The High Court
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THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 222 of 1997 (In the matter of an application under Section 374 of Criminal Procedure Code) Sanu Naik and another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Mohammad Fardish, Advocate For the Respondent : Ms. Sarita Moharana, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 12.08.2025 :: Date of Judgment: 19.08.2025 S.S. Mishra, J. On a quiet day in the year 1995, a household was touched not by joy or laughter, but by an act of cruelty so sudden and senseless that it stilled a life before it had even learned to smile. The victim was an infant, just two months old whose world was no larger than the warmth of her mother’s arms and the simple rhythm of her own breath. In that sanctuary, where every child ought to be safest, the accused-appellant, in the heat of a trifling quarrel, struck the child with a stick and alas, the fragile life slipped away while still cradled in her mother’s embrace. The trial court, years ago, found the accused guilty of this act, yet the shadow of finality has not yet fallen; for this appeal, pending for nearly three decades, stands as a silent testament to the long journey of justice. Time may have blurred the voices of witnesses and dimmed the vividness of memory, but the weight of a young life lost remains unchanged, pressing upon the conscience of this Court as it now turns to decide this appeal. 1. The present appeal arises from the judgment of conviction and order of sentence dated 19.09.1997 passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No.105 of 1995, whereby the
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learned trial Court convicted the accused-appellant No.1 under Sections 304 Part II and 324 of the Indian Penal Code, 1860 (hereinafter referred to as ―the Code‖ for brevity), and both the accused-appellants under Section 323/34 of the Code. Accused-appellant No.1 was sentenced to Page 2 of 20 undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for a further period of three months, for the offence under Section 304 Part II of the Code; and further to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/-, in default to undergo rigorous imprisonment for two months, for the offence under Section 324 of the Code. Additionally, both the accused-appellants were sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/ each, in default to undergo rigorous imprisonment for one month, for the offence under Section 323/34 of the Code. The Court below directed that the sentences awarded to accused-appellant No.1 shall run consecutively. 2. During pendency of the appeal, the appellant No.-2 Makuru Naik has expired. Therefore, the appeal qua him stood abated. The appeal is now confined to Appellant No.1. Prosecution Story 3. The prosecution case, in brief, is that on 25.01.1995 at about 5:00 p.m., the informant, Manaranjan Naik, met accused Sanu Naik and Page 3 of 20 accused Makuru Naik at Khiching market. The informant demanded repayment of Rs. 60/- from accused Makuru, which he had earlier advanced as a loan. Accused Sanu, being a friend of Makuru, replied that the informant was not entitled to the money as he had taken wood from the forest which the accused persons were guarding. The informant denied cutting any wood and pressed his demand, whereupon accused Sanu dealt two fist blows to the informant’s face. At that time, accused Makuru uttered abusive words towards the informant. The informant left the place and ran towards his house. At about 6:00 p.m. on the same day, accused Sanu came to the informant’s house armed with a stick, accompanied by accused Makuru. Accused Sanu declared his supremacy, abused the family members, and entered the house. He assaulted the informant’s wife, Basanti Naik, with kicks and blows. Hearing the commotion, several villagers, namely Sashi
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Dei, Baidhar Naik, Srimati Naik, Jema Naik, and Niranjan Naik, came to the spot and protested. Accused Sanu, however, assaulted them indiscriminately with the stick. Page 4 of 20 At that time, Jaimani, wife of Niranjan Naik, came out of her house holding her two-month-old daughter, Sumita, in her arms and protested against the assault. Enraged, accused Sanu gave three lathi blows to Jaimani, announcing his intention to kill her and her baby. One of the blows struck the child on the head. The accused persons then left as more people gathered. The injured baby was taken to Sukruli hospital, where she succumbed to her injuries at about 8:30 p.m. on the same day. The matter was reported to Raruan Police Station on the same night, and investigation commenced. The Investigating Officer visited the spot, prepared necessary records, held inquest over the dead body, and sent it for post-mortem examination. The doctor opined that the child had sustained a fracture and other internal injuries caused by a blow with a stick or lathi, and that the injuries were sufficient in the ordinary course of nature to cause death. Statement of three key witnesses, namely, Jaimani Naik(mother of the deceased), P.W.4 Suresh Naik(eye-witness) and P.W.3 Kausalya Naik(an injured person) were recorded under Section 164 Cr.P.C. The injured persons were medically examined, and Page 5 of 20 after completion of investigation, charge sheet was submitted against both the accused persons. Accused Sanu Naik was charged under Sections 302 and 324 IPC, while both accused were charged under Section 323/34 IPC. They pleaded not guilty and faced trial. 4. The prosecution in order to establish its case examined as many as 14 witnesses. Out of them, P.Ws. 1, 2 3, 5, 9, 10 and 11 were the injured witnesses, P.Ws. 4 & 12 were the eye witnesses to the occurrence, however they haven’t received any injury like the other eye witnesses. P.W. 7 was the seizure witness, P.Ws. 6 & 13 were the doctors and P.W. 14 was the Investigating Officer. Trial Court Judgement 5. While appreciating and analysing the evidence available on record, the learned trial Court arrived at certain specific findings. For the sake of clarity and ready reference, the said findings, as recorded by the trial Court, are reproduced herein below in its entirety: 10. No doubt the mother of the girl Jaimani has stated before the court that accused Sanu was shouting to kill her Page 6 of 20 statement before as well as her baby, which is not her version under Ext. 17 while giving the Magistrate on 10.2.95.According to her statement, the blow fell on her daughter, as she turned to receive the second blow. Accepting the version under Ext. 17, it can never be said that the accused had no knowledge of causing death while beating a woman by means of a stick carrying a baby in her hands of two months only. The injury report of Jaimani shows injuries on her upper limb as well on her lower limb. Here I may mention the illustration of the leamed counsel. In the said illustration, the pick-pocket was not aware of a loaded gun in the pocket of a man, which he wanted to pick. Therefore, he is not responsible for the death of the man for the accidental shot. In the instant case, the occurrence progressed at the dusk of the day in the locality where both the accused reside to be witnessed by all the neighbours. The accused Sanu has already attained 36 years and not in his teen. Further the accused is quite literate to sign in English and it is expected that he knew the probable consequence of the injury which he may inflict on the baby incidentally. So, accused could have abstained from everything which is at all likely to cause death. The possibility of death of a two months child is very likely by an accidental blow by a stick while a lady is beaten with a baby in her arms. Therefore, the knowledge that it is likely to cause death must be attributed to accused Sanu. So, he is guilty US 304 Part II, I.P.C. for causing the death of Sumita instead of Under Sec. 302 I.P.C. and I convict him thereunder at all likely to cause death. 11. Accused Sanu Naik is further found guilty Under Sec 324 I.P.C. for assaulting all other injured persons by means of a stick and I convict him thereunder. 12. Both accused Sanu Naik and Makuru Naik have been charged Under Sec. 323/34 I.P.C. The evidences of P.ws, 1,8 and 12 are cogent and trustworthy. During the first occurrence at Khiching market, while the accused Sanu Naik delivered the fist blows to P.W.1 Manaranjan Naik, the other accused Makuru Naik was saying SALA KU AHURI BADA". The doctor found a bruise on the Chin of Page 7 of 20 being accomplice Manaranjan Naik under Ext. 12, who examined him on 26.1.95 at 5.15 P.M. Immediately after the first occurrence at Khiching market, P.W. 1 narrated about the incident to his wife P.W.8. The testimony of both the witnesses finds corroboration from the evidence of P.W. 12, who saw the occurrence of dealing the fist blows to P.W. 1( Manaranjan Naik), at Khiching market. The very presence of accused given an Makuru Naik encouragement, support and protection to accused Sanu Näik for actually committing the act. Section 34 émbodies the common sense principle that if two or more persons intentionally do a thing jointly it is just the same, as if each of them had done it individually. Here, the factual aspects shows accused Makuru's presence not only at Khiching market, but also in the place where subsequent occurrence of assault on the witnesses & finally resulting in the death of Sumita took place. So, both the accused persons are guilty Under Section 323/34 I.P.C. for assaulting P.W.1 at Khiching market, and I convict both of them thereunder. has Aggrieved by the aforementioned finding recorded by the learned trial Court which led to the conviction and sentence passed against the appellants they have filed the present appeal. 6. Heard Mohammad Fardish, learned Counsel for the appellants, and Ms. Sarita Moharana, learned Additional Standing Counsel for the State. Page 8 of 20 Examination of evidence 7. During the course of hearing, this Court has taken on record, in detail, the submissions advanced by the learned counsel appearing for the appellants as well as for the respondent–State. The Court has meticulously examined and analysed all the evidence available on record. At the outset, while considering the deposition of P.W.2, the mother of the deceased, Jaimani Naik, this Court notes that she has categorically deposed that appellant No.1, Sanu, dealt blows upon the deceased child with a thenga. For the sake of ready reference, her statement is reproduced herein below: “The occurrence took place on a Wednesday, evening more than two years back. At that time I was in my house. The accused Sanu and Makaru were doing MAR PIT at that time near our house. I came out holding my child (KAKHEI THILI) Sumita. I told the accused saying “SANU KAKA KAHINKI JHAGADA KARUCHHA". To this the accused told to assault me as well as my child. Accused Sanu gave two stick blows to me. Sanu gave one stick blow to the head of my child. My child lost sense. Both the accused persons ran away.” Page 9 of 20 She stood to her statement even during her cross examination and stated as under: “It is a fact that I have stated before the Magistrate (US 164 Cr.P.C.) that while I was holding my child (KAKHEI THILI), the accused Sanu dealt another blow for which I turned and the blow fell on the head of my child” 8. Proceeding further, the evidence of P.W.4, who was an eye witness is found to be in complete corroboration with the testimony of P.W.2, the mother of the deceased. The relevant portion of his deposition is reproduced for ready reference: “2. At that time I heard some hullah near the house of P.W.1. I saw the accused Sanu was holding M.O.I and was assaulting all indiscriminately. At that time Jaimoni came out with her child. She was holding the baby. She protested. The accused Sanu assaulted, Jaimoni and her child by means of stick. Jaimoni shouted and cried. Both the accused persons ran away.” Likewise, the deposition of P.W.5, the grand-mother of the deceased also lends corroboration to the testimony of the mother of the deceased. The relevant extract is reproduced herein: “2. I heard the cry of Niranjan's wife.i.e. P.W. 2. I went near her. At that time, accused Sanu assaulted me by means of a stick. I was examined by the doctor for my injury. I also saw the accused Sanu dealing lathi blows to my Page 10 of 20 granddaughter and Jaimani. The Lathi blow stuck to the head of my grand-daughter Sumita. We took her to the hospital where she died.” The testimony of P.W.6, the doctor who conducted the post-mortem examination on the body of the deceased, is also found to corroborate the account given by the mother of the deceased. The pertinent portion is reproduced for ready reference: ―No external injury was seen, but one depression fracture of the frontal bone extending from the centre of the head towards left fore-head measuring about 2½” from the towards right parietal bone centre point extending measuring 2” and towards right fore-head measuring 2”.” Similarly, P.W.8, the wife of the informant, has deposed in line with the other prosecution witnesses, and her statement also finds corroboration with their evidence. The relevant part of her testimony is reproduced herein: “5. At that time Jaimoni came with her child Sumita and protested the action of the accused Sanu. Thereafter the accused Sanu gave two lathi blows to Jaimani, so also one blow to the head of the child saying "TA CHUA KU MARI KI MARAI DEBI”. The child lost her sense. 6. We took her to Sukruli hospital, where she died.” Page 11 of 20 P.W.11, another witness who happens to be a neighbour of the deceased, has also given a version that is in consonance with the testimonies of the above witnesses. The relevant extract is reproduced for ready reference: “3. At that time Jaimani came out with her child Sumita. The accused Sanu also dealt blows by M.O.I to Jaimani and her child. The child lost sense and was taken to the hospital, where she died.” 9. In addition to the oral depositions before the learned trial Court, this Court has also taken into account the statements of (i) Jaimani- mother of the deceased Sumita, (ii) Suresh, and (iii) Kausalya recorded under Section 164 of the Code of Criminal Procedure. These statements are also testimony to the fact that appellant No.1, Sanu, dealt lathi blows to the infant, which ultimately proved fatal. The said statements which were originally in Odia are translated are reproduced herein for ready reference: Jaimani stated: “In that Sanu shouted in abusive language and hit blows with a stick. It hit the left part of my waist. I was holding my child in my arms, while Sanu hit the second blow I turned Page 12 of 20 around. The blow hit the head of my child. My child was only two months old, hit by the blow portion of her head went inside. I took her to the hospital. My child died.” Suresh stated: “I was at home during the evening hours of 25.01.1995. Hearing commotion I ran towards the spot. Sanu was hitting Jaimani with a stick. Makuru was saying “BADA BADA”. The blow of Sanu hit Jaimani’s child. Jaimani’s child started crying. She was taken to the hospital. She died there.” Kaushalya stated: “On last 25.01.1995 during the evening, Sanu hit everyone with a stick. Sanu pressing my neck, said me abusive languages. Jaimani’s child died in Sonu’s beating.” The learned trial Court, upon due consideration of the evidence, found it appropriate to convict the appellants under Section 304 Part II of the Indian Penal Code, instead of Section 302 thereof. Analysis and Reasoning 10. Having thus delineated the statutory contour of Section 304 Part II, this Court now turns to the evidentiary matrix. The testimony of P.W.2 (mother of the deceased) squarely attributes the thenga blows to appellant No.1, Sanu. Her evidence is clear, cogent and natural, Page 13 of 20 reflecting a witness with first-hand knowledge of the occurrence and without demonstrable animus. This ocular account receives material corroboration from P.W.4 and P.W.5, whose depositions are consistent on the substratum of the prosecution case namely, the assault by appellant No.1 and the participation of the co-accused in furtherance of a common design. The medical evidence of P.W.6, the doctor, who conducted the post-mortem, finds corroboration with the eyewitness version by explaining the nature, seat and possible cause of the fatal injuries. Crucially, the medical opinion does not introduce any doubt that would dislodge the prosecution’s case; rather, it furnishes an independent scientific anchor connecting the injury pattern with forceful thenga blows. P.W.8 (wife of the informant) and P.W.11 further reinforce the prosecution narrative on material particulars; their testimonies are not only inter se consistent but also consistent with P.W.2 on the core facts, thereby enhancing the overall credibility of the prosecution version. Page 14 of 20 11. In addition, the statements recorded before the Magistrate under Section 164 Cr.P.C. of (i) Jaimani (mother of the deceased Sumita), (ii) Suresh, and (iii) Kausalya, though not substantive evidence by themselves but operate as strong corroborative material to the in-court depositions. The narrative contained therein is harmonious with the ocular and medical evidence and specifically fortifies the attribution of thenga blows by appellant No.1, which proved fatal to the infant. 12. On the question of culpability under Section 304 Part II, the record does not disclose pre-meditation, prior enmity of a nature suggesting a design to kill, or any conduct indicative of a settled intention to cause death or to inflict an injury sufficient in the ordinary course of nature to cause death. The incident, as borne out from the testimonies, arose out of a trivial provocation; the weapon used was a thenga; and the prosecution case, at its highest, establishes knowledge on the part of appellant No.1 that his act was likely to cause death-particularly considering the vulnerability of the infant victim but falls short of proving the requisite intention for murder. The learned trial Court, therefore, correctly located Page 15 of 20 the offence within Section 304 Part II, where ―knowledge‖ rather than ―intention‖ constitutes the mental element. 13. As regards the conviction under Section 324 I.P.C. against appellant No.1, the manner of use of the thenga, the body part(s) targeted, and the resulting injuries justify the finding that hurt was voluntarily caused by means which, in the circumstances of use, was likely to cause death. The medical testimony and the consistent ocular accounts adequately meet the threshold of proof for this lesser but distinct offence. 14. Turning to the conviction of both appellants under Section 323 read with Section 34 I.P.C., the evidence demonstrates concerted action: presence at the scene, participation in the assaultive episode, and acts contributing to the infliction of simple hurt on other witnesses. The convergence of multiple testimonies—free from material contradictions or improvements on core facts—supports the inference of a common intention to commit the assault, thereby satisfying the doctrinal requirements of Section 34. Page 16 of 20 15. The defence has not been able to expose any infirmity going to the root of the prosecution case. Minor discrepancies, if any, are of the kind naturally attendant on truthful eyewitness accounts and do not impeach the central narrative. The chain formed by (i) consistent ocular evidence, (ii) medical corroboration, and (iii) supportive Section 164 statements remains unbroken. In appellate review, this Court finds no perversity in the appreciation of evidence, no misapplication of legal principles, and no omission of material circumstances that would warrant interference. The judgment of conviction recorded by the learned trial Court is, therefore, unassailable and merits affirmation. Submission by the learned counsel for the appellants 16. Learned counsel for the appellant submitted that the incident in question dates back to the year 1995, at which time the present appellant was approximately 36 years of age. It is urged that, with the passage of nearly three decades since the occurrence, the circumstances surrounding the appellant’s life have materially changed. In support of his plea for leniency, reliance is placed on the judgment of the Hon’ble Supreme Page 17 of 20 Court in Gurdeep Singh V. Jaswant Singh and Others1, wherein the Hon’ble Court held as follows: “5. In the result, this appeal succeeds and is allowed in part. The conviction of Appellant 1 is altered from Section 302 IPC to 304 Part II IPC. The incident is of 1978. The appellant is on bail for nearly last 10 years. In these circumstances, his sentence is reduced to the period already undergone. He is on bail. His bail bonds are discharged.” Relying upon the above dictum, learned counsel has prayed for a lenient view to be taken in the matter of sentence, citing, inter alia, the present age of the appellant. He further submitted that the appellant has already undergone a period of 78 days in custody. It is also submitted that the appellant may be extended the benefit of Section 4 of the Probation of Offenders Act, 1958, and Section 360 of the Code of Criminal Procedure, 1973, if this Court deems it fit and proper to do so. Conclusions 17. In view of the aforesaid submissions, this Court has considered the applicability of the provisions of the Probation of Offenders Act, 1958, 1 1992 Supp (3) Supreme Court Cases 103 Page 18 of 20 and Section 360 of the Code of Criminal Procedure, 1973. Having regards, however, to the nature and gravity of the offence, which resulted in the death of an infant, and the grievous circumstances in which the incident occurred, this Court is not inclined to extend the benefit of the said provisions to the appellant. Nonetheless, taking into account the age of the appellant and the considerable lapse of time since the occurrence, this Court deems it appropriate to reduce the sentence imposed upon him under all the sections of conviction to a term of six months’ rigorous imprisonment, with the period already undergone by him in custody being set off against the said term. In addition, this Court also imposes a fine of Rs.10,000/- on the appellant, to be paid to the mother of the deceased in accordance with Section 357 of the Code of Criminal Procedure. Default in payment of fine as awarded shall entail the appellant to undergo further R.I for 1 month. The appellant has been directed to be released on bail by the order of this Court dated 07.10.97. The appellant shall surrender within a period of four weeks to undergo sentence as awarded hereinabove, Page 19 of 20 failing which, he shall be taken into judicial custody by the learned trial Court on issuing appropriate process. 18. Accordingly, the Criminal Appeal is partly allowed. The High Court of Orissa, Cuttack Dated the 19th August, 2025/Ashok (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 21-Aug-2025 10:22:37 Page 20 of 20