The High Court
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THE HIGH COURT OF ORISSA AT CUTTACK CRA No.257 of 1995 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Tadingi Domuri and others ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Ms. Upasika Samantaray, Amicus Curiae For the Respondent : Mr. Raj Bhusan Dash, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 21.08.2025 :: Date of Judgment: 09.09.2025 S.S. Mishra, J. The present Criminal Appeal is filed by the appellants under Sections 374(2) of the Cr.P.C., is directed against the judgment and order 24.08.1995 passed by the learned Additional Sessions Judge,
Legal Reasoning
Jeypore in Sessions Case No. 82 of 1994, arising out of G.R. Case No. 348 of 1994, whereby the appellants were convicted under Section 324/34 I.P.C. and sentenced to undergo rigorous imprisonment for one year each. 2. Pursuant to the order of this Court dated 27.03.2025, a report was received from the Inspector-in-Charge, Pottangi Police Station on 19.04.2025, stating that appellant No.1-Tadingi Domuri, has expired about thirty years ago and appellant No.2-Tadingi Sashi, has expired about ten months back. Hence, the appeal, so far as it relates to appellant nos.1 and 2, stands abated. The present appeal, therefore, survives only with respect to appellant No.3, namely, Tadingi Ranju. 3. The present appeal is pending since 07.09.1995. When the matter was taken up for hearing on 31.07.2025, none has appeared on behalf of the appellants. Therefore, this Court
Legal Reasoning
requested Mr. Lalatendu Samantaray, learned counsel, who is 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. Samantaray. Page 2 of 10 4. Heard Mr. Lalatendu Samantaray, learned counsel along with Ms. Upasika Samantaray, learned Amicus Curiae appearing for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State. 5. The prosecution case, in brief, is that the informant Hiridika Saba had married to Raja, the daughter of accused Tadingi Domuri (appellant No.1). Subsequently, Raja went to her father’s house and there accepted the son of one Mandangi Relly of Narangipadar as her second husband. The informant and some villagers, including the deceased Hiridika Lacheya, therefore, demanded kanya sulka from the family. On 04.03.1994, the informant and others went to the village of the accused persons and, being told that kanya sulka would be paid by Mandangi Relly of Narangipadar, proceeded to that village along with the accused persons. At Narangipadar, Mandangi Relly gave four fowls and rice to them for cooking. When the deceased was carrying another fowl towards the cooking spot, it is alleged that he was waylaid and assaulted by the accused persons with fist blows, kicks and stones. On hearing his cries, P.Ws.1 and 2 rushed to the spot and claimed to have witnessed the Page 3 of 10 assault. The deceased was shifted to hospital and treated, but ultimately succumbed to death on 18.03.1994. On the basis of such allegation, the police investigated the case and after completion of investigation, filed charge-sheet for the offence under section 302/34 of I.P.C. against the accused persons. 6. The prosecution in order to bring home charges examined thirteen witnesses including two claimed eye-witnesses (P.Ws.1 and 2) and the doctor (P.W.10). The defence plea was one of false implication, contending that after receipt of kanya sulka, the villagers consumed liquor and a fight broke out, as a result, the villagers assaulted each other. One witness was examined on behalf of the defence. 7. Upon appreciation of evidence, the learned trial Court held that the prosecution failed to establish the charge under Section 302/34 of I.P.C., as the medical evidence indicated that death was the result of encephalitis and brain infection, not the direct consequence of assault. The learned trial Court, however, found that the accused persons had indeed assaulted the deceased by fists, kicks and pelting of stones, and accordingly convicted them under Section 324/34 of I.P.C. and Page 4 of 10 sentenced them to rigorous imprisonment for one year each. The learned trial Court, after credible analysis, has arrived at the following findings:- “7. It is manifestly clear from the sworn testimony of P.Ws. 1 and 2 that while the deceased taking the fifth fowl was proceeding towards the place where the cooking was to be done. The deceased raised hullah and hearing his hullah both of them going to the spot from the place of discussion found that the accused persons were assaulting the deceased by fist blows, kicks and throwing stones towards him. According to them, accused Tadingi Sashi, Tadingi Dumuri dealt fist and kick blows on different parts of the body of the deceased and accused Tadingi Ranju threw four stones which hit the deceased. It is further disclosed from their evidence that the deceased due to assault by the accused persons fell down on the ground and they alongwith others of their village brought the deceased to their village on the following Saturday. P.ws. 3 and 4 being informed by P.W.2 came from the place of discussion to the spot. P.W.7 was present at the place where cooking was to be done. P.W.7 on receipt of information from P.W.2 about the assault to the deceased by the accused persons also came to the spot. All of them noticed that deceased was lying on the ground sustaining injuries on his fore-head, neck, back etc. Assertions of P.W.1 and 2 relating to assault and infliction of injuries also find ample support from the medical evidence on record. From the spot also blood-stained earth and four stones were seized by the I.O. on 8.3.94 and one of such stones was bearing stain of blood. Such seizure also supports the story of assault as stated by P.Ws. 1 and 2. There is absolutely no reason why reliance will not be placed on the Page 5 of 10 direct evidence of P.Ws. 1 and 2 so far as the assault and the infliction of injuries are concerned. It is thus well established from the direct testimony of P.Ws. 1 and 2 coupled with other circumstances as discussed above that the accused persons in furtherance of their common intention had assaulted the deceased at the time of occurrence by fist blows, kicks and pelting stones towards him. 8. It is stated by D.W.1 in his evidence that on receipt of Rs. 2,000/- towards kanya Sulka from Mandangi Relly the people of village Bhittarpada and Bari went away and no such incident as alleged had taken place in his village. D.W.1 is none else but the Samudhi of accused Tadingi Dumuri. He being an interested person is expected to depose some thing which would be favourable to the accused persons. But his above assertion can never be relied upon in view of my finding that the accused persons in furtherance of their common intention had assaulted the deceased by fist blows and kicks and pelting stones towards him at the relevant is accordingly discarded. time. The evidence of D.W.1 9. It has been already pointed out above that the death of the deceased was not the direct result of assault by the accused persons. It was also not within their knowledge that brain matter of the deceased would be infected through the injury to the eye. There was no intention on their part to kill the deceased while they were assaulting him by fist blows, kicks and pelting stones towards him. On account of demand for kanya Sulka from Mandangi Relly the accused persons out of anger have assaulted the deceased in the above manner at the time of Page 6 of 10 occurrence. In these circumstances they cannot be held guilty U/S. 302 I.P.C. but they are found to have committed offence U/S. 324/34 IPC. In result, therefore, I hold the accused persons guilty of the offence U/S. 324/34 I.P.C. and convict them thereunder. Considering the circumstances in which the offence was committed and its far reaching effect I am not inclined to extend the benefits of P.O. Act to the accused persons.” 8. Ms. Samantaray, learned Amicus Curiae appearing for the appellants, contended that even if the evidence of P.Ws.1 and 2 is taken at its face value, the use of stones by bare hands without any sharp edge cannot be treated as use of a deadly weapon within the meaning of Section 324 of I.P.C. At best, the offence would fall under Section 323 of I.P.C. It was further urged that the occurrence took place more than three decades back, the appellant No.3 has already undergone one month of custody during trial, and he has been facing protracted litigation for thirty years. In such circumstances, it was prayed that the sentence may be suitably modified. 9. On a careful consideration of the evidence, this Court finds that the testimony of P.Ws.1 and 2, corroborated by medical evidence, Page 7 of 10 establishes that the appellant No.3, along with others, did assault the deceased. However, the medical evidence does not show any injury caused by a deadly weapon, and the use of stones by hand in the manner alleged does not amount to the use of a dangerous weapon or means. The offence, therefore, is more appropriately punishable under Section 323/34 of I.P.C rather than Section 324/34 of I.P.C. 10. Considering the nature of the assault, absence of premeditation, lack of intention to cause death, and the fact that the direct cause of death was not the assault but encephalitis, this Court holds that the conviction of the appellant No.3 under Section 324/34 of I.P.C. cannot be sustained and is accordingly altered to one under Section 323/34 of I.P.C. 11. Coming to the question of sentence, it is noted that the appellant No.3 has already undergone about one month of custody during the trial. The incident occurred in 1994, more than thirty years old. The appellant No.3 is now an aged person and has faced the trauma of criminal proceedings for a considerable length of time. Taking into account these mitigating circumstances, this Court is of the considered opinion that the Page 8 of 10 sentence already undergone by the appellant No.3, together with a fine would meet the ends of justice. 12. The conviction of the appellant No.3 under Section 324/34 of I.P.C. is set aside and altered to one under Section 323/34 of I.P.C. with the modified sentence as indicated above. The appeal, so far as it relates to appellant nos.1 and 2, stands abated due to their death. Accordingly, the appellant no.3-Tadingi Ranju, is sentenced to the period already undergone (about one month) and to pay a fine of Rs.5,000/- (Rupees Five Thousand only), in default of payment of which, he shall undergo further simple imprisonment for fifteen days. The fine amount to be deposited by the appellant No.3 shall be disbursed to the wife of the deceased in accordance with the provision under Section 357 Cr.P.C. 13. With the above modification in conviction and sentence, the Criminal Appeal is partly allowed. 14. This Court acknowledges the effective and meaningful assistance rendered by Ms. Upasikha Samantray, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- Page 9 of 10 (Rupees seven thousand five hundred) to be paid as a token of appreciation. (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: 10-Sep-2025 18:51:46 Page 10 of 10