The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.122 of 1997 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Jitna Rana and others ……. Appellants -Versus- State of Odisha ……. Respondent For the Appellants : Mr. A. K. Mahakud, Advocate For the Respondent : Ms. Suvalaxmi Devi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 31.07.2025 :: Date of Judgment: 19.08.2025 S.S. Mishra, J. The four appellants consolidately preferred this appeal assailing the judgment and order dated 24.05.1997 passed by the learned Additional Sessions Judge, Sambalpur in S.T. Case No.124/26 of
Facts
1996 arising out of G.R. Case No.88 of 1995, whereby the appellants are found guilty of the offences under Sections 325/34 of I.P.C. and were sentenced to undergo R.I. for two years on that count. 2.
Legal Reasoning
There is no dispute that the wife of Dayanidhi Rana had died for which one Mahendra Rana the cousin of Dayanidhi Page 4 of 14 had called a meeting of the caste people which was going on in the inner courtyard of Dayanidhi on that day at about 6 p.m. there is also no dispute that Mitrabhanu (P.W.6) as well as the accused persons had attended that meeting. There is also no dispute that P.W.8, the son-in-law of Dayanidhi and P.W.9 an olderly caste man of that village had also attended that meeting. According to P.W.8 when the meeting was going on accused Jitan asked Mitrabhanu (p.w.6) as to why he had attended the meeting as he had been boycotted from the caste and so saying Jitna gave slaps to Mitrabhanu and thereafter Mitrabhanu ran towards his house and the accused persons also proceeded to their house. According to p.w.9, Mitrabhanu (p.w.6) assaulted all members present in that meeting except him and thereafter Mitrabhanu (p.w.6) ran away from the meeting and the persons who had been assaulted in the meeting, also chased Mitrabhanu from the meeting. According to Mitrabhanu (p.w.6) in the said meeting accused Jiten objected his attendance stating that he having been boycotted by the caste men how he had, attended that meeting and at that time when he objected in a louder voice, accused Jiten stood up and gave slaps on his cheek and all other accused persons who were related to Jitne rushed towards him to assault and thereafter he (p.w.6) ran away towards his house, but the accused persons chased him and when he reached his house, Dilesuar who was holding a budie and other accused parsons who were holding a lathi each assaulted him and when he obstructed the blow with his left palm, he received injuries on the left palm. According to him, when his father who was sitting in the pindha objected the said assault, they abused his father Bisia in obscene words and on the instigation of accused Jiten all the accused persons including Jitan and Jogeswar dealt blows on the head of his father by means of tangia and lathi and when his father fell down receiving injuries on his head, he rushed towards his father, but the accused persons also rushed Page 5 of 14 towards him to assault, as a result of which being afraid of the accused persons he ran away from the spot and proceeded to Garposh Out Post and submitted a report and thereafter on police requisition he was examined and thereafter when he heard that his father has also been shifted to Garposh P.H.C., he also proceeded to Garposh P.H.C. and attended the treatment of his father and thereafter on the advise of the doctor, Garposh P.H.C. his father was shifted to Govindpur C.H.C. where his father died while receiving treatment. This being the evidence, the occurrence initiated in the village meeting wherein the accused persons had assaulted p.w.6 and they had also chased p.w.5 from the meeting place upto the house of p.w.6 cannot be disbelieved. So far as the assault on p.w.6 and on the deceased Bisia Rana is concerned, p.w.7, who is the wife of p.w.6 has categorically stated that the accused persons assaulted her husband, her father-in-law Bisia Rana objected but the accused persons being annoyed assaulted her father-in-law receiving bleeding injuries on his head fall down whereas her husband (p.w.6) ran away from the spot. This being so, p.ws.6 & 7 are the only eye witnesses to assault on p.w.6 as well as on his father Bisia Rana. The alleged occurrence took place near the house of p.w.6 cannot be disbelieved as the I.O. (p.w.10) has stated that he had seized blood stained earth and sample earth in seizure list (Ext.11) and he had also seized one wooden lathi (M.O.I) at the spot. The accused persons of course have got their respective houses on both sides of the house of p.w.6 on the opposite side of the road. The accused persons have taken the plea that they had been assaulted by p.w.6 and his father Bisia Rrana on 17.11.95 at about 7 p.m. at the house of p.w.6 and they received injuries and reported a case at Garposh O.P. and they were examined by the Medical Officer, Garposh P.H.C. The A.S.I., Garposh O.P. who, has been examined as p.w.10 has stated that on the report of p.w.6 he drew station diary entry no.308 dt.17.11.95 Page 6 of 14 at about 8 p.m. against the accused persons and on the same day on receipt of the report of accused Dileswar, he also drew station diary entry no.309 dt.17.11.95 at 8.30 p.m. against p.w.6 and Bisia Rana and he had sent p.w.6, his father Bisia Rana and all accused persons under his requisition to Garposh P.H.C. for medical examination as they all had received injuries in a sudden quarrel. According to him, his investigation disclosed that in a sudden quarrel between both parties, there was a free fight between them in which all had received injuries. The Medical Officer (p.w.1) has also stated that he ascertained from the police requisition that the persons had received injuries due to sudden quarrel on 17.4,95 at about 7 p.m. P.W.6 was suggested that while he was giving the blow to accused persons, the blow fall on the head of his Father Bisia, as a result of which he received bleeding injuries on his head and fell down. This being so, in a free fight between the members of both the parties, Bisia received injuries on his head and p.w.5 received injuries on his left palm and the accused persons also received injuries on their persons cannot to disbelieved. P.W.1 has opined that injuries of Bisia Rana and injuries of accused Dhanu and Jiten were on vital part of their bodies and the injuries were severe in nature. Only one wooden lathi (M.O.I) was seized as a weapon of offence. According to the prosecution M.O.I was used on causing the injuries on the head of Bisia. But the medical Officer (p.w.1) has stated that M.O.I can also cause all the injuries on the accused persons as well as on Bisia Rana and p.w.6, none of the P.Ws. has stated that blow had been given on the head of Bisia Rana by means of M.O.I. That being so, M.O.I. cannot be treated to be the weapon of offence used in causing the injuries on the head of Bisia. There is no dispute that Bisia received treatment at Garposh P.H.C. and thereafter he was referred to Govindpur C.H.C. where the doctor advised to shift the patient to Rourkela or Sundargarh hospital and while he was stitching the wound. Page 7 of 14 Bisia Rana died in the said night and subsequently the post mortem was conducted by p.w.2 on 19.4.95 at 11.10 a.m. This being so Bisia Rana had died about 10 hours after the above injuries on his head. P.W.s.8 & 9 have stated that when the accused persons chased p.w.6 from the meeting, they were not armed with any weapon. Admittedly, the accused persons had no intention to assault Bisia Rana and he would not have been assaulted had he not objected the assault on his son(p.w.6) in his presence. This being so, the assault on Bisia was never premeditated rather it was given in a sudden fight.” 9. In the present case, although allegedly there are five injured persons but the prosecution preferred to examine only one i.e. P.W.6. P.W.6 in his testimony has narrated the sequence of event as reflecting in the F.I.R. Paragraph-1 of the evidence of P.W.6 is relevant, which is reproduced hereunder:- “I know all the accused persons in dock as they belong to my village. About two years back, on one Monday at about 6 p.m., there was a meeting of the villagers in insider the courtyard of one Dayanidhi Rana. As the wife of Dayanidhi had died the meeting was held in order to decide who will do the Sudhikriya. The meeting had been called by Mahendra Rana the cousin of Dayandhi. I was also at that meeting. All the accused persons were also in that meeting. Jitena Rana in that meeting asked me that as to why I had attended the meeting as I have been boycotted by the caste man as prior to it my mother and my father had assaulted each other. When I protested it in a louder voice to Jitna Rana (accused), Jitene Rana, stood up and gave slaps on my cheek. All other Page 8 of 14 accused persons who are related to Jitena Rana also rushed towards me and went on assaulting. Thereafter, I ran towards my house. The accused persons also chased me till my house, Jitene was holding a thenga, Juge was holding a thenga, Dhanu was holding a thenga and accused Dile was holding a budia. Infront of my house, accused Dhanu dealt a blow by means of thenga, which I obstructed by raising my left palm as a result of which the blow fell down on my left palm caused injury on the root of my left thumb. My father and my son, Jubaraj by then were sitting on the pindha. Seeing assault on me, my father came and protested. Jitena Rana thereafter abused my father saying „Sala Ajatia Hoi Sala Bakbak houchhu, Di Bapa pua ku thane maridia‟. Thereafter accused Jitene and Joge assaulted on the head of my father by means of thenga. At that time, I ran towards my father. My father immediately fell down receiving bleeding injuries on his head. Immediately I ran to Garposh out post. When the accused persons ran towards me for assault.” From the reading of the said injured witness, it is apparent that the prime allegation is indeed directed against the appellant Nos.1 and 2. He has sustained injuries, which is being confirmed by P.W.1, the doctor. P.W.1 has examined seven injured witnesses. Out of them, the appellant Nos.2, 3 and 4 were also examined. All these three appellants have also sustained injuries. Similarly, P.W.1 has also examined the informant (P.W.6). The doctor, P.W.1 stated that P.W.6 has sustained only simple injury. P.W.2 is also another doctor, who had examined the father of the Page 9 of 14 informant Bisia Rana. In his examination, he has found three injures on the persons of the father of the informants and the injuries are:- (i) Lacerated wound on the vertex 4”x ½ x scalp depth. (ii) Lacerated wound on left parietal region 2”x ½”x scalo depth (iii) Lacerated wound on the right occioito parietal of 21/2” x ½ scalp depth.” The said witness (P.W.2) in his testimony has also stated that the injury on the head of the deceased may be possible by wooden stick shown to him in the court if the blow is given with force. 10. P.W.4 is the seizure witness, who has confirmed that the wooden stick was recovered from the house of the deceased. He has also stated in his examination-in-chief that he saw the accused persons assaulting his father-in-law as well as his brother-in-law (P.W.6). The wooden stick which was recovered from the spot i.e. Ext.10 used to inflict the injury caused to the deceased has not been proved beyond doubts, on whose instance, the same has been seized. 11. P.W.3, who is also an eye witness, on the contrary, has deposed in his testimony that he has seen the accused persons running behind P.W.6 but he has not seen anyone of the accused persons holding any weapon Page 10 of 14 or object. Therefore, the seizure of the wooden stick, which is allegedly used for the purpose of assaulting either P.W.6 or his father, is creating a serious doubt. 12. In this case, it is quite apparent on record that the injury sustained by the accused persons as has been narrated by the doctor, P.W.1 has not been explained by any of the prosecution witnesses. It is expected from the witnesses examined by the prosecution that they should come out with the real truth. Unexplained injury sustained by the accused persons creates a serious doubt regarding the trustworthiness of the prosecution witnesses. The prosecution witnesses have not whisper a single word regarding the injury being sustained by the accused persons. The Hon’ble Supreme Court in the case of Lakshmi Singh and others vrs. State of Bihar, reported in (1976) 4 SCC 394 has held as under:- “The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injures which have not been explained by the prosecution, then it will be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, Page 11 of 14 more particularly, when some of these witnesses have lied by standing that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima (supra) there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principal would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on convincing premises.” Similar view has been taken by this Court in the case of Krushna Podha and three others vrs. State of Orissa, reported in (1992) 5 OCR- 529. It is held that non-explanation of the injury sustained by the accused by the prosecution witnesses particularly when there is inimical relationship between the prosecution witnesses and the informant and the fact that there is a free fight between two groups assumes importance. The fact that the accused persons have suffered injuries during the occurrence cannot be doubted from the prosecution version but nothing Page 12 of 14 is coming forth to explain as to who is the author of the injury to the accused person. Therefore, the prosecution evidence creates a serious doubt. The accused persons while answering question No.15 in their statement recorded under Section 313 Cr.P.C. have very particularly taken a stand, which reads as under:- “Q-15 Have you got anything to state about the case and the witnesses? Ans:-The accused-appellant No.2, Dhanu Rana has stated that while returning from the meeting held at Dhanu Rana‟s place, Mitrabhanu has attacked us by way of lathi and injured us. We reported the matter in the police-post and were treated by the doctor. Mitrabhanu has foisted false case against us. I am interested to lead evidence. ” Similar stand has also been taken by the other accused persons in their statement recorded under Section 313 Cr.P.C. 13. In the face of the stand taken by the accused persons that they were attacked by P.W.6, it was obligatory on the part of the prosecution to explain the injury caused to the accused persons but nothing is coming on record to explain such injury caused to the accused persons. Therefore, in the light of the judgments as cited above, the trustworthiness of P.W.6 is doubted. Page 13 of 14 14. In view of the discussion made above, this is a fit case where the appellants are liable to be acquitted on the ground of benefit of doubt. Accordingly, the appellants are acquitted from all the charges under Sections 325/34 of I.P.C. The bail bond furnished stands discharged. 15. With this observation, the CRA is allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 19th August, 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Aug-2025 15:18:50 Page 14 of 14
Arguments
Heard Mr. A. K. Mahakud, learned counsel for the appellants and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State. 3 During pendency of the present appeal, the appellant No.1-Jitna Rana and the appellant No.2-Dhanu Rana were expired. Therefore, the present appeal qua them stood abated. Hence, the present appeal is confined only to appellant Nos.3 and 4. 4. The prosecution case in terse and brief is that on 17.04.1995, the informant-Mitrabhanu Rana (P.W.6) lodged an F.I.R. (Ext.14) inter alia making an allegation that on 17.04.1995 at about 8.00. P.M., one Mahendra Rana called for a village meeting. Jitna Rana, Dileswar Rana, Jogeswar Rana, Dhanu Rana, Mahendra Rana, Dayanidhi Rana and two son-in-laws of Dayanidhi Rana congregated at courtyard of the house of Dayanidhi Rana. In that meeting, Jitna Rana questioned the informant as to why he has attended the meeting even after boycotting him from the society. When the informant protested for the same, the accused persons assaulted him by means of thenga. Somehow, he could escape from the Page 2 of 14 spot and run away towards his house and the accused persons followed him and reached at his house. By hearing the disturbance from outside, the father of the informant Bisia Rana came out. The accused persons have also assaulted him. The father of the informant subsequently expired. Therefore, the accused persons were charge-sheeted for the alleged commission of offences under Sections 302/325/34 of I.P.C. On their stance of denial and claim of trial, they were put to trial. 5. The prosecution in order to bring home charges examined as many as eleven witnesses. Out of whom, P.W.6 was the informant and the son of the deceased. P.W.7 is the wife of P.W.6. P.Ws.3 and 4 are the son-in- laws of the deceased whereas P.Ws.5, 8 and 9 were the independent witnesses of the locality. P.W.1 was the Medical Officer of the Garposh P.H.C., who had examined the accused persons as well as P.W.6 and the deceased on police requisition. P.W.2 was also the Medical Officer of the Govindpur P.H.C., who had conducted post mortem examination of the dead body of the deceased Bisia Rana P.W.10 was the A.S.I. of Garposh out-post, who had received the F.I.R. and investigated into the Page 3 of 14 case. P.W.11 was the I.O. of the case, who had conducted further investigation and submitted charge-sheet. 6. The learned trial Court after analyzing the evidence of the informant (P.W.6) and two doctors (P.Ws.1 and 2) has arrived at a conclusion that the accused persons are not guilty for the offences under Sections 302/34 of I.P.C. rather they are held guilty of the offence under Section 325/34 of I.P.C and on that count, sentence has been awarded. 7. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Sambalpur, the present appeal has been preferred by the appellants. 8. I have carefully gone through the impugned judgment and in the light of the evidence on record and analysed the same. The learned trial Court in paragraph-9 of the judgment has elaborately discussed the evidence on record, which reads as under:- “9. The next point for consideration is whether the accused persons had assaulted Mitrabhanu and Bisia Rana at the relevant time and place by means of lathis and intentionally caused the grievous injuries in the head of Bisia Rana in furtherance of their common intention of causing his death.