The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.188 of 2003 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Jayadev Pradhan ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. P.K. Maharaj, Amicus Curiae For the Respondent : Mr. Raj Bhusan Dash, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 19.08.2025 : Date of Judgment: 09.09.2025 S.S. Mishra, J. The sole appellant Jayadev Pradhan has assailed the judgment of conviction and order of sentence dated 05.07.2003 passed by the learned 1st Adhoc Additional Sessions Judge, Puri in Sessions Trial Case No.52/68/89 of 2002/1999, whereby the appellant has been convicted for the offence punishable under Section 324 of the IPC and on that count, he has been sentenced to undergo R.I. for one year and to pay fine of Rs.2,000/- (Rupees two thousand), in default of payment of fine, to undergo further R.I. for three months. 2. Since the counsel for the appellant remained consistently absent,
Legal Reasoning
therefore, on 22.07.2025, this Court requested Mr. P.K. Maharaj, Advocate to assist this Court in the matter in the capacity of Amicus Curiae. 3. Heard Mr. P.K. Maharaj, learned Amicus Curiae appearing for the appellant and Mr. R.B. Dash, the learned Additional Standing Counsel appearing for the State. 4. The prosecution case in brief and terse is that on 29.12.1996, four accused persons including the present appellant came in front of the house of one Bidyadhar Parida (P.W.4) of village Beleswarpatna and told him to come with them to the nearby club house of the aforesaid village. The said Bidyadhar Parida accompanied the four accused persons and all of them reached in front of the club house. Suddenly, the appellant-accused brought out a bhujali, which was kept concealed inside his shirt and dealt a blow on the left side neck of P.W.4 causing Page 2 of 12 cut injury with bleeding. The aforesaid occurrence was witnessed by Kalu Parida, Rajkishore Parida, Dhuna Parida and others. It is further alleged that, the accused persons have also criminally intimidated to kill P.W.4. When the nephew of the informant along with others intervened, the accused persons took their heels. The injured P.W.4 after sustaining injury on his neck fell down there and lost his sense and was shifted to the D.H.H., Puri for treatment. Hence, the F.I.R. 5. After investigation, the charge sheet was filed against four accused persons including the present appellant for the offence punishable under Section 307/34 of the IPC. 6. The prosecution in order to bring home charges under Section 307/34 of the IPC against four accused persons, examined as many as 11 witnesses. Out of the said 11 witnesses, P.Ws.1 and 2 have not supported the prosecution case and they were declared hostile. P.W.3 was the doctor, who examined the injured and the injury report was exhibited as Ext.1. P.W.4 was the injured. P.W.8 was the I.O. of the case. P.Ws. 5, 6, 9 and 10 were the eye witnesses to the occurrence whereas P.W.11 was a Page 3 of 12 post-occurrence witness, who has not supported the prosecution case. P.W.7 was the informant, who has proved the F.I.R. 7. Learned trial Court, while relying upon the evidence of P.W.4, the injured witness and P.Ws. 5, 6, 9 and 10, the eye witnesses those who have supported the prosecution case, have arrived at the following conclusion: “11. The crucial question for consideration is as to whether on the basis of the aforesaid evidence it can safely be stated that the accused persons have committed the offence U/s. 307/34 of the I.P.C. In order to attract the ingredients of Section 307 of the I.P.C., it is necessary to establish that if the victim would have met his death the offence would have been one U/s. 302 of the I.P.C. Prosecution to make out facts and circumstances as envisaged by Section 300 of the I.P.C. If the ingredients of Section 300 of the I.P.C. are wholly lacing there can be no conviction U/s. 307 of the I.P.C. Unless it can be said that the intention or knowledge of the accused was to cause such bodily injury as would come within one of the four clauses of Section 300 of the IPC, the accused persons cannot be held guilty of offence U/s. 307 of the I.P.C. I have already pointed earlier that P.W.3 stated in his evidence that the injury which he noticed on the person of P.W.4 is a simple injury and was caused by sharp cutting weapon like Bhujali. It is specifically stated by the doctor that the injury in question is not sufficient to cause the death of a person. The accused persons are four in number and admittedly accused Jayadev was armed with a sharp cutting weapon like Bhujali. If accused Jayadev and his companion accused persons have the real intention to cause the death of the injured then the blow by Bhujali must have been dealt on the head of the injured. There is no evidence that when accused Jayadev assaulted the injured Bidyadhar there was any intervention by any outsider or any witness. If he had the real intention to cause the death then he would have caused several fatal blows on the vulnerable part of Page 4 of 12 the body of the injured by means of said sharp cutting weapon such as Bhujali. With the above background it is to be considered whether the accused persons have really attempted to cause the murder of the injured.” 8. Learned trial Court, on the basis of the reasoning as recorded above, came to the conclusion that except the present appellant, all the three other accused persons those who stood charged for the offence under Section 307/34 of the IPC are liable to be acquitted. Similarly, the learned trial Court has also found the present appellant not guilty for the offence under Section 307/34 of the IPC, however, recorded the conviction against the appellant of the offence under Section 324 of the IPC, inter alia, recording as under: “16. Now it is to be considered when charge was framed U/s.307/34 of the I.P.C. against all the accused persons whether accused Jayadev Pradhan can be convicted U/s. 324 of the I.P.C. for his individual act. In this connection provisions of Section 221 and 222 of the Cr. P.C. is to be looked into. Section 221 and 222 of the Criminal Procedure Code are the two provisions dealing with the powers of a criminal court to convict the accused of an offence which is not included in the charge. In the decision reported in (2001) 20 OCR (SC) at page 363 Shamansaheb M. Multtani v. State of Karnataka, it has been held as follows: “Section 222(1) of the Code deals with a case “when a person is charged with an offence consisting of several particulars”. The Section permits the Court to convict the accused “of the minor offence, though he was not charged with it”. Sub-section (2) deals with a similar, but slightly different, situation. “When person is charged with an offence and facts are proved which reduce it to a minor Page 5 of 12 offence, he may be convicted of the minor offence although he is not charged with it.” What is meant by “a minor offence” for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the Section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lessor sentence can be regarded as minor offence vis-à-vis the other offence.” 17. Keeping in view the principles laid down in the aforesaid decision there is no bar to convict accused Jayadev Pradhan U/s. 324 of the I.P.C. since the offence U/s. 324 of the I.P.C. is a minor offence in comparison to Section 307 of the I.P.C.” 9. The sole appellant, being aggrieved by the judgment of conviction and order of sentence of the learned trial Court, has preferred the present Criminal Appeal. 10. Mr. Maharaj, learned Amicus Curiae submitted that the learned trial Court, by disbelieving the eye witness count from the deposition of P.Ws.5, 6, 9 and 10 have acquitted three co-accused persons. The same set of evidence cannot be relied upon to convict the present appellant for the offence under Section 324 of the IPC. The learned trial Court has also gone wrong by relying upon the evidence of one set of the eye witness by ignoring the version of the other set of the eye witnesses, Page 6 of 12 namely, P.Ws. 1, 2 and 11. He has also taken me to the evidence of the I.O., P.W.8. The I.O. in his cross-examination has stated as under: “4. P.W.4 did not state before me in his previous statement that witness Prasant Kumar Parida, Kelu Parida, Manas Parida, Dhuna Pradhan, Nabakishor Swain and Kasinath Pandi have seen the occurrence. P.W.5 did not state before me that he chased to apprehend accused Jayadev but in vain and he did not state before me that he put a Sua colour Gamuchha on the injury of the injured to check oozing of blood. P.W.5 did not state before me that blood stained Lungi, shirt and Gamuchha of the injured were seized by police. 5. P.W.6 did not state before me that witnesses Dhaneswar Pradhan, Nabakishor Swain, Sadasiv Swain, Raghunath Swain and Brundaban Swain have seen the occurrence of this case. P.W.6 did not state before me that the articles of Ext.2 were seized by police. P.W.7 did not state before me that Rajkishor Parida informed me regarding the occurrence while he was in the garden. P.W.7 did not state before me that he ascertained at the spot from the witnesses Kalu Parida and Dhuna Pradhan that accused Jayadev assaulted on the left neck of Bidyadhar by means of a bhujali causing bleeding injury. It is not a fact that I have not properly investigated the case.” 11. Perusal of the evidence of P.W.8 makes it clear that the so-called eye witnesses those who have deposed against the appellant had not stated the same facts before the police, when they were examined under Section 161 of the Cr. P.C. 12. Mr. Maharaj, learned Amicus Curiae further submitted that P.W.4, the injured witness in his cross-examination has stated that he was injured by the present appellant by a bhujali and sustained bleeding Page 7 of 12 injury. On the spot, there was blood stain. However, in the cross- examination in paragraph-3 of the evidence of P.W.8, he has stated that he did not find any mark of blood at the spot of occurrence. Likewise, Mr. Maharaj, learned Amicus Curiae has highlighted various other contradictions appearing in the testimony of the eye witness and the I.O. in the present case. 13. Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State has extensively read out the evidence of P.W.4, the injured and P.W.3, the doctor, who had examined the injured. He has submitted that enough material has come on record to establish the fact that the present appellant had given the bhujali blow to the P.W.4, which was witnessed by as many as four eye witnesses. The injuries found on the body of P.W.4 by the doctor, P.W.3 corresponding to the injury sustained by P.W.4 at the hands of the appellant. 14. I have carefully gone through the evidence on record with the help of both the learned counsels for the parties. 15. P.W.4, the injured in his evidence has deposed as under: Page 8 of 12 “The occurrence of this case took place on 29.12.96 at 11.30 A.M. in front of the club house of village Beleswar patna. On the day of occurrence I was in my house and both the accused persons present in the court and the other two absentee accused persons namely Pramoda Pradhan and Nimain Pradhan called me to outside and I came to outside and all the four accused persons caught hold of me and forcibly took me infront of the said club house. The said club house is situated at a distance of 250 feet from my house. When all the four accused persons forcibly took me to the said club house on the way they were abusing me saying SALA MAGIHA and also criminally intimidated me to kill me while all the four accused detained me in front of the said club house accused Jayadev Pradhan brought out a bhujali which he has kept under his shirt and inflicted a blow on the left side front neck of mine causing bleeding injury.” The said witness has also stated in his testimony that the incident as narrated above by him was witnessed by P.Ws. 1, 2, 5, 9, 10 and 11. It is true that P.Ws. 1, 2 and 11 those who had witnessed the occurrence had turned hostile. However, the other eye witnesses, namely, P.Ws. 5, 6, 9 and 10 have corroborated the evidence of P.W.4 to the hilt. There is no contradiction in their evidence in so far as narration of the incident is concerned. All the witnesses have sustained extensive cross- examination. However, they have not shaken in their version. 16. P.W.3, the doctor has deposed as under: “xxx one incised wound 3 and ½” x 1” x ½” present horizentally over left side of anterior part of root of neck 1” above the left clavicle bone. The injury was tailing towards left Page 9 of 12 side, bleeding present. The injury was simple in nature and might have been caused by a sharp cutting weapon xxxx”. The doctor has also deposed that the injuries of Ext.1 can be caused on the sharp edge of the bhujali. The doctor was cross-examined, but nothing could be elucidated from him, which could discredit his evidence. Therefore, the overall reading of the evidence brings out the sequence of the event that the present appellant had given a bhujali blow to P.W.4, which was witnessed by as many as four eye witnesses. That part of the evidence stood corroborated with the evidence of the doctor. Therefore, the findings recorded by the learned trial Court as mentioned above convicting the appellant for the offence punishable under Section 324 of the IPC cannot be doubted on the face of the evidence on record. 17. Learned trial Court has acquitted the appellant for the offence under Section 307/34 of the IPC, which has not been questioned by the State. Hence, in so far as the guilt of the appellant under Section 324 of the IPC is concerned, this Court is not inclined to interfere with the same. Hence, the conviction of the appellant stands affirmed. Page 10 of 12 18. At this stage, Mr. Maharaj, learned Amicus Curiae submitted that the appellant was on bail throughout the trial. However, after the impugned judgment was pronounced on 05.07.2003, he was granted bail by this Court on 05.08.2003. The appellant has furnished the bail bond on 12.08.2003. Therefore, the appellant has almost undergone the custody for one month. He further submitted that the appellant was 32 years of age at the time of the incident i.e. on 29.12.1996. At present, he would be about 61 years of age. He has suffered the ordeal of trial for more than three decades. Therefore, at this stage, sending him to the custody to serve out the remaining period of sentence would be harsh. Hence, he submitted that the appellant may be treated under the Probation of Offenders Act. 19. Regard being had to the nature of allegation against the appellant and the fact that the appellant has already undergone about one month sentence, I am inclined to modify the sentence while confirming the conviction of the trial Court. The appellant is only liable to pay fine of Rs.10,000/- (Rupees ten thousand), in default of payment of fine, he shall undergo further period of R.I. for one month. The amount to be Page 11 of 12 deposited by the appellant shall be disbursed to P.W.4, the injured in accordance with the provisions of Section 357 of the Cr. P.C. 20. This Court records appreciation for the effective and meaningful assistance rendered by Mr. P.K. Maharaj, learned Amicus Curiae. He is entitled to the honourarium of Rs.7,500/- (Rupees seven thousand five hundred) as a token of appreciation.
Decision
21 The Criminal Appeal is partly allowed and disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 9th Day of September, 2025/ Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 10-Sep-2025 20:09:02 Page 12 of 12