THE HIGH COURT OF ORISSA AT CUTTACK

CRA No. 197 of 1997

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

Soundarjya Bhoi and others ……. Appellants

-Versus-

State of Orissa ……. Respondent

For the Appellants : Mr. D.P. Dhal,

Senior Advocate

For the Respondent : Mr. S. Panigrahi, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 05.02.2026 : Date of Judgment: 12.02.2026

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

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

conviction and order of sentence dated 23.08.1997 passed by the learned

Additional Sessions Judge, Titilagarh in Sessions Case No. 48/11 of

1997, whereby the learned trial Court has convicted the accused-

Page 2 of 18

appellants for the offences punishable under Sections 148/149/307 of the

I.P.C. and, accordingly, sentenced them to undergo R.I. for one year

each for the offence under Section 148 I.P.C. and further sentenced to

undergo R.I. for two years and to pay a fine of Rs.500/- each, in default

to undergo R.I. for one month each for the offence under Sections

149/307 IPC.

2. Heard Mr. D.P. Dhal, learned Senior Counsel for the appellants

and Mr. S. Panigrahi, learned Addl. Standing Counsel for the State.

3. The prosecution story as per the FIR is that on 15.07.1996 at about

7.00 A.M. at village Sandhisar the accused persons, namely, Soundarjya

and Lalu scolded and threatened Hazari Hans. The brother of the

informant protested to their easing in his land called „Satlengi‟.

Thereafter, all the accused persons arrived on the thrashing floor of the

informant situated over that „Satlengi‟ land being armed with Thengas,

Lathi and Axe. The accused Lalu scolded in filthy language and

assaulted the father of the informant by a rod, accused Soundarjya

assaulted Hazari with an axe on his head and leaving Hazari taking him

to be dead accused persons chased the informant, his father and his

Page 3 of 18

brothers. On the basis of the written report of the informant, Bangamuda

P.S. Case No.23 dated 15.07.1996 was registered and investigation was

conducted and charge sheet was filed. Hence, against all the eleven

accused persons the learned trial court framed the charges under Sections

307/149/148 IPC and on their stance of complete denial and claim for

trial, they were put to trial to face the charges, as mentioned above.

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

as twelve witnesses. Out of them, P.W.1 was the informant, P.Ws.5, 6

and 8 are the victims, P.Ws.3, 4 and 9 were the co-villagers and the eye

witnesses to the occurrence. P.W.7 was the doctor, who examined

P.Ws.5 and 6. P.Ws.11 and 12 were two Investigating Officers, who

investigated the present case.

5. By analyzing the evidence brought on record by the prosecution,

the learned trial court convicted all the accused persons, as per the

charges mentioned above, and on the said count, sentenced them to

undergo R.I. for one year each for the offence under Section 148 I.P.C.

and further sentenced to undergo R.I. for two years and to pay a fine of

Page 4 of 18

Rs.500/- each, in default to undergo R.I. for one month each for the

offence under Sections 149/307 IPC.

6. Aggrieved by the aforementioned, all the accused-appellants

conjointly filed the present appeal. The appeal is pending since 1997.

During pendency of the appeal, it was reported by the prosecution that

appellant nos.6, 8, 10 and 11 have already expired. In the absence of any

application either on behalf of their legal heirs or the next friends, the

appeal qua those deceased appellants, stood abated. Hence, the present

appeal is to be considered qua appellant nos.1 to 5, 7 and 9. The analysis

of the prosecution evidence borne on record qua the surviving appellants

are being done to examine the sustainability of the conviction and

sentence recorded by the learned trial court.

7. In the present case, there are three injured witnesses and one eye

witness have been examined. P.Ws.1, 5 and 6 are the injured witnesses,

whereas P.W.8 is the eye witness. P.W.10 is the doctor, who examined

the injured P.W.6, whereas P.W.2, who was another doctor, had

examined P.W.5. Apart from the ocular testimony of these witnesses, the

other materials have been successfully brought on record by the

Page 5 of 18

prosecution to establish its case and bring home the charges. Initially, the

FIR was registered by P.W.1, the informant, who has narrated the

incident in quite detail specifically attributing overt act against appellant

nos.1 and 2. When the said informant stepped into the witness box as

P.W.1, he has reiterated his version inter alia stating that appellant no.2-

Lalu and appellant no.1-Soundarjya were easing themselves in their land

called „Satlengi‟. His brother Hazaru protested and at that time he, his

father and two brothers, namely, Subash and Rajendra were threshing the

floor in the nearby field. He further stated that the two accused persons

scolded Hazaru in filthy languages and left the place. After some time,

they came with nine accused persons. He deposed that appellant no.2

was armed with iron rod and appellant no.1 was armed with an axe. The

said witness appears to have named all the accused persons, but not

found mentioned in the recorded evidence. He deposed that appellant

nos.1 and 2 not only scolded them but also accused no.1 assaulted on his

head giving three strokes on the sharp edge and assaulted his brother

Hazaru P.W.5, who fell down. Thereafter appellant no.2 assaulted his

father with an iron rod, resulting fracture on his left hand and thereafter

Page 6 of 18

all the accused persons went away towards their village. He disclosed the

name of witnesses those who were present at the time of incident. He

was also testified by the prosecution as one of the seizure witness. The

said witness was subjected to cross examination by the defence, but

nothing could be yielded to the advantage of the defence.

P.W.5, the brother of P.W.1 was also one of the injured, whose

deposition stood corroborated with the evidence of P.W.1 without any

variation.

P.W.6, who is the father of P.Ws.1 and 5, was the third injured. He

has deposed that when he along with his sons P.Ws.1 and 5 and Subash

were threshing their land, appellant nos.1 and 2 scolded them and left

from there and after some time both of them came with all the accused

persons. This witness has not named the other accused persons and not

even identified them. But he has very specifically deposed that the

appellant nos.1 and 2 armed with iron rod assaulted him as well as his

son P.W.5. The narration of incidents made by P.W.6 finds no variation

with the narration of the incident made by P.Ws.1 and 5.

Page 7 of 18

P.W.8 was an eye witness to the occurrence, who in his testimony

has deposed exactly the same version of the prosecution story, as has

been narrated by the other witnesses. He has deposed that when he was

preparing to plough their land near the river along with his father and

elder brother, appellant nos.1 and 2 came near to the river to wash

themselves and he was told by P.W.5 that appellant nos.1 and 2 have

scolded and threatened P.W.5 and on the protest they immediately left

the place. Little thereafter appellant nos.1 and 2 came with a large

number of accused persons being armed with axe, rod and lathies etc.

The appellant no.2 searched for his brother P.W.5 using filthy language

and saying “Magiha Hazari kahi golu tote hanidebu”. On protest by his

father he was assaulted on his head and left elbow with rod by appellant

no.2. The appellant no.1 assaulted on the head of P.W.5 with an axe

causing bleeding injury. P.W.5 caught hold of the axe when appellant

no.1 made a second attempt to assault him and he fell senseless. He has

further deposed that “other accused persons had surrounded us and/were

shouting. After the incident the accused persons fled away thinking that

the injured persons are dead”. He has also witnesses to the seizure of the

Page 8 of 18

axe used by the appellant no.1 to assault P.W.5 which was M.O.IV. The

defence failed to elucidate anything to their advantage in the cross

examination.

P.W.2, the doctor, who had examined the injured P.W.5 found

following injuries:-

“1. Lacerated wound- 2cm x 1cm x 1cm over right

side forehead 4cm above the centre of right eye brow.

2. Lacerated wound 2cm x 1cm x 1cm over centre

of right parital region of scalp.

3. Lacerated wound 4cm x 1cm x 1cm

anteroposterierl longitudinal over centre of vault of

scalp.”

He has opined that all the injuries were simple in nature and it is

possible by sharp edge axe, if the edge was not sharp enough. P.W.2, the

doctor further deposed that the injury could not be possible by the assault

on the sharp edge of an axe, if the edge was sharp and not blunt. The

sharp edge of the axe will be taken as blunt edge, if it has lost its

sharpness. The fracture may be caused depending upon the force used, if

the assault is made with axe.

P.W.10, the other doctor, who had examined the injured P.W.6 has

found the following injuries:-

Page 9 of 18

“1. Lacerated injury of size- 1 ½” x 1” partial thickness

of the scalp on the scalp of the vertex.

The injury was simple in nature and caused by blunt force

impact.

2. Fracture dislocation around left elbow fracture of

upper end of ulna which was dislocated from hunerous.”

He opined that the injuries are grievous in nature and caused by

blunt force impact. The opinion given by the doctor, P.W.10 regarding

the grievousness of the injury is based on the ex-ray examination, vide

plate No.L-103, which was exhibited.

8. Mr. Dhal, learned Senior Counsel appearing for the appellants

submitted that reading of the evidence of the doctor makes it clear that

the injuries caused by the appellants were not aimed or intended to kill

the injured persons. He submitted that lacerated injuries were found on

the body of the injured persons, which is generally not caused by the use

of sharp side of the axe. Though the appellants were armed with sharp

edge weapons, but they did not use the sharp side of the weapon, hence

only caused lacerated wound. But the learned trial court has gone wrong

to arrive at a conclusion that the appellants were having intention to kill

the injured. Therefore, he submitted that even if the prosecution evidence

Page 10 of 18

is taken at its face value, no offence under Section 307 IPC could be

established on record, rather it would be at best a case under Section 325

IPC.

9. I have taken into consideration the evidence in toto. It is ably

establish on record by the prosecution that the incident had taken place

on 15.07.1996 and the appellant nos.1 and 2 were the aggressors. They

have initially quarreled with P.W.5 and P.W.6 and left the place.

Subsequently, they gathered with other accused persons and came to

attack P.Ws.1, 5 and 6 and caused bodily injury to the witnesses. Since

the injuries sustained by P.W.5 are grievous in nature and in the vital

part of the body, the learned trial court has rightly concluded that the

prosecution could prove the charge against the appellants under Section

307 IPC. The learned trial court has meticulously dealt with the evidence

of all the witnesses and arrived at the following conclusion:-

“………… Let us take first the injuries of P.W.5. Ocular

evidence on the point is that three strokes were given on

his head by the sharp edge of axe-M.O.IV and it is the

medical evidence of the doctor-P.W.2 that he found three

numbers of lacerated wounds on the head of the injured.

The doctor gave out possibility of these injuries by the

sharp edge of an axe, the edge not sharp enough, before

Page 11 of 18

examining M.O.IV and after examining that M.O.IV opined

that assault on the sharp edge of that axe might cause

incised wound. So the opinion of the doctor is not definite

on possibility of these injuries by the sharp edge of M.O.IV.

On my scrutiny of this weapon its sharp edge was found

not to be that sharp and assault with force by that edge on

head is expected to cause incised wound. But in absence of

any evidence or impact of force used during assault in that

state of chaos there is scope to accept the opinion of the

doctor on possibility of the injuries on P.W.5 even by

assault on the sharp edge of M.O.IV. On the injury of the

other injured-P.W.6 it is the consistent evidence of

P.Ws.5,6 and 8 that P.W. 6 with an iron rod was assaulted

on his head and left hand more specifically elbow causing

fracture of that elbow. Of course-P: W:1' has only

breathed about the assault on the left hand of P.W.6 by

iron rod but the omission is explained in the cross-

examination of P.W.8 which is that P. W.6 was assaulted

once and the stroke slipped from his head and struck on

left elbow. The doctor -P.W.10 examining this P.W.6 about

2 half hours after the alleged assault has found lacerated

injury on his head and fracture of his left elbow caused by

hard and blunt weapon. So there is no discrepancy in the

ocular evidence and medical evidence as submitted by

learned counsel for the accused.

Learned defence counsel next contended to

disbelieve the prosecution charge unfolding the short falls

in the investigation. The I.O.-P.W.11 has admitted not to

have seized the patches of blood found by him at the spot

and both the I.Os -P..11 and 12 hove admitted not to have

sent the seized articles for chemical examination. Non-

seizure of blood patches from the spot and non-sending of

seized articles for chemical examination are accepted

negligence of the I.Os. but are considered not enough to

pull down the prosecution case established otherwise.

P.W..11 has tried to reason out non-sending of P.W.1 for

his medical examination who he was not required to do so

there being no fact and evidence of and that P.W1. had

Page 12 of 18

sustained any injury. Citing the decision reported in (1995)

8 OCR-494 learned defence counsel submitted that defence

has been prejudiced for non-examination of the police

officer of Khariar P.S. who has examined P.W. 6. In the

cited decision His Lordship has held:-

"B. CRIMINAL TRIAL- Non-examination of

investigating police officer in trial- Defence

unable to put material omission in evidence of

witnesses _ relating to the alleged assault-

Held, non-examination, of I.O. a serious

infirmity resulting in prejudice to the

accused”.

This P.W.6 has been examined twice, once by police

officer of Khariar P.S. and again by P.W.12 and no police

officer of Khariar P.S. has been cited as a C.S. witness.

Since prosecution has depended on the statement of P.W.6

recorded by P.W.12 no prejudice has been caused to the

defence for non-examination of any police officer of

Khariar P.S. As such, in my humble opinion, the dictum of

law pronounced in the cited decision has no bearing to the

present case, both the cases standing on different footings.

Learned defence counsel citing the decision reported in

1991(1) O.L.R.289 and (1995) 8 OCR-568 urged to

discard the evidence of P.Ws. for their delayed

examination U/S.161 Cr.P.C. by the I.O. In the first cited

decision, Their Lordships have held:

"1.CRIMINAL TRIAL Appreciation of

evidence-Witnesses giving inconsistent

versions regarding scribing of FIR-

Prosecution unable to establish the authorship

of FIR-Non-disclosure of occurrence by

witnesses to doctor and co-villagers at the

earlier opportunity- inordinate and

unexplained delay in examination of material

Page 13 of 18

witnesses-Acquittal justified and not to be

interfered with."

In the second cited decision His Lordship has held:-

“D. CRIMINALTRIAL- Appreciation of

evidence-Witness examined about a month

after the occurrence -In absence of plausible

explanation for the delayed examination,

evidence to be discarded".

As it appears from the C.D. only P.Ws.6 and 8 have been

examined by the I.O. P.W.12 on 27.11.96 after he took

charge of the investigation on 26.11.96. Non-examination

of these witnesses before hand has been explained in the

evidence of the first I.O.-P.W.11 which is that he could not

examine them as he failed to find them out. As such the

contention of the learned defence counsel has no force.

Learned defence counsel next contended that

prosecution case is to be disbelieved in view of use of

different filthy languages by the witnesses developing a

story from time to time, discrepancy in the evidence of

presence of Rajendra one of the brother of the informant

and of shifting of P.W.5 to the threshing floor of one Rama

Laxman Tiwari and non-examination of two of the four

independent witnesses without any reason. Discrepancy is

there on presence of Rajendra (not clear) is not in the

F.I.R. and on the obscene words used by accused Lalu in

the evidence of the witnesses but thát is very natural when

the witnesses, rustic villagers have been brought to witness

box about 10 months after the alleged incident. Also there

is discrepancy as to how P.W.5 reached the threshing floor

of Rama lexman Tiwari situated on the other side of the

river. Arjuni soonafter the alleged assault on him.

Creeping in of this discrepancy is not unnatural for the

reason mentioned above and also the discrepancy is not

considered material to shatter the credibility of the

witnesses. Thus, prosecution has not examined other eye

Page 14 of 18

witnesses Neheru Tandi and Hruda Hans, may be getting

alarmed on P.W.3 and 4 going hostile to the prosecution

whose evidence might have further cerented the

prosecution case but their non-examination has not

weakened the -prosecution case well established otherwise.

It may be mentioned here that nothing has seen elicited

from the evidence of P.Ws.1,5,6 and 8 to discredit them.”

10. The evidence of P.Ws.1, 5, 6 and 8 if read in unison and in

conjunction, one thing would very apparent that none of the witnesses

have attributed any overt act to any other accused persons except

appellant nos.1 and 2. The witnesses have not appropriately identified

the accused persons, i.e., remaining appellants. From the reading of the

evidence of P.W.1, it is clear that he has given the name of all the

accused persons, but the names are not reflecting in the recording of

evidence. Besides that P.W.8, the only witness who deposed that the

other accused persons had surrounded them and were shouting. Save and

except this isolated statement of P.W.8, there is nothing brought on

record by the prosecution to show the complicity or involvement of the

other appellants in the commission of crime. Therefore, barring appellant

nos.1 and 2, the remaining appellants are directly entitled to the benefit

of doubt, as the evidence of the prosecution is not full proof against any

Page 15 of 18

of them. Hence, qua those appellants, interference with the judgment by

this Court is called for. Accordingly, barring appellant nos.1 and 2, all

other appellants are entitled to acquittal, as the prosecution has miserably

failed to prove its case beyond all reasonable doubt to bring home the

charges under Sections 147/149/307 IPC.

In view of the foregoing discussion, the conviction recorded by

the learned trial court against appellant nos.1 and 2 under Section 307

IPC is affirmed and the conviction recorded against all other appellants

are set aside.

11. At this stage, Mr. Dhal, learned Senior Counsel appearing for the

appellant submitted that the incident relates back to the year 1996 and at

that point of time the appellant nos.1 and 2 were 45 and 35 years of age.

The appeal is pending since 1997. At present the appellants are senior

citizens. Appellant no.1 is now 74 years of age and appellant no.2 is 64

years of age. Therefore, in the late evening of their life sending them to

serve out the remaining period of sentence could be harsh. He has relied

upon the judgment of this Court in the case of Chinta Marandi @

Chintamani Marandi vrs. State of Orissa, CRREV No. 393 of 2000

Page 16 of 18

disposed of on 14.07.2022 and submitted that regard being had to the age

of the appellants and prolongation of the judicial proceeding for about

more than three decades, the appellants may be entitled to the benefit of

the Probation of Offenders Act.

12. The present appeal stands rejected qua appellant nos.1 and 2

vis-à-vis their conviction under Section 307 IPC. However, taking into

consideration the overall fact scenario of the case and the fact that the

occurrence relates back to the year 1996 and the appellant nos.1 and 2

are senior citizens, I accede to the prayer made by Mr. Dhal, learned

Senior Counsel appearing for the appellants. Accordingly, while

extending the benefit under Section 4 of the Probation of Offenders Act,

I direct the appellant nos.1 and 2 to be released under Section 4 of the

Probation of Offenders Act for a period of one year on their executing

bond of Rs.5,000/- (Rupees Five Thousand) each within one month with

one surety each for the like amount to appear and receive the sentence

when called upon during such period and in the meantime, the appellant

nos.1 and 2 shall keep peace and good behavior and they shall remain

Page 17 of 18

under the supervision of the concerned Probation Officer during the

aforementioned period of one year.

13. Section 357 Cr. P.C. and Section 5 of the Probation of Offenders

Act empowers the Court to award compensation to the victim(s) of the

offence in respect of loss/injury caused to them. The object of the

provision is to meet the ends of justice. This section was enacted to

reassure the victim that he/she is not forgotten in the criminal justice

system. The amount of compensation to be awarded under Section 357

Cr.P.C. depends upon the nature of crime, extent of loss/damages

suffered and the capacity of the accused to pay, which the Courts should

elucidate on the facts of each case. This Court is convinced from the fact

and circumstances of the case that the appellant nos.1 and 2 although are

entitled to the benefit of Section 4 of the Probation of Offenders Act as

first time offenders, they are also liable to pay fine of Rs.15,000/-

(rupees fifteen thousand) each under Section 5 of the Probation of

Offenders Act.

14. Accordingly, both the appellant nos.1 and 2 are directed to deposit

Rs.15,000/- (rupees fifteen thousand) each within a period of one month

Page 18 of 18

hence. The total amount of Rs.30,000/- to be deposited by the appellant

no.1 and 2 shall be disbursed to three of the injured, namely, P.Ws.1, 5

and 6 equally. In case any of the injured person(s) is/are not surviving,

their L.Rs are entitled to the compensation.

15. Accordingly, the Criminal Appeal is partly allowed.

(S.S. Mishra)

Judge

The High Court of Orissa, Cuttack

Dated the 12

th

February, 2026/Ashok