbursed to P.W.1

or her legal heirs as compensation under Section 357 of the Cr. P.C.

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19. Accordingly, the CRA stands partly allowed to the extent

indicated above.

(S.S. Mishra)

Judge

The High Court of Orissa, Cuttack.

Dated the 12

th

Day of February, 2026/ Subhasis Mohanty