The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 83 of 2002 (In the matter of an application under Section 374(2) of Criminal Procedure Code) Bulu alias Ranjit Swain ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Byomakesh Sahoo, Advocate For the Respondent : Mr. P.K. Sahoo, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 08.07.2025 : Date of Judgment: 18.07.2025 S.S. Mishra, J. The present appeal is directed against the judgment and order dated 04.04.2002 passed by the learned Additional Sessions Judge, Rourkela in Sessions Trial No.25/157/1998, whereby the appellant, who was tried along with co-accused Kalia @ Saroj Praharaj, has been found guilty of offence under Section 304 (Part-II) of the IPC. The co-accused Kalia @ Saroj has been acquitted of all the charges. In lieu of the conviction of the appellant, the trial court has awarded ten years rigorous imprisonment. 2.
Legal Reasoning
Heard Mr. Byomakesh Sahoo, learned counsel for the appellant and Mr. P.K. Sahoo, learned counsel for the State. 3. From the record, it reveals that the appellant was arrested in the present case on 28.02.1998. He was admitted to bail by this Court vide order dated 17.09.2002. Therefore, the appellant has undergone more than four years in custody. 4. The allegation of the prosecution in the present case is that on 02.02.1999 at about 3.30 P.M. Ganju Bindhani (deceased) was present near Saraswati Puja Pendal at Balijodi. It is alleged that the present appellant along with co-accused Kalia wrongfully restrained Ganju, abused him and thereafter killed him by stabbing on his belly. On the basis of the aforementioned report, Raghunathpalli P.S. Case No.18 (1) of 1998 corresponding to G.R. Case No.156 of 1998 came to be registered. After investigation, charge sheet was filed against both the accused persons for the offence punishable under Sections Page 2 of 11 341/294/302/34 IPC. Accordingly, the charges were also framed for the aforesaid offences and the appellant along with the co-accused were put to trial. 5. The prosecution examined as many as thirteen witnesses to substantiate its case, whereas the appellant and the co-accused took stand of denial and claimed trial. 6. It appears from the record that the prosecution through their thirteen witnesses have broadly tried to bring on record direct evidence through P.W.4 and P.W.7 as eye witnesses, dying declaration of the deceased through the evidence of P.W.9 and the evidence of the doctor. 7. After analysing the evidence of the prosecution, the trial court recorded an acquittal in favour of the co-accused, as there was no cogent evidence against him. However, in paragraph-8 of the judgment, the trial court recorded the following findings in regard to the guilt of the appellant:- “8. So far as the case of other co-accused Bulu Swain is concerned, there is direct evidence available against him. P.W.4 has deposed that Bulu Swain came and stabbed a knife on the belly of deceased and deceased fell down with bleeding injury and was shifted to hospital. Similarly, P.W.7 has also deposed that accused Bulu Swain Page 3 of 11 assaulted on the belly of deceased by means of a Razer (KHURA) and deceased fell down and was removed to medical for his treatment. This evidence of P.Ws. 4 and 7 has not been shattered in the cross examination. Nothing has been put forth before the court to show, as to why these witnesses should be disbelieved. The learned counsel for this accused submitted that the witnesses being „Bindhanis‟, might have supported the case of the prosecution, as the deceased was „Bindhani‟. Such submission is too remote to be believed and hence discarded. The learned counsel further submitted that it is clear from the evidence of P.W.4 that about 20 to 30 persons were present near the puja pendal and there is no explanation from the side of prosecution as to why those witnesses (people) were no examined in this case. In this connection, it may be stated that some more witnesses have been examined in this case, but some of them have not been turned hostile (Namely pws, 2,3,6,8 and 10). In the above situation, it cannot be held that it was incumbent on the prosecution to examine all the 20 to 30 persons and to make them witnesses who were present at the spot. Out of the witnesses examined, two witnesses have supported the alleged incident of the case. It is to be seen, whether their evidence is credible or not. The learned counsel for the accused submitted that since many witnesses have not supported the case, therefore, the evidence of PWs-4 and 7 should be viewed with suspicion and should be thrown out of consideration. Such submission of the learned counsel is not tenable in the eye of law. Evidence has to be weighed and assessed and need not be multiplied and that is the basic principle of criminal jurisprudence.” 8. The trial court although acquitted the appellant from the charges under Sections 294 and 341 IPC, but convicted him for offence under Section 304 (Part-II) of IPC. It is borne out from the record that as Page 4 of 11 against the acquittal of the co-accused or against the acquittal of the appellant for offence under Sections 294 and 341 IPC, the State has not filed any appeal. 9. Mr. Sahoo, learned counsel for the appellant submitted that the entire case of the prosecution hinges upon two witnesses, namely, P.W.4 and P.W.7. If the evidence of these two witnesses is carefully examined, it would expose the contradiction. P.W.4 has alleged that the present appellant has given a knife blow to the deceased, whereas P.W.7 stated that the appellant has given razer (katuri) blow. The so called dying declaration relied upon by the prosecution is completely doubtful because the alleged occurrence had taken place on 02.02.1998, whereas Ganju the injured died after eight days, i.e., on 10.02.1998. Conspicuously, the alleged dying declaration was brought on record through P.W.9, who happens to be the deceased’s uncle. The testimony of P.W.3 is completely shaky and unbelievable. Mr. Sahoo, further submitted that the trial court by disbelieving the testimony of P.W.9 has recorded the acquittal in favour of the co-accused. He further submitted that the alleged occurrence has taken place near Saraswati Puja Pendal Page 5 of 11 where many other people were present. The prosecution has examined four witnesses from the said crowd. All the witnesses namely P.Ws 2, 3, 6 and 8 have not supported the prosecution version. Therefore, false implication of the present appellant in the instant case cannot be ruled out. 10. The learned State Counsel on the other hand by reading out the evidence of the witnesses in extenso submitted that the conclusion drawn by the trial court cannot be faulted with. 11. I have carefully gone through the evidence on record and in the light of the submission made by the parties, analysed the same. The version of P.W.3 and P.W.7 are more or less in the similar line. Although P.W.3 has declared hostile but from the cross examination of the said witness, the corroborative material to support P.W.7 could be elucidated by the prosecution. P.W.7 has stated that on 02.02.1998 on the Saraswati Puja day, near the puja pendal in Balijodi, the accused persons quarrelled with Ganju Bindhani. In the course of quarrel, accused Bulu Swain assaulted by means of razer (khura) on his belly. Ganju Bindhani suffered bleeding injury and fell down. One Sunil along Page 6 of 11 with Prasanta Samal took Ganju Bindhani in the motor cycle for the medical for treatment. Similar version was echoed by P.W.4 and P.W.6. P.W.4 in his testimony has categorically stated that on Saraswati Puja day of 1998 some boys quarrelled amongst themselves and at that time Bulu Swain came and stabbed knife on the belly of Ganju Bindhani. Ganju Bindhani sustained bleeding injury and fell down on the ground. Thereafter, Ganju Bindhani was sent to the hospital for medical treatment. This version of P.W.4 draws corroboration from the evidence of other eye witnesses, namely, P.W.6. However, the evidence of P.Ws.3, 4, 6 and 7 reveals that P.W.3 and P.W.7 stated that the present appellant has used the raser (katuri) and stabbed on the belly of the deceased, whereas P.W.4 and P.W.6 stated that the appellant has used a knife. Except this variation, the other part of the versions of these witnesses are consistent. In so far as the evidence of P.W.9 is concerned, it is apparent that on his asking the deceased in the hospital, disclosed that the present appellant and Kalia Praharaj assaulted him. It is also revealed from the evidence that the said witness had reached the hospital immediately after getting the information, which goes to show that the Page 7 of 11 dying declaration by the deceased to P.W.9 was made on the date of occurrence and eight days thereafter the deceased succumbed to the injuries. In the cross examination it is elucidated that the deceased was the nephew of the witness. It is true that the deceased remained in the hospital for eight days but the prosecution has not attempted to record his dying declaration in the manner it should have been. Mr. Sahoo, learned counsel for the appellant attacked the evidence, inter alia, contending that the said evidence is hit by Section 32 of the Evidence Act. 12. The evidence of P.W.10, who is the author of the FIR, is also relevant to draw corroboration to the evidence of the eye witnesses. The said witness although deposed regarding the presence of the appellant and other accused persons in the place of occurrence but he denied to have written the report on the basis of which FIR was registered. Therefore, the said witness was declared hostile. P.W.12 is the doctor, who has attended to the deceased and gave first aid. He in his testimony has stated that two young men who came with Ganju and Ganju himself disclosed before him that he fell down from a height at the time of Page 8 of 11 arrangement of puja pendal and sustained injury. He stated that he had given the first aid to the injured. Surprisingly, the said witness was not put to cross examination. P.W.11 is the doctor, who conducted the post mortem examination. He has deposed as under:- “3. A stitched wound 6” length on the right upper paramedium area of abdomen. Stitcher was used, looks like surgical wound. Long access directed vertically. (ii) One stitched wound 1” length on the left side of epigastrim with clean cut margin, directed vertically. (iii) Both the wound Nos. (i) and (ii) are through and through abdominal wall and viscera deep. On dissection, both the wounds (i) and (ii) through and through abdominal wall viscera deep. (iv) One trachuostomy wound in the lower part of trachea. (v) One venj section wound on the medial side of right ankle joint. All the wounds are ante mortem in nature. (vi) One rubber dranish found to be inserted into the abdominal cavity through a stab wound 1”x1” length in the right lower. It was found to be abdominal wall by silk stitch, ante- mortem in nature. (vii) The skull and vertebrae intact and normal membrane; intact and normal, Brain and spinal cord- intact and normal, Throax: wall bridge intact and normal. Plerr- Intact and normal; Larynx and trachea- Trachestomy 1”x1” wound into tracheal deep present; Ante mortem in nature. Both the lungs are intact and congested.” P.W.11 opined that the cause of death is due to septic peritonitis, resulting from injury of colon. The doctor, P.W.11 sustained elaborate Page 9 of 11 cross examination, however, nothing could be elucidated from him to doubt his version. 13. The above being the nature of evidence brought on record by the prosecution, the finding recorded by the trial court as reproduced above cannot be faulted with. Although the trial court judgment is bit sketchy but fact remains that the prosecution evidence is overwhelmed to sustain the conviction. In that view of the matter, this Court is not inclined to interfere in so far as the conviction recorded against the appellant for offence under Section 304 (II) of IPC is concerned. At this stage, Mr. Sahoo learned counsel for the appellant submitted that a lenient view should be taken against the appellant while awarding the sentence. He submitted that at the time of incident in the year 1998, the appellant was 26 years and at present he is aged about 54 years. The appellant is leading a peaceful life and he is now a reformed person. Therefore, sentencing him to undergo remaining sentence at the belated stage of his life will not only be harsh but also be detrimental to the family members. Therefore, he submits that a lenient view should be taken against him. Page 10 of 11 14. In the present case, the appellant has already undergone more than four years custody. The incident had taken place in the year 1998. The present appeal is pending since 2002. Therefore, at the belated stage sending the appellant to custody for serving out remaining sentence, indeed would be harsh. Therefore, I intend to modify the sentence of imprisonment to that of the sentence the appellant has already undergone. Over and above the same, I also impose a fine of Rs.10,000/- (rupees ten thousand), in default, to make the payment, the appellant shall further undergo a period of two months of rigorous imprisonment. The fine amount to be deposited shall be disbursed to the family members of the deceased in accordance with the provision of Section 357 of Cr.P.C. 15. The CRA is accordingly partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 18th July, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 18-Jul-2025 18:33:20 Page 11 of 11