The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 205 of 1999 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Jogi @ Jogendra Jena ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mrs. Sartika Das, Advocate For the Respondent : Ms. Suvalaxmi Devi, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 04.09.2025 :: Date of Judgment: 28.10.2025 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 24th August, 1999, passed by the learned Additional District and Sessions Judge, Nayagarh, in S.T. Case No.128/86 of 1997 arising out of G.R. Case No. 414/96, convicting the appellant under Section 325 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for four years and to pay a fine of Rs.5,000/-, in default to undergo further rigorous imprisonment for one year. The learned trial Court also directed that the fine amount, if realized, be paid to the widow of the deceased as compensation. 2.
Legal Reasoning
Heard Mrs. Sartika Das, learned counsel for the appellant and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State. 3. The prosecution case, in brief, is that on 28.09.1996 at about 8 P.M. in village Bilamanapur under Odagaon Police Station, there was a quarrel between the appellant accused Jogendra Jena and one Rabindra Rout (P.W.1), the son of the deceased Banambar Rout. Initially, according to the FIR (Ext.1) lodged by Duryodhan Rout (P.W.2), the quarrel arose when P.W.1 and one Kalucharan Rout were playfully throwing sand on each other near their house, and some of it accidentally fell on the accused, who was sleeping nearby. The accused, being Page 2 of 14 annoyed, slapped P.W.1 twice. Hearing the cries of P.W.1, his father Banambar (the deceased) and brother Santosh (P.W.4) came to the spot, whereupon a further altercation ensued, resulting in the accused dealing a lathi (Katua Thenga) blow on the chest of Banambar Rout. The deceased fell down unconscious and succumbed to his injuries while being taken to Odagaon for treatment. 4. During the trial, however, the prosecution witnesses slightly modified the genesis of the occurrence, stating that the dispute arose not due to throwing of sand, but because the accused, when not allowed to join a card game being played by P.W.1 and others, became enraged and slapped P.W.1. When the deceased came out to question the accused, the latter dealt a blow on his chest with a wooden stick (Katua Thenga). 5. On the oral report of P.W.2, A.S.I. Arjun Tripathy (P.W.11) registered Odagaon P.S. Case No.89 dated 29.09.1996 under Section 302 IPC and took up investigation. Subsequently, the charge of investigation was handed over to P.W.10, the Circle Inspector, who completed the investigation and submitted charge-sheet against the accused. Page 3 of 14 6. The plea of the accused was one of complete denial. Rather the stance was that the deceased accidentally fell upon a wooden peg fixed in the ground for tying cattle and sustained injuries, leading to his death. No defence evidence was adduced. 7. The learned trial Court, upon consideration of the evidence of eleven prosecution witnesses, held that the prosecution had failed to prove intention on the part of the accused to commit murder. However, as the post-mortem report revealed fracture of the 9th and 10th ribs and congestion of the spleen, the learned Court concluded that the accused had voluntarily caused grievous hurt to the deceased by a blunt weapon, which resulted in death. Relying upon the decision in Lokanath Behera v. State of Orissa, reported in 57 (1984) C.L.T. 312, the trial Court convicted the accused for the commission of offence under Section 325 IPC and imposed the sentence. The relevant portion of the aforesaid judgment is extracted herein below for the sake of convenience:- “13. It was argued by the learned Defence counsel that as per the prosecution case, there was a sudden quarrel between the accused and P.W.1 and the deceased intervened in the matter. The assault was Page 4 of 14 made by a piece of wood (Katua) on the chest. If there would have been any intention to commit murder, the accused would have assaulted on the vital part of the body. But the assault was made on the chest. Only one blow has been given and there is no attempt even to give any second blow. There is no evidence of about any previous ill feeling between the parties and the occurrence took place on the spur of the moment. In view of such evidence, according to me, at best the offence under section 325 of the I. P. C. can be said to be made out in as much as the evidence of the Doctor P.W.9 is that only two ribs fracture leading to conjestion of spleen in support of submission, he relies on a decision reported in 57 (1984) C.L.T. 312 in the case of Lokanath Behera -Vrs- State of Orissa. In view of his such submission, I am to scrutinise the reported decision to see how far the same can be applied in the given facts and circumstances of this case. ………The said view of the Hon’ble Court has all force in the given facts and circumstances of the case. Similarly, the assault of the accused by dealing a fatal blow on the deceased since caused fracture of his ribs which pierced into the spleen and rupture resulting the death of the deceased amounts his such overt act causing grievous hurt within the purview of section 320 of the Code, which is punishable under section 325 of the Code. But his such act cannot be clothes either within the purview of section 302 or 304 of the Code. 16. In the result and in ultimate analysis of the materials on record, I hold the accused guilty under Page 5 of 14 section 325 of the I.P.C for voluntarily causing grievous hurt to the deceased and convict him thereunder.” 8. Aggrieved by such findings recorded by the learned trial Court, which led to the conviction and sentence, the sole appellant filed the present appeal. However, the State did not prefer any appeal complaining the reduction of offence from offence under Section 302 of I.P.C. to 325 of I.P.C. 9. Ms. Das, learned counsel for the appellant, contended that the conviction under Section 325 of I.P.C. is unsustainable in law and fact. It was argued that the genesis of the occurrence, as stated in the FIR, materially changed during trial, from a quarrel arising out of throwing sand to one concerning a card game which renders the prosecution version doubtful. The evidence of P.Ws.1, 2 and 4, being close relatives of the deceased, lacks independent corroboration and is inconsistent with the initial version. The learned trial Court itself recorded that P.Ws.2 and 4 were not eyewitnesses to the assault and disbelieved the alleged dying Page 6 of 14 declaration. Despite this, the Court relied upon the same set of evidence to convict the appellant, which is contradictory and legally untenable. 10. It was further urged that the medical evidence does not conclusively support the prosecution story. P.W.9, the doctor, has opined that the injuries found could also be caused by a fall on a wooden peg, which tallies with the defence version. The alleged weapon of offence was neither seized nor shown to the doctor for verification, creating a serious lacuna in the prosecution case. In absence of reliable eye- witnesses, corroborative evidence, or recovery of weapon, the prosecution has failed to establish guilt beyond reasonable doubt. The appellant, therefore, deserves the benefit of doubt and consequent acquittal. 11. Ms. Devi, the learned Additional Standing Counsel appearing for the State supported the judgment of conviction, submitting that the prosecution has proved its case beyond reasonable doubt through the consistent and cogent testimony of P.Ws.1, 2 and 4, who are natural witnesses being present at the spot during the occurrence. Their evidence Page 7 of 14 is fully corroborated by the medical evidence of P.W.9, who found fracture injuries on the ribs of the deceased consistent with a lathi blow. The trial Court, after analyzing the evidence, rightly held that though the offence of murder under Section 302 IPC was not made out due to lack of intention to cause death, the offence under Section 325 IPC stood clearly proved. 12. It was further argued that the mere fact that the eye-witnesses are related to the deceased does not render their evidence unreliable, particularly when their testimony remains unshaken during cross- examination and there is no motive for false implication. Non-seizure of the weapon or non-examination of independent witnesses is not fatal when direct and trustworthy ocular evidence is available. Minor discrepancies in the sequence of events do not affect the core of the prosecution story. Hence, there being no illegality or infirmity in the impugned judgment, the appeal merits dismissal. 13. I have carefully considered the submissions advanced by the learned counsel for the appellant as well as the learned counsel for the Page 8 of 14 State, and perused the entire lower court records, including the depositions of the prosecution witnesses, the medical evidence, and the reasoning assigned by the learned trial Court. 14. The entire case of the prosecution hinges upon the evidence of P.Ws.1, 2 and 4. P.Ws.1 and 4 are the son of the deceased whereas P.W.2 is the elder brother of the deceased. As discussed above, the narration of the prosecution story substantially varied from the initial version reflecting in the F.I.R. The learned trial Court has carefully analyzed this aspect of the matter and recorded the following findings:- “8. On looking to the evidence of P.W.1 and the occurrence narrated in the F.I.R., I have opined that the genesis of the occurrence are found discrepant on the material particulars of the case in the F.I.R. lodged by P.W.2 it was stated that the quarrel stated to have been ensued due to throwing of sand by Rabi (P.W.1) which fell on the accused, but during trial, it was stated by P.W.1 that as the accused was not allowed to play cards, he became enraged and slapped P.W.1 whereafter the quarrel took place leading to assault. In the F.I.R. it is mentioned that Dandapani Jena, Kabira Jena, Narayan Jena and Ghana Behera were present at the time of occurrence and the quarreling parties, but none of them have been examined by the prosecution. Further, in the evidence of P.W.2, in Para No.7 of cross examination stated that ten to twelve to separate they were trying Page 9 of 14 persons of his village were standing when the quarrel was going on, but none of them have been examined by the prosecution. The witnesses examined were said to be the eye witnesses to the occurrence are all related to the deceased. P.Ws.1 & 4 are the sons and P.W.2 is the younger brother of the deceased. It has been held in a decision reported in A.I.R. 1978 (S.C.) Page 59 in the case of Veer Singh vs. State of U.P. that “Where all the eye witnesses examined by the prosecution had serious animousity against the accused and were interested in implicating independent the accused and neither witnesses were examined nor any reasonable explanation was given by the prosecution, the court would be justified in drawing an adverse the prosecution”. Keeping in view the law propounded in this decision, I am to decide this case. Although, the witnesses present at the time of the occurrence have been named in the F.I.R. none of them have been examined nor the persons standing at the time of quarreling were also examined. The prosecution intends to prove the charge against the accused through the evidence of P.Ws.1, 2 & 4 who are none-else than the kith and kins of the deceased. In the circumstances, it is to be seen that how far their evidence is clinching to establish the charge against the accused.” inference against 15. I have gone through the evidence of all the three witnesses. I fully agree with the findings recorded by the learned trial Court. However, it is also true that the analysis of the evidence of the three witnesses illuminate the undisputed fact that in a spur of moment, the accused- Page 10 of 14 appellant has dealt a sudden thenga blow on the chest of the deceased, as a result of which, he fell down and lost his sense and eventually succumbed to the blow. It is also evident from the testimony of the witnesses that the appellant had no intention to cause harm to the deceased which would lead to his death. He had only given one blow on a spur of the moment when a sudden quarrel broke out. There was no premeditating plan or motive to cause such event. This appears to be an unfortunate incident caused due to immediate provocation. That is the reason, the learned trial Court has rightly acquitted the appellant of the charges under Section 302 of I.P.C. The learned trial Court has also analysed the evidence of P.W.5, who was examined by the prosecution to prove the dying declaration of the deceased. The learned trial Court has rightly disbelieved P.W.5 and recorded the following findings:- “10. P.W.5 is a witness who has stated about the dying declaration of the deceased. He has stated that the deceased was telling catching hold of his belly “NANA MARIGALI” and he further told that the accused Jogendra Jena assaulted him. But his such statement cannot be believed for the following reasons that the cross examination he simply states (Para No.3) that the deceased told him that “NANA MARIGALI” and so Page 11 of 14 saying he passed urine and stools and could not say anything more. This statement in his cross examination gives a go-bye to the so-called dying declaration aspect made in chief examination. P.Ws.1, 2 & 4 being related to the deceased and were present near him have not whispered about any such dying declaration by the deceased. According to these witnesses after the assault the deceased fell down on the ground and lost his sense and in that condition, he was shifted to the hospital, in course of which, he died. In view of such evidence, the dying declaration theory cannot be accepted.” No fault could be found from the reasoning recorded by the learned trial Court while appreciating the evidence of P.W.5. 16. From the conjoint reading of the evidence of P.Ws.1, 2, 4 and 9, the only aspect which borne out on record is that the appellant has dealt a thenga blow to the deceased at his chest, which resulted the death of the deceased, which was unintentional. P.W.9, the doctor has also opined that the deceased received the following injuries:- “(i) Bruise 2” x 2” on left 9th and 10th coastal ribs posterior to midaxillary line. (ii) Fracture of 9th and 10th left coastal ribs posterior to midexillary line.” The aforementioned part of the evidence of P.W.9 remained unshaken despite cross-examination. In view of the aforementioned, the Page 12 of 14 inevitable conclusion to be drawn by appreciating the evidence of all the witnesses in unison is that the accused-appellant is guilty of offence punishable under Section 325 of I.P.C. 17. The learned trial Court on the count of the conviction under Section 325 of I.P.C. has sentenced the appellant to undergo R.I. for four years with a fine of Rs.5,000/-, in default to make the payment, the appellant was also sentenced to undergo R.I. for one year. 18. On the point of sentence, Ms. Das, learned counsel for the appellant submitted that the incident relates back to the year 1996. At that point of time, the appellant was 28 years of age. At present, he is 57 years of age and leading a respectful life along with his family. She 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. Sending him to jail after such a long gap would serve no real purpose and may instead cause unnecessary hardship to him and his family. She also submitted that the Page 13 of 14 appellant has already undergone custody period of three months seven days. In that view of the matter, Ms. Das, learned counsel for the appellant prays that a lenient view should be taken. 19. Considering all the aforementioned mitigating circumstances, the sentence awarded by the learned trial Court stands modified to the sentence the appellant has already undergone. However, the fine amount is enhanced to Rs.25,000/- (Rupees twenty-five thousand), in default, to pay the fine, the appellant shall undergo R.I. for one and half months. The fine amount to be deposited shall be disbursed to the wife of the deceased or his son (P.W.1) in accordance with the provision of Section 357 Cr.P.C. 20. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 28th October, 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 31-Oct-2025 10:41:26 Page 14 of 14