The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.146 of 1990 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Ramjit Tudu and others ……. Appellants -Versus- State of Odisha ……. Respondent For the Appellants : Mr. Mohammad Faradish, Advocate For the Respondent : Ms. Sarita Moharana, 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 present appeal has been preferred by the four convicts/appellants assailing the judgment and order dated 19.04.1990 passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No.58 of 1989, whereby the learned trial Court found the appellants guilty of the offences punishable under Sections 304 Part-I of I.P.C., and sentenced them to undergo R.I. for six years on that count. 2. During pendency of the present appeal, the appellant No.1-Ramjit Tudu has expired on 01.04.2014. Therefore, the present appeal qua the appellant No.1 stood abated vide order dated 10.11.2023. Hence, the present appeal is confined to the appellant Nos.2, 3 and 4. 3.
Legal Reasoning
Heard Mr. Mohammad Fardish, learned counsel for the appellants and Mrs. Sarita Moharana, learned Additional Standing Counsel for the State. 4. The prosecution case in terse and brief is that on 20.10.1998 at about 4.30 P.M., one Kali Charan Tudu (P.W.5), Baghrai Tudu (P.W.6), the deceased and the others were playing „Dandia‟. The deceased- Ugrasen Murmu went towards the water channel after an hour, while his friends were sitting on a culvert. After fifteen minutes of his departure, his friends P.Ws.5 and 6 and others heard cries and after hearing the same, they went towards the water channel. They stood on the embankment of the tank, which runs by the side of the tank. They saw the deceased was being assaulted by the accused inside the water channel Page 2 of 15 with Budhia, Katuri, Lathi etc. P.Ws.5 and 6 raised the alarm and the accused persons fled away from the spot. Immediately, after the assault, the father of the deceased and others reached the spot and the deceased was moved to Udala hospital for treatment. It is the case of the prosecution that in the hospital, before the treating doctor (P.W.2), Ugrasen Murmu, the deceased gave a dying declaration. The deceased was then taken to S.C.B., Medical College, Hospital, Cuttack for treatment. However, he succumbed to injury after three days i.e. on 23.10.1988. After investigation, charge-sheet was laid down against the four accused persons. On their pleadings of innocence, they were put to trial. 5. The prosecution in order to establish its case has examined as many as ten witnesses. P.W.2 was the doctor, who initially treated the deceased and recorded the dying declaration and P.W.9 was the doctor, who performed the autopsy on the dead body of the deceased-Ugrasen Murmu. P.W.10 was the Investigating Officer of the case. P.W.4 is the father of the deceased whereas P.Ws.5 and 6 being the friends of the Page 3 of 15 deceased, were the eye witnesses to the occurrence and others are formal witnesses. 6. The learned trial Court by heavily relying upon the testimony of P.Ws.2, 5 and 6 recorded a conviction against the appellants. The learned trial Court‟s appreciation of evidence is reflecting in paragraphs-10, 11 and 12 of the impugned judgment, which reads as under:- “10.In addition to the evidence of those two eye- witnesses, the prosecution has led evidence that the deceased made a dying declaration to the doctor, P.W.2 implicating the accused persons in the assault to him. As deposed to by P.W.2, he recorded the dying declaration of the deceased. Ext.5, in presence of the Surgical Specialist, P.W.3, as well as Pharmacist and one attendant of the hospital. Corroborating his evidence, P.W.3 has stated that the deceased gave his statement regarding the assault to him by the accused persons. The evidence of these two doctors as narrated above, has been assailed by the defence on the ground that in view of the nature of the injuries, the deceased could not have given his statement to P.W.2. Both P.Ws.2 and 3, the two doctors, whose evidence I have discussed above, being public servants, have no axe to grind against the accused persons. Their evidence would reveal that the deceased was in sense when he gave his statement inside the operation theatre. Neither it has been elicited from them during cross-examination nor the nature of injuries sustained by the deceased suggest that in no circumstances the deceased could have given such statement to P.W. 2. Regarding the value to be attached Page 4 of 15 to the dying declaration, Ext.5, the learned defence counsel submits that as it has not been recorded in question and answer form, it should be kept away from consideration. There is no set rule of law that the dying declaration is to be recorded in question and answer form and if it is not done, it carries little evidentiary value. On a close scrutiny of the evidence of P.Ws.2 and 3, couple with the dying declaration, Ext. 5, I am persuaded to hold that the dying declaration having been recorded within four hours of the incident and there having nothing to suggest that it was concocted and made as a result of tutoring, it could be relied upon as a strong piece of evidence for finding the accused persons guilty. 11. As regards the oral dying declaration is concerned, P.W.4, the father of the deceased has stated that being informed of the incident he went to the spot and asked the deceased as to how he received the injuries to which he replied that he had been assaulted by the accused persons. This evidence of his finds support from the evidence of P.Ws.5 and 6. On going through their evidence I find that the defence could not be able to elicit anything to cast a doubt, in their varacity. So on a close scrutiny of the evidence of the prosecution as discussed above, I am persuaded to hold that all the accused persons gave a beating to the deceased with sharp cutting weapons and lathis which ultimately resulted in his death. 12. In view of my findings recorded above, the next question that emerges for consideration is what offence the accused persons have committed? All the accused persons are real brothers. As the evidence goes, accused Ramjit was armed with a lathi and others with sharp cutting weapons. It is in the evidence of P.Ws.5 and 6 as discussed earlier that all Page 5 of 15 the accused persons assaulted the deceased with the weapons with which they were armed. As deposed to by doctor, P.W.9 external injury Nos. I, VII, VIII and IX i.e. injuries on the head and chest corresponding to their internal injuries were independently sufficient to cause death of the deceased in ordinary course of nature. No evidence has been led by the prosecution as to who of the accused persons inflicted the aforesaid injuries, which proved fatal. So, in absence of such evidence, in my opinion, none of the accused persons can be held liable Under Section 302 I.P.C. Now the question is whether with the add of Section 34 I.P.C, a finding of conviction can be recorded Under Section 302 I.P.C. against all the accused persons. It has been held by the Apex Court, that when a criminal act was done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone, The words "in furtherance of common intention of all” are most essential part of Section 34 I.P.C. “Common intention” means a pre-arranged plan. On the other hand, Section 149 I.P.C. speaks of an offence being committed by any member of an unlawful assembly in prosecution of the “common object” of that assembly. The distinction between” Common intention" Under Section 34 I.P.C. and Common object" Under Section 149 I.P.C. is of vital importance. Under Section 34 I.P.C., it has to be established that there was common intention before the participation by the accused. In the present case, although it has been well proved that all the accused persons have beating to the deceased, but there is no evidence that they made a pre-arranged plan to do away with him. From the nature of injuries sustained by the deceased, it can well be said that all the accused persons had the knowledge that their act of assaulting Page 6 of 15 the deceased was likely to cause his death and therefore, in my opinion, they are liable for punishment Under Section 304 Part I, I.P.C.” 7. Being aggrieved by the judgment and order passed by the learned Sessions Judge, Mayurbhanj, Baripada, the present appeal has been filed by the appellants. 8. Mr. Faradish, learned counsel for the appellants submitted that from the evidence it could be easily gathered that there was past enmity between the appellants and the deceased. The appellants are real brothers and they were also related to the deceased person‟s family. Four to five years prior to the incident, settlement operation regarding the land had taken place, which is the cause of strained relationship between the family of the appellants and the deceased. Therefore, according to the learned counsel, this is a case where the appellants are falsely implicated. 9. Mr. Faradish, learned counsel further submitted that in the F.I.R., dying declaration as well as the evidence of P.Ws.5 and 6, it is found mentioned that the alleged incident was also witnessed by one Madhusudan, Baghari, Surendra and Sridhar. However, the prosecution has chosen to examine only P.Ws.5 and 6, because they were admittedly Page 7 of 15 close friends of the deceased. Hence, the testimony of P.Ws.5 and 6 need to be viewed in that light of the matter being the interested witnesses. Having said that, Mr. Faradish, has also pointed out the apparent contradictions in the testimony of P.Ws.5 and 6. He submitted that P.W.5 in his cross-examination has stated that there is a road adjoining the playground where they were playing „Dandia‟. To reach the place of occurrence from that place, there is a turning point and there is a bridge also obstructing the road. Therefore, there is all probability that P.W.5 could not have seen the incident. Similarly, the contradictions were pointed out in the evidence of P.W.6. The entire endeavour of Mr. Faradish, learned counsel for the appellants is only to establish that P.Ws.5 and 6 had not seen the occurrence at all because it was a dark evening, full of clouds. The distance from the place where the Dandia was going on and the occurrence is being obstructed by a bridge and a road to view the incident. Hence, the witnesses are falsely deposed to implicate the present appellants being the friends of the deceased. Regarding the dying declaration, Mr. Faradish, learned counsel submitted that as per the doctor‟s evidence (P.W.2), the victim was Page 8 of 15 severely injured. As per the injury report, there was a cut at lungs, depressed fracture on the head, ribs fractures and other several injuries. Therefore, the dying declaration alleged to have been made before P.W.2 is doubtful as the deceased was not in a position to give such detailed dying declaration. He questioned the dying declaration on the ground that the doctor (P.W.2) could have obtained the signature of Urgasen (deceased), however, this has not been done deliberately, so it is an afterthought document created to implicate the appellants. 10. Likewise, Mr. Faradish, learned counsel for the appellants has taken me to the evidence and documents to point out the contradictions and has submitted that it is a clear case, whereby the appellants were falsely implicated due to the past enmity between the family of the deceased and the appellants. 11. To counter the submission made by Mr. Faradish, learned counsel for the appellants, Ms. Moharana, learned Additional Standing Counsel for the State has taken me to the evidence of P.Ws.5 and 6 and also relied upon the dying declaration. She has emphasized on the evidence of P.Ws.2 and 9, both the doctors and pointed out the severity of the Page 9 of 15 injury sustained by the deceased. She submitted that the brutal attack made by the appellants, resulting the death of the deceased is in fact, attracting the offence under Section 302 of I.P.C. She submitted that the learned trial Court appears to have taken a lenient view to convict the appellants for the offence under Section 304 Part-I of I.P.C. and six years R.I. has been awarded against them to commensurate the gravity of offence they have committed. Therefore, she submitted that no interference is called for in the present scenario of the case. 12. I have carefully gone through the evidence on record with the help of both the counsels appearing for the parties. The evidence of P.Ws.5 and 6 those who have very meticulously detailed out the incident cannot be doubted or discarded merely because they were the friends of the deceased. It is quite obvious from the sequence of event that the deceased was in the company of his friends had gone to play „Dandia‟. The incident had taken place on the same evening. Therefore, it is obvious that the friends those who have accompanied the deceased would be naturally present at the spot of incident. P.Ws.5 and 6 being the natural witnesses, their presence in the spot cannot be doubted. Page 10 of 15 Therefore, merely because they were the friends of the deceased, their evidence cannot be discarded. The contention of the learned counsel for the appellants that as per the prosecution story, the other eye witnesses were also there, non-examination of those witnesses creates a serious doubt on the prosecution version. I do not agree with the submission made by the learned counsel for the appellants because the prosecution could successfully bring home the charges against the appellants on the basis of two prominent eye witnesses, it is not necessary that number of witnesses required to be examined. The prosecution appears to have emphasized the quality of evidence rather than the quantity. The submission made by Mr. Faradish, learned counsel for the appellants regarding the dying declaration is also liable to be rejected because the dying declaration has been written by the doctor (P.W.2). The nature of injury sustained by the deceased is obvious that he could not have signed the dying declaration. Therefore, the doctor (P.W.2) being an independent witness has signed the dying declaration in whose presence, the same was made. P.W.2 in his examination-in-chief has deposed as under:- Page 11 of 15 “All the injuries mentioned above were within four hours of my examination. Injury no.1 and no.12 were grievous and others simple. All the incised wound could have been caused by sharp cutting weapon like tangia (axe), katuri and the lacerated wound by hard and blunt weapon like lathi. This is my injury report, marked Ext.4. I recorded the dying declaration of the injured. This is that dying declaration of the injured, marked Ext.5. While recording the dying declaration of the Surgical Specialist S. Sethi, Pharmacist Durjodhan Barik and attendant Gobardhan Panigrahi were present. Sub- divisional Medical Officer was also present. All of them put their signatures in token of proof of their presence at the time of recording of the dying declaration.” injured the 13. The defence put a specific question to the said witness (P.W.2) regarding the condition of the injured/deceased in the hospital, to which, the witness has stated that “it is not a fact that in the condition the injured came to the hospital, he was not able to make any statement. It is not a fact that I have created the dying declaration Ext.5 subsequently”. 14. Regard being had to the aforementioned nature of evidence of the doctor (P.W.2), I have no doubt in my mind that the evidence of P.W.2 is credible and cannot be doubted. In view of the overwhelming nature of evidence brought on record by the prosecution, it is difficult for this Court to interfere with the impugned judgment passed by the learned Page 12 of 15 trial Court. Accordingly, the conviction recorded by the learned Sessions Judge, Mayurbhanj, Baripada for the offence under Section 304 Part-I of I.P.C. stands confirmed qua the appellants. 15. At this stage, Mr. Faradish, learned counsel for the appellants urged the Court that a lenient view should be taken against the appellants and sought for modification of sentence. He submitted that one of the appellants i.e. appellant No.1 has already died. The appellant No.2 is 75 years of age whereas appellant Nos.3 and 4 are more than 70 years and 60 years respectively as of today. Therefore, all the appellants are in the evening of their life. Sending them to custody to serve out the remaining period of the sentence would be very harsh for them at this stage. He further submitted that this is an isolated incident where unfortunately the appellants have been entangled. In the meantime, all of them are reformed persons, well integrated in the society and they are also leading respectable life with their family members. Mr. Faradish, further submitted that the appellants were arrested on 22.10.1988. Although bail was granted to them on 25.11.1988 but they were released from the custody only on 05.07.1989. Again after the impugned judgment, the Page 13 of 15 appellants were taken into custody on 19.04.1990 and this Court granted them bail on 23.05.1990. The present appeal is pending for hearing for more than two decades. Accordingly, he submitted that during the trial, the appellants have remained in custody for seven months fifteen days and after conviction, again they were remained in custody for one month four days. In that scenario, he submitted that the sentence awarded by the learned trial Court may be modified to the extent of the period the appellants have already undergone. 16. I have given a careful consideration to the submission made by the learned counsel for the appellants. It is apparent on record that the crime committed by the appellants is heinous in nature. They do not deserve any leniency. At the same time the fact remains that the incident relates back to the year 1988. Much has changed in between. The appellants have already undergone about nine months sentence. All the appellants are senior citizens. Taking the entire conspectus and scenario of the case into consideration, I am of the considered view that the sentence is liable to be modified. Accordingly, the sentence of six years R.I. awarded by the learned trial Court is modified to the sentence to one year R.I. The Page 14 of 15 appellants are also liable to pay a fine of Rs.10,000/- (Rupees ten thousand) each, in default of making such payment, they shall undergo R.I. for two months each. The appellant Nos.2, 3 and 4 are directed to surrender before the learned trial Court within a period of one month hence. The learned trial Court shall remand them to judicial custody to serve out the remaining period of sentence. The fine amount to be deposited by the appellants shall be disbursed to the deceased family in accordance with the provision under Section 357 Cr.P.C. 17. Accordingly, the CRA is partly 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 15 of 15