The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 283 of 1994 (In the matter of an application under Section 374 (2) of Criminal Procedure Code) Kuna Das and another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. D.P. Dhal, Senior Advocate For the Respondent : Ms. Sarita Moharana, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 28.10.2025 : Date of Judgment: 11.11.2025 S.S. Mishra, J. The present Criminal Appeal is conjointly preferred by two appellants challenging the judgment and order dated 29.07.1994 passed by the learned Additional Sessions Judge, Bhadrak
Legal Reasoning
in Sessions Trial No. 54/12 of 1993 (arising out of G.R. Case No. 645 of 1992) convicting them for offence under Section 304 Part-II of IPC and sentenced them to undergo R.I. for three years. 2. The prosecution report in the present case narrates that on 17.06.1992, P.W.9 a Gramarakhi and P.W.10, a Police constable were deputed to village-Haladia to direct the persons complained against them to meet the Police Officer before whom P.W.1 lodged a complaint. On receipt of information that P.W.1 had complained against them, the accused persons held a meeting in a Thakurani Mandap of the village where they decided to take revenge on P.W.1. P.W.2, came to the house of P.W.1 and told the occupants of the house about the meeting. P.W.1 apprehended danger and he escaped from the house through the back door and took shelter in the house of his sister. Thereafter, all the accused persons entered inside the house of P.W.1, and searched him. Kanchan (wife of P.W.1) was throttled to death. She was carried by 6 of the accused person to the Cremation ground, which is at a distance of about 500 cubits from the house of the P.W.1. P.W.2, and P.W.5 (father of p.w.2) and P.W.8 (mother of P.W.2) who are neighbour of P.W.1 were assaulted by five of the accused persons. Sometime thereafter, Jagabandhu Parida (P.W.3-son of P.W.1) met P.W.1 and told him that the accused persons surrounded the house, assaulted parents of P.W.1 and carried Kanchan to the village burrial ground. He further stated that Kuna Page 2 of 9 Das and Laxmidhar Patra had caused death of Kanchan by throttling her and that Bhaskar Patra (P.W.5), and Saraswati Patra (P.W.8) had been assaulted. On receipt of the information from P.W.3, P.W.1 came to village burrial ground, where he found his wife-Kanchan was lying dead. P.W.1 came to Ghanteswar Police Out Post and submitted a written report-Ext-1 before P.W.12, Assistant Sub-Inspector of police attached to Ghanteswar Police Out Post. 3. On the basis of the aforementioned allegations FIR was registered, investigation was conducted and charge sheet was filed against the appellants and on their stance of complete denial and claim for trial, they were put to trial after charges were framed. 4. To establish the charges, the prosecution examined twelve witnesses and exhibited as many as sixteen documents. P.W.1 is the informant, whereas P.W.2 was a witness who informed regarding the motive of the accused persons to commit the offence and regarding the decision taken in the meeting prior to the occurrence. P.W.3, is the son of the informant and an eye-witness to the assault. P.W.4 is the father of P.W.1 (informant), who stated to have received on his person being assaulted by the accused persons. P.W.5 is a co-villager Page 3 of 9 and father of P.W.2. P.W.6 was the doctor of Tihidi P.H.C., who examined the injured persons. P.W.9 was a Gramarakhi, whereas P.W.10 was a constable. P.W.12 was the A.S.I. of Police of Ghanteswar Police Out Post who took preliminary investigation of the case, whereas P.W.11 was the Sub-Inspector of Police attached to Bansada Police Station who took charge of investigation from the A.S.I. and submitted charge sheet after completion of investigation. 5. The learned trial court after analysing the entire evidence on record individually accorded the finding regarding the guilty of the accused persons and passed a very detailed and exhaustive judgment. Paragraph-12 of the judgment will give a clear idea as to how the learned trial court has individually appreciated the evidence vis-à-vis each accused persons to the following effect:- “12. Now it is to be seen we whether accused Laxmidhar Patra and Kuna Das are to be convicted under sec. 302 Indian Penal Code or under any other offence. Similarly, it'is to be examined whether accused Laxmidhar' Mahakud, Santha Patra, Duryodhan Das, Kapila Tirpathy and Ramesh Das would be held liable under section 302 Indian Penal Code or under any other offence for causing the death of the deceased with the aid of section 149 Indian Penal Code. It is in the evidence that accused Kuna Das and Laxmidhar Patra throttled the deceased while she was being carried by accused Laxmidhar Mahakud, Santha Patra, Duryodhan Das, Kapila Tripathy and Ramesh Das. The prosecution evidence further discloses that the above Page 4 of 9 accused persons with some others went in search of p.w.1 and finding him absent caught hold of the deceased. In my opinion, there is no evidence that accused Laxmidhar Patra and Kuna Das had specifically developed with an intention to kill the deceased. The deceased was not a specifically marked person for her death. She was was caught hold of at random by the above accused persons and accused Kuna Das and Laxmidhar Patra throttled her. So in that case, it cannot be atleast imputed that the accused Kuna Das and Laxmidhar Patra had knowledge that they were likely to cause an injury to the deceased which was likely to cause death. Considering the above circumstance and the accused Laxmidhar Patra and Kuna Das I am of the opinion that a case has been made out against them under section 304 Part-II of Indian Penal Code and they are found guilty under the same offence.” the role played by 6. The appellants are aggrieved by the aforesaid findings recorded by the learned trial court which led to their conviction and sentence. Therefore, they have preferred the present appeal. 7. The appeal is pending since 1994. During pendency of the appeal, it has been informed to the Court by the I.I.C., Bansada Police Station in his report dated 21.07.2025 that appellant no-2- Laxmidhar Patra has expired. Therefore, in the absence of any application under Section 394 Cr.P.C. either by the L.Rs. of the deceased-appellant or by his next friend, the appeal qua him stood abated. 8.
Legal Reasoning
Heard Mr. D.P. Dhal, learned Senior Counsel for the appellants and Ms. Sarita Moharana, learned Additional Standing Counsel for the State. Page 5 of 9 9. At the outset, Mr. Dhal, learned Senior Counsel appearing for the appellants submitted that the offence relates back to an incident happened in the year 1992 and at that point of time the appellant no.1 was in his forties. Three decades have passed by in between and the appellant no.1 is in the last stage of his life being senior citizen. The sentence imposed on him by the learned trial court is three years R.I. He has also pointed out that during trial the appellant no.1 was arrested on 05.07.1992 and was admitted to bail on 09.09.1992. Further, after conviction on 29.07.1994, he was in custody till 25.08.1994 when this Court enlarged him on Bail. Therefore, as under trial prisoner, and subsequently as convict the appellant no.1 has been incarcerated for about four months. 10. This is the position regarding the undergone period. While analyzing the evidence on record, I find no reason to disagree with the findings recorded by the learned trial court. Hence, I affirm the conviction recorded against the appellant no.1 for the offence under Section 304 Part-II. 11. Mr. Dhal, submitted that keeping in view the procrastinated judicial process undergone by the appellant in this case and the ordeal of trial faced by the appellant, he would rather confine his argument Page 6 of 9 to the quantum of sentence alone. He submitted that the incident pertains to the year 1992. The appellant has undergone the rigors of trial for about one year. Thereafter, the appeal was preferred in the year 1994. The appeal has been prolonging to be heard for about 31 years. The appellant, who was in his early forties then is now, aged about more than seventy years. The learned Counsel further submitted that the appellant has no criminal antecedents and no other case of a similar nature or otherwise is stated to be pending against him. Over the years, he has led a dignified life, integrated well into society, and is presently leading a settled family life. 12. In this context, reliance may be placed upon the decision of the Hon’ble Supreme Court in Hussainbhai Asgarali Lokhandwala v. State of Gujarat1, wherein the Apex Court, taking into account the considerable lapse of time since the incident and observing that “much water has flown down the river by this time” while upholding the conviction under Section 304 Part II IPC, deemed it appropriate to modify the sentence to the period of incarceration already undergone by the appellant, in the interest of justice. 1 2024 INSC 609 Page 7 of 9 13. Regard being had to the societal position of the appellant no.1, his clean antecedents, and the fact that the incident had taken place in the year 1992, I am of the considered view that the appellant no.1 is not required to undergo any further imprisonment at this distant point of time. In this context, reliance being placed upon the decision of the Hon’ble Supreme Court in Hussainbhai Asgarali Lokhandwala (supra) wherein the Apex Court, taking into account the considerable lapse of time since the incident and observing that “much water has flown down the river by this time” while upholding the conviction under Section 304 Part II IPC, deemed it appropriate to modify the sentence to the period of incarceration already undergone by the appellant, in the interest of justice. Following the same reasoning, considering that the appellant has already suffered the ordeal of a prolonged trial and appeal for over three decades and has remained in custody for about three months and four days during the trial period, the sentence imposed by the learned trial court is reduced to the period already undergone. However, to balance the ends of justice, the appellant no.1 is directed to pay a fine of Rs.3,000/- (Rupees Three Thousand) within a period of two months, failing which he shall undergo Simple Imprisonment for a period of two months. The Page 8 of 9 fine amount to be deposited shall be disbursed to the victim/L.Rs as per the provision of Section 357 Cr.P.C. 14. Accordingly the Criminal Appeal is partly allowed and
Decision
disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 11th of November, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 12-Nov-2025 14:58:30 Page 9 of 9