The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.119 of 1999 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Sapana @ Sapneswar Naik ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Sudipto Panda, Amicus Curiae For the Respondent : Mr. Sarathi Jyoti Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 12.08.2025 :: Date of Judgment: 19.08.2025 S.S. Mishra, J. The sole appellant-Sapana @ Sapneswar Naik has preferred this appeal against the judgment and order dated 23.12.1998 passed by the learned Sessions Judge, Dhenkanal, Angul in Sessions Trial Case No.5-D of 1997, whereby the learned trial Court found the appellant guilty of the offence under Section 304 Part-II and Section 323 of I.P.C. and sentenced him to undergo R.I. for seven years in lieu of the conviction under Section 304 Part-II of I.P.C. and to undergo R.I. for fifteen days in lieu of the conviction under Section 323 of I.P.C. 2. The present appeal is pending since 13.05.1999. When the matter
Legal Reasoning
was taken up for hearing, Mr. Sudipto Panda, learned counsel submitted that this is an old file being handled by his senior Mr. Brahmananda Panda, who is no more. He also submitted that he does not have the power to appear in the matter. Therefore, this Court requested Mr. Panda, learned counsel 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. Panda, learned Amicus Curiae. 3. Heard Mr. Sudipto Panda, learned Amicus Curiae for the appellant and Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel for the State. 4. The prosecution case in terse and brief is that, on 19.04.1996 while the deceased-Gura Dehury was returning to his village at about 6.00 P.M., after searching for his son in the cashew field, he found Balia Page 2 of 10 Naik (P.W.3) returning to his house ahead of him in the village road. At that time, the appellant suddenly gave a fist blow on the back side neck of P.W.3, for which, the deceased asked the accused as to why he assaulted the old man. It is alleged that the accused-appellant immediately went inside his house and came out with a bow and arrow and shot an arrow, which hit the deceased below his chest. Having sustained an injury, the deceased fell down on the road and he himself extricated that arrow from his body. On the request of the deceased, his eldest son Ranjan Dehury (P.W.1) went to the Gondia P.S. and lodged the F.I.R. (Ext.1). After investigation, charge-sheet was filed and the appellant was stood charged for commission of offence under Section 302 of I.P.C. On his stance of complete denial and claim of trial, he was put to trial. 5. The prosecution in order to bring home the charges examined as many as six witnesses. Out of whom, P.W.1 was the informant, P.W.2 was the doctor, who conducted autopsy over the dead body of the deceased. P.Ws.3, 4 and 5 are the witnesses to the occurrence whereas P.W.6 was the S.I. of Police, who conducted the investigation. Page 3 of 10 6. The learned trial Court by heavily relying upon the testimony of P.Ws.1, 3, 4, and 5, which stood corroborated with the evidence of P.W.2, arrived at the following findings:- “10. Now the next question that falls for adjudication is about the liability of the accused in the aforesaid crime. From the evidence of the eye-witnesses p.ws.3 to 5 with regard to the occurrence, it is clear that it was a sudden affair when the accused suddenly ran to his house and after bringing one bow and arrow shot one arrow which hit the deceased. It is in the evidence of p.w.5 that when 3 to 4 persons, who rushed to the place of occurrence on hearing the shout of the p.w.3, at that point of time the accused questioned them as to if they had gone there to assault him and he then rushed to his house and immediately returned with a bow and arrows to that place. It has been elicited during his cross-examination that the accused after bringing the bow and arrows, did not specifically aimed at the deceased, but towards all the persons who were present there including the 4 persons to whom he had earlier asked as to if they had come to that place to assault him. Similarly, p.ws. 3 and 4 have categorically stated towards the end of their cross-examination that the accused shot an arrow aiming at them. Initially the occurrence started with the assault on the P. w.3 when the accused gave a blow on his back side neck. It was only when the deceased questioned the accused as to why he had assaulted the p.w.3, the latter took exception to the same and went to his house and returned with a bow and arrows and shot an arrow towards the persons assembled at the place of occurrence. Had the deceased not intervened in the matter, in all probability, the accused would not have Page 4 of 10 assaulted him at all and it was unfortunate on the part of the deceased to have intervened between the accused and the p.w.3. What at the most appears to be is that the accused never intended to inflict a particular injury in the particular part of the body of the deceased inasmuch as he shot the arrow aiming at the persons who were present there. In this view of the matter, it cannot be said that he intended to cause the death of the deceased and consequently Clause-Firstly of Sec. 300 I. P. C. is not attracted. Now coming to Clause- Thirdly, the prosecution has to prove that he intended to cause that particular injury which unfortunately resulted into death and shooting an arrow may not surely hit nor can it be said that by shooting an arrow towards several persons, the accused intended to cause that particular injury to the deceased which unfortunately pierced into his body below the chest. So far as the intention, part of it is concerned, under Clause-Thirdly, the circumstances must subjectively prove that the accused intended to cause that particular injury. Though the injuries were sufficient in the ordinary 'course of nature to cause death, it is in evidence that the accused had not positively aimed the shot at the deceased or to any vital part of his body. The affair was not such which would have prompted the accused to cause the death of the deceased, particularly when he had no prior animosity with him. However, by shooting the arrow (M.O.I) the accused must have the knowledge that it was likely to Cause death, in which case it will be a case of culpable homicide not, amounting to murder attracting the liability U/s. 304 Part-II I.P.C.” 7. Aggrieved by the aforementioned finding recorded by the learned Sessions Judge, Dhenkanal, Angul leading to the conviction of the Page 5 of 10 appellant for the offence under Section 304 Part-II read with Section 323 of I.P.C. and sentence on that count, the present Appeal has been preferred by the appellant. 8. At the outset, Mr. Panda, learned Amicus Curiae for the appellant has taken me to the proceeding of this Court dated 11.09.2000, which reads as under:- “Heard Shri S.R. Mohapatra, learned counsel for the appellant-petitioner and Shri G.K. Mohanty, the learned Addl. Government Advocate for the respondent-opposite party. It is noticed that the appellant-petitioner has been sentenced to R.I. for seven years. It is submitted that by now he has already suffered incarceration for more than four years. It is also not likely that the appeal will be taken up early since a number of older Criminal Appeals are pending. Considering the above submission, the prayer of the appellant-petitioner for bail is allowed. Let the petitioner be enlarged on bail for an amount of Rs.15,000/- (Rupees fifteen thousand) with one surety for the like amount to the learned Sessions Judge, Dhenkanal-Angul in Sessions Trial Case No.5-D of 1997. The Misc. Case is disposed of.” satisfaction of the 9. Mr. Panda, learned Amicus Curiae has submitted that during trial, the appellant was arrested on 20.04.1996 and was enlarged on bail on 23.02.1998. The impugned judgment was passed on 23.12.1998 and he Page 6 of 10 was taken into custody. Thereafter, the appellant was released on bail by this Court vide order dated 11.09.2000, which is reproduced above. Therefore, he submitted that the appellant has already undergone custody for about four years out of the total sentence period. Mr. Panda, also submitted that the appellant was 40 years of age at the time of incident i.e. in the year 1996. At present, he is about 70 years of age. 10. Taking into account the entire conspectus of the matter, Mr. Panda, learned Amicus Curiae prefers to confine his argument only limited to the question of quantum of sentence. In that regard, he has relied upon the judgment of the Hon’ble Supreme Court in the case of Gurdeep Singh vrs. Jaswant Singh and others, reported in 1992 Supp (3) SCC 103. The Hon’ble Supreme Court in the aforesaid judgment has altered the sentence of the convict by taking into consideration the fact that the appeal was long pending and the appellant in that case was on bail for about ten years. The Hon’ble Supreme Court altered the conviction from the offence under Section 302 of I.P.C. to that of Section 304 Part-II of I.P.C. and reduced the sentence, the appellant had Page 7 of 10 already undergone. Relevant would be reproduced paragraps-3, 4 and 5, which reads as under:- “3. We have heard learned counsel for parties at length and have been taken through the findings and relevant evidence. We agree with learned counsel for appellant that on the findings recorded by the High Court and in peculiar facts and circumstances of this case accused No.1, i.e., Jaswant Singh having had no intention to cause death of Kesar Singh he could be attributed only with the knowledge that the injury caused by him was likely to cause death. Therefore, on the ratio laid down by this Court in Tholan v. State of T.N. it appears appropriate to convict him under Section 304 Part II. 4. As regards other two accused despite strenuous arguments by the learned counsel for the State of Punjab and the complainant we do not find any good reason to interfere with the finding of the High Court that these appellants did not share the common intention of Appellant 1. They had no doubt come armed with weapons but none of them caused any injury or any vital part of the deceased. The finding of the High Court that the common intention of the appellant was to chastise Kesar Singh and not to kill him, appears to be well founded. 5. In the result, this appeal succeeds and is allowed in part. The conviction of Appellant 1 is altered from Section 302 IPC to 304 Part II IPC. The incident is of 1978. The appellant is on bail for nearly last 10 years. In these circumstances, his sentence is reduced to the period already undergone. He is on bail. His bail bonds are discharged.” Page 8 of 10 11. Mr. Mohanty, learned Additional Standing Counsel for the State does not dispute the contention raised by Mr. Panda, learned Amicus Curiae for the appellant. He has also not disputed the fact that the appellant has already undergone four years of sentence and at present the appellant is about seventy years of age. 12. Taking into consideration the sequence of event unfolded in the present case and the age of the appellant and the fact that the appeal is pending since 1999, the appellant has already on bail since 2000, I am inclined to accede the prayer made by Mr. Panda, learned Amicus Curiae. In view of the same, while affirming the conviction of the appellant for the offence under Section 304 Part-II of I.P.C. and Section 323 of I.P.C., the sentence awarded by the learned Sessions Judge, Dhenkanal, Angul is modified to that of the sentence the appellant has already undergone. The sentence is being reduced to that of the sentence the appellant has already undergone because of the special reasons that the appellant at present is more than 70 years of age and the alleged offence had taken place somewhere in the year 1996. Besides that the Page 9 of 10 prosecution case has been prolonging since last more than twenty-nine years. 13. Accordingly, the appeal is partly allowed. 14. This Court acknowledges the effective and meaningful assistance rendered by Mr. Sudipto Panda, 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. (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 10 of 10