The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.249 of 2010 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Narendra Adjuad and others ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Ashok Kumar Jena, Advocate 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 four appellants conjointly filed the present Criminal Appeal assailing the judgment and order dated 05.04.2010 passed by the learned Additional Sessions Judge, Titilagarh in S.C. Case No.34 of 2009, whereby the appellants were found guilty for the offences under Sections 147/148/323/325/149 of I.P.C. All the four appellants were accordingly sentenced to undergo R.I. for one year on each count under Section 147/148 of I.P.C. and under Section 323 read with Section149 of I.P.C. They were also sentenced to undergo R.I. for three years and to pay a fine of Rs.1000/-, in default, to undergo R.I. for one month for the offence under Section 325 read with Section 149 of I.P.C. 2.
Legal Reasoning
Heard Mr. Ashok Kumar Jena, learned counsel for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State. 3. The prosecution case in terse and brief is that on 05.09.2008 at about 4 P.M., while Hari Bagarty (father-in-law) and Dhrubamani Bagarty (brother-in-law) of the informant were returning from the land to their house, near the ‘Prahari Mandapa’ which was under construction, the brother-in-law of the informant told the accused/appellant No.1 to do the construction work properly. At this, the appellant No.1 being enraged abused Dhrubamani in filthy language, for which, there was exchange of words between them and, thereafter, Hari and Dhrubami returned back to the house. It is alleged that following Page 2 of 10 them, the present appellants came in front of the house of the informant and assaulted by giving fist bows and by chapal to Dhrubamani and laid him down and climbed on him. At that time, when Hari Bagarty tried to separate them, the appellant No.1 inflicted one thenga blow at his right leg and thereafter, they lifted Hari by catching hold of him and threw infront of the house, as a result of which, Hari sustained fracture of his leg. It is also alleged that when the informant went to the spot and forbade assaulting her father-in-law and brother-in-law, they did not pay any heed. Since no vehicle could be arranged on that day, the injured persons could not be taken to the police station. On 06.09.2008 morning, Dhrubamani Bagarty and Hari Bagarty were taken to Titilagarh hospital, where Dhrubamani Bagarty was declared dead. 4. The matter was reported at the police station and on the basis of the aforesaid allegations, the police investigated the case and filed the charge-sheet for the offence punishable under Sections 147/148/302/323/325/355/294/149 of I.P.C. against the accused persons. Accordingly, charges were framed and on the stance of denial and claim of trial, the appellants were put to trial. Page 3 of 10 5. The prosecution in order to establish its case has examined as many as twenty-two witnesses. Out of whom, P.W.1 was the doctor, who had conducted post-mortem examination over the dead body of the deceased-Dhrubamani Bagarty. P.W.2 was the doctor, who had examined the injured-Hari Bagarty. P.W.3 is the sister of the deceased. P.W.16 is the informant of this case. P.W.17 is the injured. P.Ws.18, 19 and 20 are the brothers, grand-son and wife of the injured. P.W.13 is the wife of the brother of the injured-Hari Bagarty. P.W.14 is the daughter- in-law of deceased. P.W.15 is the wife of the deceased. P.Ws.4, 5, 6, 7, 9, 10 and 21 were the witnesses to different seizures. P.W.8 was the driver of a commander jeep by whose vehicle, the deceased was taken to the hospital. P.W.11 was the independent eye witness to the occurrence. P.W.12 was the Revenue Inspector, who had demarcated the occurrence spot and P.W.22 was the I.O. of the case. No witness has been examined on behalf of the defence. 6. Mr. Jena, learned counsel for the appellants, at the outset, submitted that he would confine his argument limited to the question of Page 4 of 10 sentence instead of challenging the conviction recorded against the appellants. Mr. Dash, learned Additional Standing Counsel for the State has on objection to the same. 7. In the light of the same, I proceed to decide the appeal. Initially the appellants were charged for the offences under Sections 294/323/325/302/355 read with Section 149 of I.P.C. 8. On the analysis of the entire evidence on record, the learned trial Court found the appellants not guilty for the offence under Section 302 of I.P.C. rather convicted the appellants for the offences under Sections 325 of I.P.C. along with other offences. The reasoning recorded by the learned trial Court largely reflecting in paragraph-10 of the judgment, which reads as under:- “10. Now, it is to be examined if the accused persons had assaulted Dhrubamani Bagarty with intention to kill him. None of the eye witnesses to the occurrence has given out in his evidence that the accused persons had any intention to kill Dhrubanani Bagarty. No doubt, in the instant case, on the next day of assault on Dhrubamani by the accused persons, Dhrubament died. Since there is no direct evidence as to whether the accused persons had any intention to kill Dhrubanani, the same can be inferred from the facts and Page 5 of 10 circumstances of the case, nature of weapon used while assaulting Dhrubamani and severity of the blow given to him etc. In the instant case, it is clear from the medical evidence of P.W.1 as well as P.M. examination report vide Ext.1 that there was no internally injury in the body of the deceased- Dhrubamani. Only some abrosious were present on the right knee, joint, left knee joint, left shoulder joint etc. The evidence of eye witnesses as discussed earlier only reveals that Dhrubawani was made lie on the ground and he was given kicks by the accused persons by climbing over him. From the aforesaid evidence on record, it cannot be inferred that the accused persons had any intention to kill Dhrubamani. In the case of State of Andhra Pradesh -Vrs. Maraguden Papi Ready and others, reported in (2004) 27 OCR (S.C.)790, relied on by the learned Advocate for the accused persons, there was allegation of assault by sticks, iron rods and knives on all over the body of the deceased and other witnesses. Injuries suffered are minor in nature which are mostly in nature of abrasion and that too on non vital parts. There was no incised injuries on the body of the deceased corresponding to use of sharp edged weapon. Therefore, in that case it was held by our Hon’ble Supreme Court that intention of the assaultants to murder the victim is difficult to comprehend. In the case of Adhikari Baga and others vrs. State of Orissa, reported in 101 (2006) CLT 729, relied on by the learned Advocate for the accused persons; all the appellants dealt lathi blows mostly on the hands and legs and even after P.W.2 fell down no blow was given on his head or vital part of the body. Therefore, in that case it was held by our Hon'ble High Court that even though the appellants had common object of attacking P.W. 2, they never had any object of causing death to him. Therefore, in that case, the order of conviction U/s.307 was held to be not sustainable against the appellants and order of conviction and sentence passed by the learned Sessions Judge was modified to one U/s. 148/325/149 IPC. In the case of Predeep Kumar Sahu vrs. State of Orissa, reported in (2005) 31-OCR- 755, relied on by the learned Advocate for the accused persons; none of the P.Ws. came with the story that the Page 6 of 10 appellant and other culprits had any intention to kill the deceased. Even though one of the culprit was armed with gun but he did not use it. As per the medical evidence there are 10 injuries on the non-vital part of the body like legs and arms though the injuries were opined collectively fatal and can result death of a person in ordinary cause of nature but non of them are individually fatal. Therefore, in that case it was held by our Hon’ble High Court that the trial court was justified in converting the offence from U/s. 302/149 IPC to U/s. 326/149 IPC. In view of the aforesaid settled principle of law, in the present case under consideration also, it cannot be held that the accused persons had assaulted Dhrubamani Bagarty with intention to kill him as none of the P.Ws. had stated that the accused persons had any intention to kill Dhrubamani Bagarty. Moreover, the injuries on the person of Dhrubamani found were only abranious injuries and there is no evidence on record that any weapon was used while assaulting Dhrubamani by the accused persons. The injuries found on the person of Dhrubamani was also not on vital parts. Therefore, in the present case under consideration the accused persons cannot be held guilty to have committed any offence U/s. 302 IPC read with Sec. 149 I.P.C.” 9. The learned trial court has meticulously dealt with the evidence brought on record and has rightly appreciated the evidence. In absence of any challenge to the judgment by the State in so far as recording of acquittal in favour of the appellants of the charges under Sections 302/149 of I.P.C., I need not venture into the same. Since the appellants have now conceded to the conviction and chose not to challenge the same, this Court also need not advert to the merits of the case, however, Page 7 of 10 suffice it to say that the conviction recorded by the learned trial Court stands affirmed. 10. Mr. Jena, learned counsel for the appellants while arguing on sentence submitted that the appellant No.1 is at present 86 years of age whereas appellant Nos.2, 3 and 4 are 40, 51 and 41 years of age respectively. The incident had taken place on 05.09.2008. They had undergone ordeal of trial for about two years and all of them have been convicted by the impugned judgment dated 05.04.2010. The present appeal is pending for last fifteen years before this Court. All the accused persons were arrested on 07.09.2008. The appellant No.1 was enlarged on bail on 29.01.2010 whereas appellant Nos.2 and 3 were admitted to bail on 28.10.2009 and the appellant No.4 was granted bail on 10.09.2009. Accordingly, Mr. Jena, learned counsel for the appellants submitted that the appellant No.1 has already undergone incarceration for a period of one year five months whereas appellant Nos.2 and 3 have already undergone custody for one year two months and the appellant No.4 has already undergone about one year. Page 8 of 10 11. In the aforementioned premises, Mr. Jena, learned counsel for the appellants submitted that the period of substantive sentence of three years may be reduced down to the period the appellants have already undergone. 12. I see merit on the submission made by the learned counsel for the appellants. Accordingly, while affirming the conviction recorded by the learned trial Court against the appellants for the offences under Sections 147/148/323/325/149 of I.P.C., I modify the sentence to that of the sentence the appellants have already undergone. However, the appellant No.1 is liable to pay a fine of Rs.5,000/- (Rupees five thousand) over and above the sentence period he has already undergone and appellant Nos.2 and 3 are liable to pay a fine of Rs.5000/- (Rupees five thousand) each whereas appellant No.4 is liable to pay a fine of Rs.3000/- (Rupees three thousand), in default of making the payment, the appellants shall undergo R.I. for two months. The fine amount to be deposited shall be disbursed to the victim in accordance with the procedure established under Section 357 Cr.P.C. Page 9 of 10 13. Accordingly, the CRLA is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 9th September, 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 15-Sep-2025 13:17:44 Page 10 of 10