The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 252 of 1990 (In the matter of an application under Section 374(2) read with Section 382 of the Criminal Procedure Code, 1973) Bhaba @ Bhabagrahi Panda and Others ……. Appellants -Versus- State of Odisha ……. Respondent For the Appellants : Ms. Ananya Mishra, Advocate For the Respondent : Mr. Raja Bhusan Dash, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearings: 20.11.2025 :: Date of Judgment: 09.12.2025 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 7th of August 1990 passed by the learned Sessions Judge, Balasore in S.T. Case No.91 of 1984. By the said judgment, the learned trial Court found the appellants guilty of the offences punishable under Sections 395 and 457 of the Indian Penal Code, and sentenced each of them to undergo rigorous imprisonment for 7 years for offence U/s.395 of the Indian Penal Code and further R.I. for 6 months for offence under Section 457 of IPC. All substantive sentences were directed to run concurrently. 2. Vide order of this Court dated 01.07.2025, the appeal stood abated qua appellant no. 3, he having expired in the year 2017. During hearing of the present appeal, when the judgment was reserved, learned counsel for the State submitted that appellant no. 2, Benguli @ Surendra Tripathy, had also expired on 14.09.2020. Consequently, in the absence of any application under Section 394 Cr.P.C. filed by their legal heirs or next friends, the appeal stands abated insofar as appellant nos. 2 and 3 are concerned. As regards appellant nos. 1, 4, 5 and 6, they are stated to be alive. The report and the death certificates have been taken on record. 3. Heard Ms. Ananya Mishra, learned Advocate for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State. Page 2 of 23
Legal Reasoning
Brief Facts of the Case 4. Briefly stated, the case of the prosecution is that after taking dinner on the night of 12.10.1982, the members of the family of Jagabandhu retired to bed. The family members present in the house were: Puspalata Mishra (P.W.1), wife of Jagabandhu; Bijay Mishra (P.W.2), son of Jagabandhu; Pakan Mishra (P.W.3), daughter-in-law of Jagabandhu; Ajay Mishra (P.W.7), another son of Jagabandhu; and one Santosh Mishra, brother of Ajay Mishra. Jagabandhu slept in his bedroom, while Puspalata slept in the passage room leading to the backyard (badi). P.W.2 Bijay, P.W.7 Ajay and Santosh slept in another bedroom, and P.W.3 Pakan slept in her own room. At about 10:00 p.m., P.W.1 Puspalata and P.W.7 Ajay heard knocking at the badi door. When Puspalata enquired about the identity of the caller, the response came from accused Bhabagrahi Panda, who identified himself as “Manus.” Both Puspalata and Ajay recognised his voice. On being questioned as to the purpose of his presence, accused Bhaba stated that they had come to take Rs. 500/- for consuming liquor. Immediately thereafter, Bhabagrahi Panda and Page 3 of 23 his associates broke open the badi door and entered the house, armed with deadly weapons and carrying torch lights. The prosecution further asserts that some of the accused assaulted Puspalata, and Jagabandhu was forcibly tied to a pole fixed in the courtyard. When P.W.2 Bijay protested, one of the accused dealt a knife blow on the left side of his chest, causing a bleeding injury. It is also alleged that the accused persons forcibly removed the earrings and necklace worn by Puspalata. When they attempted to snatch the earrings of P.W.3 Pakan, she pleaded with them not to touch her, stating that she would voluntarily hand over her ornaments, which she then did. Thereafter, the accused persons allegedly confined all the inmates, including Jagabandhu, in a bedroom and proceeded to break open trunks and boxes kept in various rooms, removing gold and silver ornaments, clothes, utensils and other household articles. Some of the accused persons also broke open the granary and removed a substantial quantity of paddy stored therein, along with a large amount of molasses kept in the house. Page 4 of 23 After the accused persons fled with the looted property, P.W.7 Ajay Mishra went to Tihidi Police Station to report the incident. The FIR was registered at 7:30 a.m. on 14.10.1982. Sridhar Nayak (P.W.11), A.S.I. of Tihidi Police Station, took up investigation, as the
Legal Reasoning
then O.I.C., Sri R. Nayak, was on leave, and P.W.11 was in charge. He visited the spot, examined witnesses, and seized the stolen articles from different accused persons. Upon completion of investigation, charge-sheet was submitted, and the accused persons stood trial. By judgment dated 18.10.1985, the learned trial Court acquitted all the accused persons. Aggrieved by the acquittal, the victims preferred Criminal Revision No. 579 of 1985 before this Court. Vide order dated 20.10.1989, the revision was allowed and the matter was remitted to the learned trial Court for fresh disposal. On remand, the learned trial Court passed the impugned judgment, which is under challenge in this appeal. 5. The prosecution examined eleven witnesses. P.W.1 Puspalata Misra, P.W.2 Bijay Misra, P.W.3 Pakan Misra and P.W.7 Ajay Misra were the inmates of the house of Jagabandhu and claimed to be Page 5 of 23 eyewitnesses to the occurrence. These witnesses sought to establish that all the accused persons committed dacoity in their house on the night of the incident. P.W.4 Krushna Chandra Tiadi @ Tripathy is a seizure witness to a bucket allegedly recovered from the possession of accused Nakula Naik, which was claimed to belong to the family of Jagabandhu. P.W.5 Dinabandhu Rout, the Medical Officer, examined and certified the injuries sustained by P.W.1 Puspalata, P.W.2 Bijaya Kumar Misra and Jagabandhu Misra. P.W.6 Pagala Tripathy is a witness to the seizure of various articles recovered from the house of accused Bhabagrahi Panda. P.W.8 B.N. Misra, the then Judicial Magistrate First Class, conducted the Test Identification Parade (T.I. Parade) of the properties recovered from the houses of different accused persons. P.W.9 Harekrishna Padhi claimed to be a seizure witness of a "Dekchi" (M.O. VII) from the house of accused Kasi Tiadi and Rabi Tiadi. He also stated that he had seen broken boxes and trunks lying scattered in the house of Jagabandhu. Page 6 of 23 P.W.10 N.N. Padhi, the C.I. of Police stationed at Chandbali, took over the investigation from P.W.11 and ultimately submitted the charge sheet against the accused persons. P.W.11, the A.S.I. of Police, carried out the major part of the investigation. Verdict of the Trial Court 6. After the matter was remitted vide the order passed in Criminal Revision No. 579 of 1985, the learned trial Court undertook a fresh appreciation of the evidence on record. It placed substantial reliance on the testimonies of the inmates of the house P.W.1 Puspalata Misra, P.W.2 Bijay Misra, P.W.3 Pakan Misra and P.W.7 Ajay Misra who consistently narrated the sequence of events in detail and unequivocally named the accused persons as the perpetrators of the offence. The Court also drew support from the evidence of the seizure witnesses, including P.W.4 Krushna Chandra Tiadi @ Tripathy, P.W.6 Pagala Tripathy and P.W.9 Harekrishna Pahadi, whose testimonies regarding the recovery of stolen articles lent corroboration to the prosecution version. Taking into consideration the totality of the circumstances, the detailed and specific nature of the evidence and Page 7 of 23 their categorical identification of the accused persons by the witness, the learned trial Court proceeded to hold as under: “25. In the result, I hold that the accused Bhaba alias Bhabagrahi Panda, Benguli alias Surendra Tripathy Balaram Panda, Kasinath Tiadi, Nakula Naik and Gayadhar Tiadi alias Tripathy are found guilty U/Ss.395 and 457 I.P.C. and convicted thereunder. As per the above discussion, I hold that the prosecution has failed to bring home the charge against the other accused persons namely Purusottam Tripathy, Ramachandra Nath, Abhimanyu Jena, Bata Krushna Jena, Prahallad Panda, Ananda Panda, Kalandi Jena, Karunakar Panda, Babaji alias Brajamohan Nayak, Rabindra Tiadi, beyond reasonable doubt and are thus acquitted of the Charges.” 7. Aggrieved by the aforementioned Judgement of conviction and the order of sentence passed by the learned Sessions Judge, Balasore, the present appeal has been preferred. Submission by the learned Counsel for the Appellants 8. Ms. Mishra, learned Counsel appearing for the appellants, submitted primarily that the conviction of the appellants is wholly unsustainable in law and on facts. She contended, at the outset, that the appellants had been duly acquitted of all charges by the learned trial Court in the year 1985, and it was only pursuant to the revision filed by the informant before this Court, wherein the matter was Page 8 of 23 remitted for fresh disposal, that the learned trial Court, in the year 1990, reversed the earlier acquittal and recorded the present conviction. According to her, such reversal was founded on an erroneous and impermissible re-appreciation of the evidence. Learned Counsel further submitted that the prosecution case stands materially weakened in view of the non-recovery of any gold or silver ornaments, or the alleged 11,200 kilograms of paddy, molasses, and other articles said to have been looted during the occurrence. She argued that the absence of any independent and disinterested witness to the incident; the inconsistencies between the medical evidence and the ocular testimony; and the glaring embellishments and falsehoods in the statements of P.Ws.1, 2, 3 and 7 cumulatively render the entire prosecution version doubtful. Ms. Mishra also pointed out that the FIR, despite being lodged after an unexplained delay of one full day, contains an unusually elaborate and detailed description of events, which, in her submission, seriously dents the credibility of the prosecution case. Page 9 of 23 9. It was next urged that the conviction of the appellants appears to have been founded on a standard of “broad probabilities,” both by this Court in revision as well as by the learned trial Court upon remand. She argued that such an approach is contrary to the settled legal position that the prosecution must prove the guilt of the accused beyond all reasonable doubt and that no conviction can be sustained on mere conjectures, surmises, or preponderance of probabilities. 10. It was also submitted by Ms. Mishra that, the alleged incident occurred in the year 1982, and the conviction was recorded in 1990. The appellants have, therefore, been subjected to the trauma of prolonged litigation for over 43 years, living under constant fear, social stigma, and mental agony. She contended that this prolonged ordeal has, in effect, served the deterrent purpose contemplated by law, and to mandate the appellants to undergo a custodial sentence of seven years at this distant point of time would amount to a grave miscarriage of justice. In the above premises, learned Counsel prayed that the appeal be allowed and the appellants be acquitted of all charges, thereby securing their release. Page 10 of 23 Submission by the learned Additional Standing Counsel for the Respondent-State 11. On the contrary, Mr. Dash, learned Additional Standing Counsel appearing for the State, supported the impugned judgment and submitted that the conviction recorded by the learned Sessions Judge, after remand, is based on a thorough, independent, and comprehensive re-evaluation of the entire evidence on record. He contended that the findings of guilt under Sections 395 and 457 IPC are well-reasoned, detailed, and firmly grounded in the oral, documentary, medical, and seizure evidence adduced during trial. 12. Learned ASC submitted that the incident occurred at night in a remote rural village, where the informant and his family members were brutally assaulted, threatened with weapons, unlawfully confined, and subjected to large-scale looting. In the circumstances, the decision of the victims to avoid the direct route to the police station and instead travel through a longer but safer path was both natural and a consequence of the fear instilled by the accused persons themselves. He submitted that in cases of dacoity, night-time violence, and rural insecurity, delay in lodging the FIR is not only Page 11 of 23 expected but also considered natural by judicial precedents, and hence such delay does not weaken the prosecution case. 13. He further submitted that the detailed narration in the FIR cannot be construed as fabrication, particularly in a case involving multiple intruders, violence, and extensive looting. The fact that the FIR was drafted with the assistance of an advocate’s clerk only lends coherence to the narrative and does not diminish its credibility. The defence sought to challenge the prosecution on the ground of delay in lodging and forwarding the FIR; however, the learned trial Court rightly rejected such contention after accepting the explanation of P.W.7 that he took a longer route out of fear of encountering the accused. Further, the defence did not cross-examine the Investigating Officer regarding the time of dispatch of the FIR to the Magistrate and hence, no adverse inference can be drawn. Reliance was placed on the judgment of the Hon’ble Supreme Court in Pattipati Venkaiah v. State of Andhra Pradesh1, wherein it has been held that mere delay 1 AIR 1985 SC 1715 Page 12 of 23 in forwarding the FIR to the Magistrate is insufficient to discard an otherwise credible prosecution case. 14. Learned ASC submitted that the testimonies of P.W.1, P.W.2, P.W.3 and P.W.7 the injured and natural eyewitnesses are clear, consistent, and mutually corroborative. He submitted that minor discrepancies highlighted by the defence are natural after a traumatic event and do not detract from the core of the prosecution case, which remains unshaken that the accused persons forcibly entered the house at night, assaulted the victims, tied and confined them, removed household articles and valuables, and thereafter fled. 15. He submitted that the medical evidence of P.W.5 fully supports the prosecution version. The injuries on P.W.1 and P.W.2 were medically verified and the timeline (24–36 hours) falls squarely within the time of the incident. The fact that the injuries were simple in nature does not undermine the prosecution case, as even minor injuries are sufficient to establish violence in a charge of dacoity. It was further submitted that multiple articles were seized during investigation from different accused persons, and these articles were Page 13 of 23 subjected to a duly conducted Test Identification Parade by P.W.8, the learned Judicial Magistrate. P.W.7 identified all the articles without hesitation. The fact that the articles were common household items does not vitiate the recovery, as the law does not require that stolen property be unique in character. Identification by a single competent witness is legally sufficient, especially when the witness is an inmate of the house and familiar with the articles. 16. Learned ASC emphasised that the accused persons failed to furnish any explanation regarding possession of the seized articles. During their examination under Section 313 Cr.P.C., they offered only evasive replies, which strengthen the inference of guilt. No defence witnesses were examined, nor any credible alternative narrative put forward to dislodge the prosecution case. 17. Regarding the plea of enmity, learned ASC submitted that although prior hostility existed, it provided motive for the accused to commit the offence rather than for the victims to falsely implicate several co-villagers. Courts have consistently held that while evidence in cases involving enmity requires careful scrutiny, it cannot be Page 14 of 23 rejected when it is otherwise cogent, convincing, and corroborated by material evidence, as in the present case. Learned ASC also highlighted the detailed and consistent testimonies of the eyewitnesses: P.W.1 described the group of 25–30 armed co-villagers forcibly entering the house, assaulting and tying her husband, snatching ornaments, stabbing P.W.2, and removing valuables. P.W.2 corroborated the forcible entry, assault, stabbing, confinement, and looting, and identified all the accused in Court. P.W.3 narrated the snatching of her ornaments and sari, tying of her father-in-law, breaking of boxes, and extensive looting by accused who were known villagers. P.W.7 provided a consistent account of the unlawful entry, assault, snatching, stabbing of Bijay, confinement, looting, and his subsequent fear-driven decision to take an indirect route to the police station. Page 15 of 23 Learned ASC further submitted that P.W.8, the Judicial Magistrate, conducted the Test Identification Parade strictly in accordance with law and confirmed that P.W.7 identified the articles without any police interference. P.W.5, the Medical Officer, fully corroborated the injuries sustained by the victims. P.W.11, the Investigating Officer, detailed the steps taken during investigation, including seizure of broken doors, damaged boxes, paddy, and other material objects from the houses of various accused persons. 18.
Decision
In view of the above evidence, learned ASC submitted that the prosecution has proved the charges under Sections 395 and 457 IPC beyond all reasonable doubt. The conviction recorded by the learned trial Court is based on overwhelming, consistent, and credible evidence, and the grounds urged in appeal are wholly untenable. Accordingly, he prayed that this Court may be pleased to uphold the judgment and order of conviction passed by the learned trial Court and dismiss the present appeal, the same being devoid of merit. Page 16 of 23 Observations 19. At the outset, it is evident that the learned Sessions Judge, after remand, undertook a fresh and independent appraisal of the entire evidentiary matrix and recorded detailed findings based on the testimonies of the injured eyewitnesses, seizure witnesses, medical evidence, recovery of articles, and the Test Identification Parade conducted by the Judicial Magistrate. The findings are not derivative but are founded squarely on the substantive evidence on record. 20. The testimonies of P.W.1, P.W.2, P.W.3 and P.W.7 all victims and natural witnesses stand out for their clarity, consistency, and corroborative value. Each of these witnesses has narrated the sequence of events in substantial detail, identified the appellants as members of the armed group that forcibly entered the house, assaulted the inmates, tied and confined them, and removed valuables and household articles. Their presence at the spot is natural and undisputed, and their evidence remained firm even after lengthy cross-examination. Minor discrepancies pointed out by the defence are superficial, do not touch the substratum of the prosecution case, Page 17 of 23 and are rather reflective of natural variations expected from traumatized witnesses recounting a violent night-time attack. 21. The medical evidence furnished by P.W.5 corroborates the injuries sustained by P.W.1 and P.W.2 and supports the prosecution version of assault. The estimated age of the injuries falls well within the timeframe of the incident. The argument that the injuries were simple in nature does not in any manner dilute the prosecution case, as even minimal injuries suffice to prove the use of force and violence in an offence of dacoity. 22. The prosecution case receives further corroboration from the seizure of various articles recovered from the houses of multiple accused persons during investigation. The Test Identification Parade conducted by P.W.8, the Judicial Magistrate was carried out in accordance with established procedure, and P.W.7 correctly identified the articles belonging to the household. The contention that the articles were common household items or that identification by a single witness is inadequate is untenable in law. It is well settled that Page 18 of 23 familiarity of a householder with his own property is a sufficient basis for identification. 23. The appellants have not furnished any plausible explanation for the possession of the seized items. Their evasive answers under Section 313 Cr.P.C. add strength to the prosecution case. The absence of defence witnesses also weakens the appellants’ challenge to the prosecution version. 24. As regards the delay in lodging and forwarding the FIR, this Court finds that the explanation provided by P.W.7 is both natural and convincing. Fear of encountering the accused on the direct route and the decision to take a longer pathway in the dead of night constitute sufficient justification. Moreover, no question was put to the Investigating Officer on this aspect; no adverse inference can therefore be drawn. The settled legal position, as reaffirmed in Pattipati Venkaiah (supra), is that mere delay, when satisfactorily explained, cannot by itself erode the credibility of the prosecution. 25. The core plea of false implication on account of prior enmity is equally unconvincing. While the existence of enmity is admitted, it Page 19 of 23 furnishes a possible motive for the accused to commit the offence rather than for the victims to falsely implicate several co-villagers in a grave charge of dacoity. The evidence of the prosecution witnesses has been scrutinized carefully with due caution and found to be cogent, credible, and corroborated on all material particulars. Conclusion 26. On an overall conspectus, this Court finds no material infirmity, perversity, or illegality in the approach or findings of the learned trial Court. The prosecution has proved the charges under Sections 395 and 457 IPC beyond reasonable doubt, and the defence has not been able to create even a shadow of uncertainty sufficient to dislodge the conviction. 27. Having considered the rival submissions and upon a meticulous re-examination of the entire evidence and materials available on record, this Court is of the view that the appellants have failed to make out any ground warranting interference with the well-reasoned judgment of the learned trial Court. In view of that, this Court is of the considered opinion that the appeal is devoid of merit. Page 20 of 23 28. Learned Counsel for the appellants at this point makes an additional submission that the appellant nos. 2 and 3 have already expired during the pendency of the proceedings, and the remaining appellants are now of significantly at advanced age. Appellant no. 4 is presently about 88 years old, and appellant no. 5, who was only 18 years of age at the time of the incident, is now approximately 61 years old. It was urged that all surviving appellants suffer from age-related physical infirmities, and that subjecting them to a sentence of rigorous imprisonment for seven years at this stage of their lives would be unproductive, medically burdensome, and contrary to the principles of reformative and humane sentencing. It was further submitted that having regard to the compelling mitigating circumstances, including the age of the appellants, their prolonged exposure to litigation for over four decades, and their unblemished conduct during this entire period, this Court, in exercise of its appellate jurisdiction, is fully empowered to modify, reduce, or suitably alter the substantive sentence imposed by the learned trial Court. Page 21 of 23 29. In light of the aforesaid submissions advanced on the question of sentence, and upon due consideration of the advanced age of the surviving appellants, their prolonged exposure to the rigours of the criminal process for over four decades, as well as the mitigating circumstances placed on record, this Court deems it appropriate to interfere with the quantum of sentence. Accordingly, while upholding the conviction of the appellants for the offence punishable under Section 395 of the I.P.C., the substantive sentence of rigorous imprisonment is reduced to a period of one year. No separate sentence is awarded for the offence under Section 457 of the I.P.C. The period of sentence already undergone by the appellants shall be set off in terms of Section 428 Cr.P.C. However, in order to balance the ends of justice, the appellants are directed to pay a fine of Rs.10,000/- (Rupees Ten Thousand) each within a period of three months, which shall be disbursed to the victims or their legal representatives in accordance with Section 357 Cr.P.C. It is made clear that in the event of default in payment of the fine, the consideration extended by this Court for reduction of the substantive sentence shall stand withdrawn, and the appellants shall Page 22 of 23 be liable to undergo the sentence as originally awarded by the learned Trial Court. The convict-appellants shall appear before the learned Trial Court within one month from today to serve the remainder of the modified sentence, failing such appearance, they may be taken into custody in accordance with law. 30. In the result, the appeal, insofar as it challenges the conviction, stands dismissed. The appeal is, however, conditionally allowed to the limited extent of modification/reduction of the sentence as indicated above. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 9th Day of December, 2025/Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 12-Dec-2025 10:46:46 Page 23 of 23