The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.339 of 1992 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Jayaram Paik ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Satya Narayan Mishra 4, Amicus Curiae For the Respondent : Mr. Ashok Kumar Apat, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 02.12.2025 :: Date of Judgment: 09.12.2025 S.S. Mishra, J. The appellant-Jayaram Paik has preferred this appeal against the judgment of conviction and order of sentence dated 22.10.1990 passed by the learned Additional Sessions Judge, Parlakhemundi in Sessions Trial Case No.25 of 1989(A), whereby he has been found guilty of the offence punishable under Sections 307/506/34 of I.P.C. and on that count, he was sentenced to undergo R.I. for four years for the offence under Section 307/34 of I.P.C. and further to undergo R.I. for six months for the offence under Section 506/34 of I.P.C. 2. The present appeal has been pending since 1992. When the matter was called for hearing, consistently no one appeared for the appellant.
Legal Reasoning
Therefore, this Court requested Mr. Satya Narayan Mishra 4, learned counsel, who was present in Court to assist the Court as Amicus Curiae. He has readily accepted the same and after obtaining entire record, assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Mr. Mishra. 3. Heard Mr. Satya Narayan Mishra 4, learned Amicus Curiae for the appellant and Mr. Ashok Kumar Apat, learned Additional Government Advocate for the State. 4. The prosecution case in brief, is that on 05.09.1988 at about 8 P.M. the accused persons entered into the house of Panchu Singh Majhi (P.W.3) of Ajayagada. Accused Ganapati Paik fired from the gun which he was holding aiming at Panchu Singh Majhi. His aim failed and the Page 2 of 13 bullet struck to the wall. After firing, all the accused persons left his house through its bari. On the basis of these allegations, P.W.3 lodged a written report (Ext.1) before the Officer-in-Charge, Serango Police Station. Upon completion of the investigation, the Investigating Officer submitted a final report (Ext.2) before the Court of the Sub-Divisional Judicial Magistrate, Parlakhemundi, opining that the case was false and recommending closure under Sections 307/506/34 of the I.P.C. The learned S.D.J.M., by order dated 31.03.1989, disagreed with the conclusion of the Investigating Officer and took cognizance of the offences under Sections 307/506/34 of the I.P.C. against accused Ganapati Paik, Gokula Chandra Bisoyi, and Prafulla Paik, subsequently committed them to the Court of Sessions. During the course of the proceedings, on an application filed under Section 319 Cr.P.C., the Court summoned Jayaram Paik (the present appellant) to stand trial along with the other accused persons. 5. The prosecution in order to prove its case has examined eight witnesses. P.W.1 is the wife of the victim, P.W.2 is the daughter of the Page 3 of 13 victim whereas P.W.3 is the victim himself. P.Ws.4, 5 and 6 were the independent witnesses whereas P.Ws.7 and 8 were the I.O. of the case. The appellant has taken a plea of complete denial and on his stance of denial and claim of trial, he was put to trial after framing of the charges against him under Sections 307/506/34 of I.P.C. 6. The aforementioned three accused persons faced the trial. The learned trial Court vide its judgment and order dated 17.09.1990 in Sessions Trial Case No.25 of 1989 found them guilty of offence under Sections 307/506/34 of I.P.C. sentenced them to undergo R.I. for four years for the offence under Section 307/34 of I.P.C. and six months for the offence under Section 506/34 of I.P.C. When the Sessions Trial Case No.25 of 1989 vis-à-vis the aforementioned three accused persons were going on, it appears that some material came on record against the present appellant. Therefore, the prosecutor moved an application under Section 319 Cr.P.C. for summoning the present appellant to face the trial. It is alleged by the prosecutor that along with the aforementioned three accused persons at the time of incident, the present appellant was also associated and accompanied them. Pursuant to the summons, the Page 4 of 13 present appellant appeared before the court on 17.09.1989. The trial of his case got splitted up and Sessions Trial Case No.25 of 1989 (A) was registered. 7. The only allegation made by the prosecution against the present appellant is that he along with Gokula Chandra Bisoi and Prafulla Paik accompanied Ganapati Paik who fired from the gun which aimed at P.W.3. The bullets struck on the wall and P.W.3 escaped being unhurt. After firing, all the accused persons including the present appellant left the house. P.W.3 filed the written report, on the basis of which the criminal law was set into motion against the accused persons. It is admitted on record that the role and overt act attributed to the appellant is exactly the same as that of Gokula Chandra Bisoi and Prafulla Paik. In the present case, the learned trial Court by analysing the evidence which has come on record, arrived at the following conclusion:- “xxxx xxxx xxxx Let me examine the deposition of the witnesses. P.W.4 Panchusingh Majhi has deposed that, he was sitting in a chair on his back of his house of his front verandha. His wife P.W.1 and daughter P.W.2 were taking their meals in their front verandha of his back Page 5 of 13 house. All the accused persons entered into his house and accused Ganapati fired a gun aiming at him. The bullet did not hit him but hit on the wall of his house causing two holes in the wall. This witness is cross-examined at length. It has been suggested to the witness that he has not mentioned in the F.I.R. that Ganapati Paik fired a gun aiming at him. I have verified the F.I.R. Ext.1 and the suggestion is not correct. Nothing has been elicited from the witness to discredit him. His evidence is corroborated by P.W.1 and P.W.2. It is stated that the occurrence took place inside the house of P.W.1. It cannot be expected that outsiders will be available to witness the occurrence. 12. The evidence of P.W.5 is that police Babu seized the pallets by recovering the same from the wall of the house of P.W.4. Police babu recovered two pallets by digging the wall. M.Os. I and II are the said two pallets. This is corroborated by P.W.4. P.W.6 has deposed that he heard a gun sound, hearing the sound he went to the house of P.W.1. This witness proves the extra judicial confession said to have been made by accused Ganapati before him. There is no cross-examination on the score to this witness. P.W.8 is the I.O. who corroborates the evidence of P.W.4 and P.W.5. He corroborated the seizure of M.O.I and II from the wall of the P.W.4. 13. The witness Panchusingh Majhi and Sabita Kumari Majhi were cross examined at length by the defence counsel. Except the minor contradiction which are in consequential nature, no material is brought out to discredit the witnesses. They are also natural witnesses as the occurrence has taken place inside the house of P.W.4. 14. I have carefully gone through the evidence of the prosecution. It is admitted case that P.W.4 did not receive any injury from the gun fired. The intention of the accused Ganapati is clear from firing gun aiming at P.W.4 is to kill him. The other accused persons including the accused Jayaram are his associates when Ganapati fired the gun, they were present.” Page 6 of 13 8. The appellant is seriously aggrieved by the aforementioned findings recorded by the learned trial Court, which led to the conviction and sentence. Hence, he has filed the present Appeal. 9. With the help of learned counsel for the parties, I have gone through the evidence on record and also perused the entire evidence brought on record by the prosecution in Sessions Trial Case No.25 of 1989 pertaining to the trial of other three accused persons. It is profitable to read and rely upon the findings of the learned trial Court dated 17.09.1990 in Sessions Trial Case No.25 of 1989, which reads as under:- “P.W.4, Panchusingh Majhi has deposed that, he was sitting in a chair on the back house of his front verandha. His wife P.W.1 and daughter, P.W.2 were taking their meals, in the front verandah of his back house. All the accused persons entered to his house and accused Ganapati fired a gun aiming at him. The bullet did not hit him and hit the wall of his house causing two holes in the wall. This witness is thoroughly cross examined. It is suggested to the witness that he has not mentioned in the F.I.R. that Ganapati Paik fired the gun aiming at him. I have verified the F.I.R. (Ext.1) and the suggestion is not correct. Nothing could be elicited from the witness to discredit him. His evidence is supported by P.W.1 and P.W.2.It is alleged that the occurrence took place inside the house of P.W. 4. It can not be expected that out siders will be available to witness the occurrence. 12. The evidence of P.W.5 is that Police babu seized two pallets by recovering the same from the wall of the house Page 7 of 13 of P.W. 4. Police Babu recovered two pellets by digging the wall. M.Os. I and II are the said two pellets. This corroborates the deposition of P.W.4. P.W.6 has deposed that he heard a gun short sound, hearing the sound, he went to the house of P.W.1.This witness proves an extra judicial confession said to have been made by accused Ganapati before him. There is no cross examination on this scope to witness. P.W.8 is the who corroborates of evidence of P.Ws. 4 and 5 in deposing that he seized M.O.I and II from the wall of the house of P.W. 4. P.W.8 in Para-4 of his deposition has also deposed that there is evidence of extra judicial confession in this case. 13. The witness Purnabasi Majhi and Sabita Kumari Majhi were cross examined by the defence at length. Except in consequential in nature, no material is brought out to discredit any of the above witnesses. They are also natural witnesses as the occurrence has taken place inside the house. The accused Gokul Chandra Bisoi, Ganapati Paika in their statement U/sec. 313 Cr.P.C. question as "Have you got anything more to say" Both the accused persons have stated that accused Prafulla Chandra Paika will say for them. Accused Prafulla Chandra Paika in his statement U/s. 313 Cr.P.C. has stated that:- some minor contradiction which are "P.W.4 was selling guns combastable articles caught fire and there was a big sound. We went there to see as to what happened. They were implicated in this case. P.W.4 assaulted Gokula and others. Ganapati Paika lodged a report to the police." The explanation of the accused persons do not appear to be true and nothing was suggested to P.W.4 during his cross examination. 14. I have carefully gone through the evidence of the prosecution. It is admitted case that P.W.4 did not receive any injury from the gun fire. The intention of accused Ganapati is clear that in firing the gun aiming P.W.4 is to kill him. The other two accused persons were his Page 8 of 13 associates and they were present when Ganapati fired the gun.” The learned trial Court in that case i.e. Sessions Trial Case No.25 of 1989 has concluded that the prosecution could prove the case beyond all reasonable doubt in so far as the principal accused Ganapati Paik is concerned. The learned trial Court also recorded a finding that the co- accused-Prafulla Paik and Gokula Chandra Bisoi had accompanied the principal accused-Ganapti Paik. Therefore, all the three co-accused persons were convicted for the offence under Section 307/506/34 of I.P.C. It was brought to the notice of the Court that these three accused persons preferred appeal against the judgment of conviction and order of sentence passed by the learned trial Court before this Court. This Court vide order dated 25.07.2007 in CRA No.251 of 1990 while acquitting the co-accused Prafulla Paik and Gokula Chandra Bisoi of all the charges, convicted the principal accused-Ganapati Paik for the offence under Section 307 of I.P.C. by reducing his sentence to that of the period he had already undergone and imposed a fine of Rs.1,000/-, in default to Page 9 of 13 undergo R.I. for three months. Relevant part of the said order dated 25.07.2007 is reproduced for convenience of ready reference:- there is no material against “9. There is no material on record regarding commission of the offence under section 506 IPC. As regards the offence under section 307 IPC, the only material is against Ganapati, appellant no.3. But the prosecution has failed to prove the common intention of the other accused persons. 10. In view of the above, this Court acquits appellants 1 and 2 of the charges under sections 307/34 IPC and convicts the appellant no.3-Ganapati Paik under section 307 IPC. So far as section 506 IPC is concerned, the appellants. Therefore, this Court acquits all the appellants of the said charge. 11. Mr. Mohapatra submits that the occurrence took place 20 years back, and at the time of occurrence the age of the appellant no.3 was 42 years and now he is aged about more than 60 years. Therefore, he prays to award lesser sentence. 12. Considering the facts and circumstances of the case and the submission made, this Court reduces the sentence imprisonment already fine of Rs.1,000/- (one undergone and pay a thousand) in default to undergo R.I. for three months.” the period of 10. I am alive to the fact that the evidence in the present case is independent and the evidence in the Sessions Trial Case No.25 of 1989 has no bearing although both the case germinating from the same Page 10 of 13 incident. Therefore, the findings recorded by the learned trial Court in that case only has persuasive value. In the instant case, if the evidences are analysed, the case of the prosecution in so far as the present appellant is concerned, cannot be projected different from the case of the co- accused Prafulla Paik and Gokula Chandra Bisoi. It is admitted on record that the present appellant has only accompanied with the principal accused-Ganapati Naik, who has fired the bullet aiming at P.W.3. P.W.3 in his testimony has deposed that he was sitting in a chair in the back verandha of his front house. His wife (P.W.1) and his daughter (P.W.2) were taking their meals in front of verandha of the back of his house. All the accused persons including the present appellant entered into his house and accused Ganapati Paik fired a gun shot aiming at him, the bullet although did not hit but it struck on the wall of his house causing two holes. The said witness (P.W.3) in his cross-examination although has deposed that he has not mentioned the fact before the police that Ganapati has fired the gun but the said fact found mentioned in the F.I.R. The said witness was cross-examined vividly by the defence. Page 11 of 13 P.Ws.1 and 2 happens to be the eye-witnesses. Both the witnesses have given the same narration of incident as has been portrayed by P.W.3. None of the witnesses have attributed any overt act against the present appellant. All of them have only stated that the appellant had accompanied Ganapati and other two accused persons. The two pallets were recovered by digging the wall, which was alleged to have been fired by Ganapati and the same were marked as M.O.I and M.O.II. P.W.6, who is an independent witness, has also testified that he heard the gun shot and went to the house of P.W.3. P.W.6 is also a witness to the extra-judicial confession appears to have been made by Ganapati. 11. If the testimonies of all the witnesses are read conjointly in unison, the prosecution case which evolves from the evidence is that on 05.09.1988 at 8.00 P.M., Ganapati Paik accompanied with other accused persons went to the house of P.W.3 and in presence of his wife and daughter (P.Ws.1 and 2), fired the gun shot, which hit the wall of the house. All the accused persons then fled away from the place of incident after firing the gun shot. No specific overt act is attributed to the present Page 12 of 13 appellant or for that other two accused persons. The other two accused persons namely Gokul Chandra Bisoi and Prafulla Paik those who have accompanied with Ganapati Naik have already been acquitted as stated in the preceding paragraph. Therefore, the inevitable conclusion which needs to be recorded is that the prosecution could not prove its case beyond all reasonable doubt regarding the complicity of the appellant’s involvement in perpetuating the crime. Therefore, the appellant is entitled to the advantage of benefit of doubt. Hence, by extending the benefit of doubt, the appellant is acquitted of all the charges under Sections 307/506/34 of I.P.C. The bail bond furnished stands discharged.
Decision
13. Accordingly, the CRA is allowed and disposed of. 14. This Court acknowledges the effective and meaningful assistance rendered by Mr. Satya Narayan Mishra 4, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as a token of appreciation. The High Court of Orissa, Cuttack. Dated the 9th December, 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 15-Dec-2025 12:11:28 Page 13 of 13 (S.S. Mishra) Judge