Orissa High Court
Chandia @ Chandi Sethy vs State Of Odisha on 11 August, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
Criminal Appeal No.248 of 1998
An appeal from judgment and order dated 22.09.1998 passed by
the Addl. Sessions Judge, Kendrapara in S.T. No.43/455 of 1996.
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1. Chandia @ Chandi Sethy
2. Karunakar Sethy @ Nandu
3. Bulu Sethy
4. Premananda Sethy
5. Suratha Sethy
6. Basanta Sethy ....... Appellants
-Versus-
State of Odisha ....... Respondent
For Appellants: - Miss Adyashakti Priya
Advocate
For Respondent: - Mr. Aurovinda Mohanty
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing: 24.07.2025 Date of Judgment: 11.08.2025
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JCRLA No.248 of 1998 Page 1 of 64
S.K. Sahoo, J. "Neither a borrower nor a lender be. For loan doth oft
lose both itself and friend, and borrowing dulls the
edge of husbandry".
This famous quote was spoken by the character
Polonius, King Claudius‟ Chief Minister as he gives advice to his
son Laertes, while he is leaving for University in Paris in
Shakespeare‟s play Hamlet. This advice emphasises the potential
negative consequences of both lending and borrowing money,
particularly in the context of relationships.
The case in hand depicts a painful and distressing
event of double murder committed in front of the relations on
the village street just in connection with non-payment of paltry
loan amount of Rs.1,000/- (rupees one thousand only).
2. The appellants Chandia @ Chandi Sethy (A-1),
Karunakar Sethy @ Nandu (A-2), Bulu Sethy (A-3), Premananda
Sethy (A-4), Suratha Sethy (A-5) and Basanta Sethy (A-6) along
with Bhramar Sethy, Dhruba Sethy and Kulamani Sethy
preferred this criminal appeal, however during pendency of the
appeal, Bhramar Sethy, Dhruba Sethy and Kulamani Sethy
expired and accordingly, as per order dated 10.09.2024, the
criminal appeal was directed to be abated in respect of those
JCRLA No.248 of 1998 Page 2 of 64
three appellants. Thus, this criminal appeal survives only in
respect of appellants, namely, Chandia @ Chandi Sethy (A-1),
Karunakar Sethy @ Nandu (A-2), Bulu Sethy (A-3), Premananda
Sethy (A-4), Suratha Sethy (A-5) and Basanta Sethy (A-6).
3. In the Court of learned Additional Sessions Judge,
Kendrapara (hereafter, „trial Court‟) in Sessions Trial No.43/455
of 1996, the appellants, namely, Chandia @ Chandi Sethy (A-1),
Karunakar Sethy @ Nandu (A-2), Bulu Sethy (A-3) and Basanta
Sethy (A-6) were charged under sections 302/34 of the Indian
Penal Code (hereafter, „I.P.C.‟) on the accusation that on
19.06.1996 at about 7.30 a.m. at village Indupur under
Kendrapara police station, they attacked and assaulted
Sankarsan Sethy (hereinafter, „D-1‟), the son of the informant
(P.W.7) and Babuli Sethy (hereinafter, „D-2‟) by means of
crowbar, spear, bhujali etc. who succumbed to the injuries at
District Headquarters Hospital, Kendrapara. Similarly, the
appellants, namely, Bhramar Sethy (Dead), Dhruba Sethy
(Dead), Kulamani Sethy (Dead), Premananda Sethy (A-4) and
Suratha Sethy (A-5) were charged under sections 302/149 of the
I.P.C. on the accusation that on said date, time and place of
occurrence, they caused the death of D-1 and D-2 by means of
bhujali, spear, lathi etc.
JCRLA No.248 of 1998 Page 3 of 64
The learned trial Court vide impugned judgment and
order dated 22.09.1998 found the appellants, namely, A-1
Chandia @ Chandi Sethy, A-2 Karunakar Sethy @ Nandu, A-3
Bulu Sethy and A-6 Basanta Sethy guilty under section 302/34 of
the I.P.C. and the appellants, namely, Bhramar Sethy (dead),
Dhruba Sethy (dead), Kulamani Sethy (dead), A-4 Premananda
Sethy and A-5 Suratha Sethy guilty under section 302/149 of the
I.P.C. and sentenced each of them to undergo rigorous
imprisonment for life and to pay a fine of Rs.5000/- (five
thousand) each, in default, to undergo R.I. for six months.
Prosecution Case:
4. The prosecution case, as per the first information
report (hereinafter „F.I.R.‟) (Ext.4) lodged by Brahmananda
Sethy (P.W.7), the father of D-1 on 19.06.1996 at Kendrapara
police station, in short, is that his youngest son (D-1) was
maintaining his livelihood by catching and selling fish. About one
and half year prior to the date of occurrence, D-1 had given a
hand loan of Rs.1,000/- (rupees one thousand) to A-2 Karunakar
Sethy @ Nandu, who was his neighbour. In spite of several
approaches to A-2, D-1 could not get back the loan amount. D-1
was taken into custody in connection with a rape case and
lodged in Kendrapara Jail. While he was in jail custody, A-2
JCRLA No.248 of 1998 Page 4 of 64
Karunakar Sethy @ Nandu who had borrowed money from D-1,
paid Rs.200/- (rupees two hundred) to D-1 for his expenses. D-1
was released from jail fifteen to twenty days prior to the
occurrence and he approached A-2 Karunakar Sethy @ Nandu
for repayment of the loan amount. D-2 was the brother-in-law of
D-1. Since two to three days prior to the occurrence, D-2 was
staying in the house of D-1. Two days prior to the occurrence,
both D-1 and D-2 asked A-2 Karunakar Sethy @ Nandu at
Tinimuhani, Kendrapara for repayment of the loan amount, for
which there were some altercations amongst them.
It is further stated in the F.I.R. that on the date of
occurrence i.e. 19.06.1996 at about 7.00 a.m., A-2 Karunakar
Sethy @ Nandu came to the house of D-1 and asked him to
come to Chandi temple of the village to get refund of the loan
amount. Accordingly, D-1 and D-2 came out of the house and
proceeded towards Chandi temple. On the village road, A-2
Karunakar Sethy @ Nandu and A-6 Basanta Sethy being armed
with tentas, A-3 Bulu Sethi with a crowbar, A-1 Chandia @
Chandi Sethy being armed with bhujali and other appellants
being armed with lathis surrounded them and assaulted them.
They tied both D-1 and D-2 with rope and brought them in front
of their houses and assaulted them by means of bhujalis, lathis,
JCRLA No.248 of 1998 Page 5 of 64
crowbars and tentas causing multiple injuries on both the
deceased who fell down on the ground in senseless condition.
The appellants threatened the informant (P.W.7) not to come to
the rescue, removed the rope and left the spot with weapons
thinking that D-1 and D-2 were dead. P.W.7 then called an auto
rickshaw and removed both D-1 and D-2 for treatment to the
hospital. D-2 died on the way to the hospital and D-1 was taken
to Kendrapara hospital and admitted there for his treatment.
On the oral report of P.W.7, the I.I.C., Kendrapara
P.S., namely, Pratap Chandra Samal (P.W.10) registered
Kendrapara P.S. Case No.216 dated 19.06.1996 under sections
147/148/302/326/307/149 of the I.P.C. against the appellants
and the other three appellants who are now dead and also took
up investigation of the case.
During the course of investigation, P.W.10 gave
requisition to the S.I. of Police, Sri P.K. Jena (P.W.8) to proceed
to District Headquarters Hospital, Kendrapara to hold inquest
over the dead body of D-2, issued requisition for medical
examination of D-1 and he immediately visited the spot. P.W.10
seized some blood stained earth and sample earth as per seizure
lists Ext.8 and Ext.9 and he preserved all the seized materials in
a sealed cover and examined the witnesses and he searched the
JCRLA No.248 of 1998 Page 6 of 64
houses of the appellants and all of them were found absconding.
P.W.10 received information at 2.10 p.m. on 19.06.1996 over
V.H.F. that the injured D-1, who was admitted and undergoing
treatment in District Headquarters Hospital, Kendrapara
succumbed to the injuries. Accordingly, he passed instruction to
P.W.8 to hold inquest over the dead body of D-1 and to send the
body for post mortem examination. P.W.10 returned to the
police station and took charge of supplementary C.D. from
P.W.8. On 21.06.1996, he arrested the appellant Bhramar Sethy
(dead) and A-1 Chandia @ Chandi Sethy of village Indupur and
interrogated them separately. He also recovered the plastic rope
stained with blood at the instance of A-1 Chandia @ Chandi
Sethy and seized the same as per seizure list Ext.10 and he also
recovered five bamboo lathis of different sizes and a spear, iron
blade which were having stains of blood and seized the same as
per seizure list Ext.1/1. On 22.06.1996, he forwarded the
appellants to the Court of learned S.D.J.M., Kendrapara and
prayed to remand them. On 25.06.1996, he received post
mortem report of D-1. The exhibits were dispatched through the
Court of learned S.D.J.M., Kendrapara to the Director, S.F.S.L.,
Rasulgarh as per forwarding report Ext.11 for chemical analysis
and on completion of investigation, he submitted charge sheet
JCRLA No.248 of 1998 Page 7 of 64
against the appellants and the other three appellants who are
now dead on 18.09.1996 under sections 147/148/302/149 of the
I.P.C.
Framing of Charges:
5. After submission of charge sheet, the case was
committed to the Court of Session after complying due
formalities. The learned trial Court framed charges against the
appellants as aforesaid and since the appellants refuted the
charges, pleaded not guilty and claimed to be tried, the sessions
trial procedure was resorted to prosecute them and establish
their guilt.
Prosecution Witnesses, Exhibits and Material Objects:
6. During the course of trial, in order to prove its case,
the prosecution has examined as many as ten witnesses.
P.W.1 Bhagabata Sethi and P.W.6 Kartika Sethy are
the two independent witnesses who were examined to depose
about the seizure of weapons, but they did not support the
prosecution case for which they were declared hostile.
P.W.2 Rasmita Sethi is the wife of D-1 Sankarsan
Sethy and sister-in-law of D-2 Babuli Sethy. She is an eye
witness to the occurrence and she supported the prosecution
case.
JCRLA No.248 of 1998 Page 8 of 64
P.W.3 Dharanidhar Sethy is a witness to the seizure
of wearing apparels of D-2 Babuli Sethy as per seizure list Ext.2
and also a witness to the inquest over the dead body of D-2 at
Kendrapara District Headquarters Hospital as per inquest report
marked as Ext.3. He stated that D-2 had sustained a severe
injury on the right leg (ankle joint) and he noticed fracture on
the right hand, left leg over the forehead of D-2.
P.W.4 Arati Sethy and P.W.5 Premalata Sethy are
sisters-in-law of D-1 Sankarsan Sethy. They are also the eye
witnesses to the occurrence and they supported the prosecution
case.
P.W.7 Brahmananda Sethy, the father of D-1
Sankarsan Sethy is the informant in the case and he is also an
eye witness to the occurrence. He is a witness to the inquest
over the dead body of D-1 as per inquest report marked as
Ext.5. He supported the prosecution case.
P.W.8 Pradyumna Kumar Jena was working as the
S.I. of Police attached to Kendrapara police station. He stated
that as per the direction of P.W.10, he held inquest over the
dead body of D-2 Babuli Sethy and prepared the inquest report
vide Ext.3. He examined the inquest witnesses and seized the
wearing apparels of the deceased as per seizure list Ext.2 and
JCRLA No.248 of 1998 Page 9 of 64
examined the seizure witnesses. He further stated to have held
inquest over the dead body of D-1 Sankarsan Sethy and
prepared the inquest report vide Ext.5.
P.W.9 Dr. Manorama Dei was working as Assistant
Surgeon at District Headquarters Hospital, Kendrapara, who on
police requisition conducted post mortem examination over the
dead body of D-1 Sankarsan Sethy and D-2 Babuli Sethy and
proved her reports vide Ext.6 and Ext.7 respectively.
P.W.10 Pratap Chandra Samal was working as the
I.I.C. of Kendrapara police station and he is the Investigating
Officer of the case.
The prosecution exhibited twelve documents. Ext.1/1
is the seizure list of lathis, a spear and iron blade, Ext.2 is the
seizure list of wearing apparels of D-2 Babuli Sethy, Ext.3 is the
inquest report of D-2 Babuli Sethy, Ext.4 is the written F.I.R.,
Ext.5 is the inquest report of D-1 Sankarsan Sethy, Ext.6 is the
post mortem report of D-1 Sankarsan Sethy, Ext.7 is the post
mortem report of D-2 Babuli Sethy, Ext.8 is the seizure list of
blood stained earth and sample earth, Ext.9 is the seizure list of
blood stained earth, Ext.10 is the seizure list of plastic rope,
Ext.11 is the forwarding report of exhibits to the S.F.S.L.,
Rasulgarh, Bhubaneswar and Ext.12 is the C.E. Report.
JCRLA No.248 of 1998 Page 10 of 64
The prosecution also proved five material objects.
M.O.I to M.O.IV are the bamboo lathis and M.O.V is the nylon
rope.
Defence Plea:
7. The defence plea of the appellantswas one of
denialand it was pleaded that there was hitch between the two
deceased relating to money matters and they fought with each
other taking liquor and fell on the ground and sustained injuries
and due to previous litigation and enmity between the parties, a
false case has been foisted. Defence has neither examined any
witness nor exhibited any document.
Findings of the Trial Court:
8. The learned trial Court after assessing the oral as
well as documentary evidence available on record, came to hold
that in the light of consistent evidence given by P.Ws.2, 4, 5 and
7, it is to be accepted that two deceased were injured on the
date, time and place and also in the manner alleged by the
prosecution. The evidence of eye witnesses were held to be
credible and trustworthy, corroborated by the medical evidence.
It was further held that the question of sustaining multiple
abrasions on the person of the deceased persons due to dragging
does not arise as the witnesses have stated that the deceased
JCRLA No.248 of 1998 Page 11 of 64
persons never fell down on the ground when they were dragged
by the accused persons. Coming to the defence story, it was held
that no witness was examined by the defence in support of the
defence plea. The doctor who conducted post mortem
examination did not find alcohol in the stomach of the deceased
persons and as no multiple abrasions were found on the persons
of deceased, the story of rolling down on the road by the
deceased persons by taking liquor does not arise. From the
evidence of the eye witnesses, namely, P.Ws.2, 4, 5 and 7
regarding inconsistencies in the statements, it was held that it is
not possible to see minutely and give statements with regard to
the incident, particularly when one of the injured i.e. D-2 Babuli
Sethy died and the death knell was ringing at the face of D-1
Sankarsan Sethy and the inmates were in panic state and in
these circumstances, discrepancies were bound to occur and on
that score only, the evidence cannot be brushed aside. The
learned trial Court further held that there was no deliberate
delay in lodging the F.I.R. and it has been satisfactorily explained
by the informant. The learned trial Court further held that when
all the appellants were armed with deadly weapons and came
and participated in the murderous assault, their action implied
that they were the members of unlawful assembly and shared
JCRLA No.248 of 1998 Page 12 of 64
common object. The learned trial Court further held that in view
of nature of injuries found on the dead bodies of D-1 and D-2
and the weapons of assault in the hands of the appellants, there
is no difficulty to hold that all the appellants had shared the
common intention of killing the deceased persons and with
different deadly weapons in their hands, the appellants
mercilessly assaulted the deceased persons, killed them and
accordingly, held the appellants guilty as aforesaid.
Contentions of the Parties:
9. Miss Adyashakti Priya, learned counsel appearing for
the appellants argued that there has been delayed dispatch of
the first information report to Court and the prosecution has not
come up with any explanation in that respect, which creates
doubt about the prosecution case as there was enough time on
the part of the investigating agency to manipulate the same.
She argued that the first information report does not
indicate the details of the occurrence and therefore, there was
every scope on the part of the prosecution to develop its case at
a later stage after registration of the F.I.R.
She argued that all the eye witnesses are related to
the deceased and independent witnesses though present at the
scene of occurrence were not examined. The prosecution had
JCRLA No.248 of 1998 Page 13 of 64
ample opportunity to examine neighbours or community
members, but it has failed to do so. It is further contended that
the prosecution has not examined the eye witnesses named in
the F.I.R. and no explanation has also been offered to that effect
and thus, the prosecution has not come up with clean hand to
prove its case.
According to the learned counsel, since none of the
related witnesses came forward to the rescue of the deceased
persons, their conduct speaks volume with regard their alleged
presence at the time of the occurrence as eye witnesses.
She further highlighted the laches on the part of the
I.O. (P.W.10) in not taking any steps for recording the dying
declaration of D-1 Sankarsan Sethy who was hospitalized in
District Headquarters Hospital, Kendrapara, in not preparing the
spot map or site plan of the alleged place of occurrence showing
the site of the alleged assault, the spot where the deceased were
tied and dragged, the location of the eye witnesses, the direction
and movement of the parties, bloodstains marks and rope
traces.
She further argued that the F.S.L. report (Ext.12)
ought to have been proved by summoning the expert who
prepared it, but the I.O. marked it as an exhibit and therefore,
JCRLA No.248 of 1998 Page 14 of 64
the finding recorded therein cannot be used against the
appellants.
Learned counsel further argued that there are
discrepancies in the ocular testimony vis-à-vis the medical
evidence. As per the post mortem report, the doctor (P.W.9)
noticed fewer injuries than as alleged by the eye witnesses and
there were no injuries from ropes or dragging. No fractures or
deep cuts matching bhujali, crowbar or grinding stone blows
were found and the doctor admits that the injuries could result
from scuffle on road which is the defence plea. She further
argued that this mismatch not only discredits the prosecution
case but also affirms that the eyewitnesses are exaggerating or
reconstructing events.
She further argued that there is no evidence of prior
meeting of minds or sharing of common intention by the
appellants or forming an unlawful assembly and assaulting the
deceased persons in prosecution of the common object. Except
A-2 Karunakar Sethy @ Nandu, the other appellants had no
animosity with the deceased persons and no evidence is
forthcoming as to why they would join A-2 in the assault of the
deceased persons. She argued that the prosecution alleges
simultaneous assault, but fails to attribute specific and consistent
JCRLA No.248 of 1998 Page 15 of 64
role of any of the appellants and therefore, it is a fit case for
granting benefit of doubt in favour of the appellants.
In support of her contention, learned counsel for the
appellants placed reliance in the cases of Chhote Lal -Vrs.-
Rohtash and others reported in (2023) SCC OnLine SC
1675, Krishna Govind Patil -Vrs.- State of Maharashtra
reported in A.I.R. 1963 S.C. 1413, Sunil -Vrs.- State of NCT
of Delhi reported in A.I.R. 2023 S.C. 4822, Lakshmi Singh
and others -Vrs.- State of Bihar reported in (1976) 4
Supreme Court Cases 394, Dilawar Singh -Vrs.- State of
Delhi reported in (2007) 12 Supreme Court Cases 641,
Benguli @ Subarna Khuntia and others -Vrs.- State of
Orissa reported in 1984 Cuttack Law Reports 364 and
State of Punjab -Vrs.- Sucha Singh and others reported in
(2003) 3 Supreme Court Cases 153.
10. Mr. Aurobinda Mohanty, learned Additional Standing
Counsel appearing for the State of Odisha, on the other hand,
supported the impugned judgment and submitted that there is
hardly any delay in lodging the F.I.R. as the informant (P.W.7)
first took steps in shifting the deceased persons to the hospital
to save their lives after the accused persons left the spot and in
spite of speedy steps being taken, one of the deceased died and
JCRLA No.248 of 1998 Page 16 of 64
the other remained in critical condition when P.W.7 came to the
police station to lodge the F.I.R. He argued that there is no
delayed dispatch of the F.I.R. to Court as the F.I.R. was lodged
on 19.06.1996 at 11 a.m. and the I.O. remained busy in
investigation and on the very next day, he dispatched the F.I.R.
to Court and it was also placed before the Magistrate on the
same day.
He further argued that the state of mind of the
informant at the time of lodging can very well be imagined as his
injured son D-1 was in the hospital in a critical condition and
another close relative D-2 had lost his life and therefore, it is too
much to expect a rustic person like the informant to lodge a
detailed F.I.R. in that condition.
He further argued that mere relationship of the eye
witnesses with the deceased cannot be ground to disbelieve their
testimonies. Similarly, merely because the independent
witnesses did not come forward to support the prosecution case
and even though the F.I.R. named witnesses were not examined
by the prosecution during trial, it does not make the prosecution
case vulnerable. He urged that it is quality of evidence and not
quantity of evidence which is material.
JCRLA No.248 of 1998 Page 17 of 64
He argued that when so many accused persons being
armed with different weapons were assaulting the deceased
persons, the related eye witnesses might not be having courage
to come forward to the rescue and thus it cannot be said to be
an unusual conduct on their part to create doubt about their
presence at the scene of crime.
He further argued that lacunas, if any, on the part of
the investigating officer in not taking any steps for recording the
dying declaration of D-1 who died within few hours of lodging of
F.I.R. or not preparing spot map cannot be a ground to discard
the prosecution case.
He further argued that Forensic Science Laboratory
(FSL) report has been marked as Ext.12 through the I.O. without
objection from defence and no application has been filed by the
defence for summoning the expert. Therefore, there is no
illegality in relying on it.
He further argued that the evidence of the eye
witnesses have not been shaken in spite of gruelling cross-
examination and the medical evidence also corroborate the
ocular testimony.
He further argued that the manner in which the
deceased persons were taken from the house on the false
JCRLA No.248 of 1998 Page 18 of 64
pretext of repayment of loan amount and the appellants were
prepared with the weapons beforehand forming an unlawful
assembly and on signal being given by A-2 Karunakar Sethy @
Nandu, the manner they combinedly assaulted the deceased
persons, clearly establishes the common intention and
committing the crime in prosecution of common object. He
argued that since it is a case of simultaneous assault by as many
as nine accused persons with different weapons, it is difficult on
the part of the eye witnesses to remember and attribute specific
and consistent role played by each of the appellants.
He argued that in view of the findings recorded by
the learned trial Court, the appellants have rightly been
convicted basing on the materials available on record and
therefore, no interference is called for with the impugned
judgment and order of conviction and as such the appeal should
be dismissed. He placed reliance in the case of Baban Shankar
Daphal and others -Vrs.- State of Maharashtra reported in
2025 SCC OnLine 137.
Whether the prosecution has proved the homicidal death
of both the deceased?:
11. Adverting to the contentions raised by the learned
counsel for the respective parties, let us first examine the
JCRLA No.248 of 1998 Page 19 of 64
evidence on record as to how far the prosecution has
successfully proved that the deceased persons met with
homicidal death.
P.W.9 who was working as Asst. Surgeon, District
Headquarters Hospital, Kendrapara conducted the post mortem
examination over the dead body of D-1 Shankarsan Sethi on
19.06.1996 on police requisition and she noticed the following
injuries:
"1. Lacerated wound of size 1"x ½" up to bone
deep present 4 inch above the right ankle joint;
2. Lacerated wound 2"x ½" x up to bone deep
present 1 and ½ inch below the right knee joint.
Right tibia and fibula were fractured into
multiple fragments at the sight of injury no.2;
3. Punctured wound ½ inch x ½ inch x 1 inch
present over the right thigh;
4. Both tibia and fibula were fractured at the
lower 1/3rd of the left leg;
Two punctured wounds of size ½ inch x ½
inch into bone deep present at the fracture
sight;
One punctured wound ½ inch x ½ inch into
bone deep and half inch over the left knee joint;
5. Contusion two and half inch wide present
encircling right wrist joint at the fracture site.
JCRLA No.248 of 1998 Page 20 of 64
On dissection, massive damage of the
muscles and other tissues at the fracture site
with profuse haemorrhage."
She opined the cause of death of D-1 Shankarsan
Sethi was shock due to massive haemorrhage. She proved the
post mortem report as Ext.6.
P.W.9 also conducted post mortem examination over
the dead body of D-2 Babuli Sethy on the same day in District
Headquarters Hospital, Kendrapara on police requisition and she
has noticed the following injuries:-
"1. Lacerated wound of size 2 inch x 1 inch x ½
inch present three and half inch below left knee
joint;
2. Contusion of 2½ inch wide encircling over
lower 1/3rd of the right leg, 3 inches over the
right ankle joint;
On dissection, both tibia and fibula were
found fractured; muscles and other tissues were
damaged;
3. Lacerated wound of 5" x 1" up to bone deep
present over the vertex.
Both parietal and frontal bone were
fractured into multiple fragments. Intra cranial
haemorrhage present. Brain was damaged."
She opined that the cause of death of D-2 Babuli
Sethy was shock due to haemorrhage on account of injuries on
JCRLA No.248 of 1998 Page 21 of 64
vital organ like brain. She proved the post mortem examination
report as Ext.7.
In the cross-examination, she has stated that if a
person is dragged on the rough surface of the road, multiple
abrasions would be possible. If a grinding stone is used to hit on
the chest, there might be a fracture or mark of injury will be
there. If two persons struggle on the road having chips and
stones with pointed edges, the injuries could be caused on both
the deceased.
Nothing has been brought out in the cross-
examination to demolish the evidence of P.W.9. In fact, learned
counsel for the appellants has not challenged the findings arrived
at by the doctor (P.W.9) in her post mortem reports (Ext.6 and
Ext.7) rather some of her statements made in the cross-
examination have been relied upon to challenge the evidence of
the eye witnesses.
Therefore, in view of the inquest reports, the
evidence of P.W.9, the post mortem report findings, we are of
the humble view that the prosecution has successfully proved
that the deceased persons met with homicidal death.
JCRLA No.248 of 1998 Page 22 of 64
Delayed dispatch of F.I.R. to Court:
12. Miss Adyashakti Priya, learned counsel for the
appellants contended that there has been delayed dispatch of the
first information report to Court and the prosecution has not
offered any explanation in that respect and therefore, it creates
doubt about the prosecution case as there was enough time on
the part of the police to manipulate the same. She placed
reliance in the case of Dilawar Singh (supra), wherein the
Hon‟ble Supreme Court has held as follows:-
"9. In criminal trial, one of the cardinal
principles for the Court is to look for plausible
explanation for the delay in lodging the report.
Delay sometimes affords opportunity to the
complainant to make deliberation upon the
complaint and to make embellishment or even
make fabrications. Delay defeats the chance of
the unsoiled and untarnished version of the case
to be presented before the Court at the earliest
instance. That is why if there is delay in either
coming before the police or before the Court, the
Courts always view the allegations with
suspicion and look for satisfactory explanation.
If no such satisfaction is formed, the delay is
treated as fatal to the prosecution case.
10. In Thulia Kali -Vs.- State of T.N.
reportedin A.I.R. 1973 S.C. 501, it was held
JCRLA No.248 of 1998 Page 23 of 64
that the delay in lodging the first information
report quite often results in embellishment as a
result of afterthought. On account of delay, the
report not only gets bereft of the advantage of
spontaneity, but also danger creeps in of the
introduction of coloured version, exaggerated
account or concocted story as a result of
deliberation and consultation."
Mr. Aurobinda Mohanty, learned counsel for the State
on the other hand argued that there is neither any delay in
lodging the F.I.R. nor any delayed dispatch of F.I.R. to Court.
In the case in hand, the informant (P.W.7) lodged
the first information report on 19.06.1996 at 11.00 a.m. Though
the occurrence took place on 19.06.1996 at about 7.30 a.m., but
as per his evidence, D-1, who was his son and D-2, who was the
brother-in-law (Sadu) of D-1 were taken first to Indupur P.H.C.
in injured condition where D-2 died and thereafter, the dead
body of D-2 so also the injured son of P.W.7 i.e. D-1 were taken
to Kendrapara Hospital and while D-1 was undergoing treatment,
P.W.7 came to Kendrapara police station and lodged the oral
report before P.W.10, the I.I.C. which was registered as F.I.R.
and after registration of the case, P.W.10 carried on
investigation, seized the incriminating articles, examined the
witnesses, searched for the accused persons, who were found
JCRLA No.248 of 1998 Page 24 of 64
absconding and came to know that the injured D-1, who was
admitted in the D.H.H., Kendrapara succumbed to the injury.
Accordingly, steps were taken for holding inquest over the dead
bodies and sending the dead bodies for post mortem
examination. He dispatched the F.I.R., which was lodged on
19.06.1996 at 11.00 a.m. to the Court on the next day i.e. on
20.06.1996 and the F.I.R. was also placed before the learned
S.D.J.M., Kendrapara on that day itself.
As per the practice, after the F.I.R. was dispatched
from the police station, it first comes to the Office of Court Sub-
Inspector (in short, „C.S.I. Office‟) where it is entered in the G.R.
Case register (i.e. Form No.(R) 2, as per G.R.C.O. (Criminal)
Vol.II) and mentioned serially with the date and G.R. Case
number is allotted to the said F.I.R. and then the C.S.I. places
the F.I.R. before the S.D.J.M. or concerned J.M.F.C., who after
perusing the same could put signature and the date on each
page of the F.I.R., on the first order sheet of the case record and
also in the G.R. Case register.
In the case in hand, the signature of the learned
S.D.J.M., Kendrapara appears in the F.I.R. (Ext.4) on each page
of the F.I.R. and the date has been put below the signature as
20.06.1996. No question has been put to the I.O. that he
JCRLA No.248 of 1998 Page 25 of 64
deliberately delayed the dispatch of the F.I.R. to Court to
manipulate it.
Therefore, the contention of the learned counsel for
the appellants that there has been delayed dispatch of the F.I.R.
for which there was scope on the part of the investigating agency
to fabricate the same is not acceptable.
Whether the F.I.R. becomes suspicious for not containing
the details of occurrence?:
13. The next contention raised by the learned counsel for
the appellants is that the first information report does not
indicate the details of the occurrence and therefore, there was
scope on the part of the prosecution to develop the case after
the registration of the case.
It need not be forgotten that the informant (P.W.7),
an eye witness to the occurrence came to lodge the F.I.R. after
seeing the assault on his son (D-1) and the sadu of his son (D-2)
and after D-2 died in the hospital and when his son D-1 was in a
critical condition undergoing treatment in Kendrapara District
Headquarters Hospital. At that stage, it was not expected of him
to remember and narrate all the details of the occurrence in the
first information report. The first information report is of two
sheets and it states how the deceased persons were assaulted by
JCRLA No.248 of 1998 Page 26 of 64
the accused persons and with what weapons. F.I.R. is not the
encyclopaedia or be all and end all of the prosecution case. It is
not a verbatim summary of the prosecution case. If some facts
are not mentioned in the F.I.R., whether the same would be fatal
or not would depend on the facts and circumstances of the case.
Therefore, the contention of the learned counsel for
the appellants on this score is not acceptable.
Eye witnesses are related to deceased and effect of non-
examination of independent witnesses:
14. The learned counsel for the appellants contended
that all the eye witnesses are related to the deceased persons
and therefore, there is likelihood of implicating the appellants
falsely. She further argued that the witnesses named in the
F.I.R. and independent witnesses present at the scene of
occurrence have been withheld by prosecution for which adverse
inference should be drawn. She placed reliance in the case of
Chhote Lal (supra), wherein the Hon‟ble Supreme Court has
held as follows:-
"13. It may not be out of context to mention
that the appellant/complainant, a sole eye
witness, happens to be the most interested
witness being the father of the deceased and
having long enmity with the group to which the
JCRLA No.248 of 1998 Page 27 of 64
accused persons belong, therefore, his
testimony was to be examined with great
caution......"
She further placed reliance in the case of Benguli
(supra), wherein this Court held as follows:-
"10......The non-examination of the independent
and disinterested persons and the examination
of interested ones would certainly cast a serious
reflection on the fairness of the trial."
The learned State Counsel on the other hand urged
that relationship of witnesses with the deceased is not a ground
to doubt his testimony rather such witnesses are not likely to
spare the real culprit and implicate an innocent falsely. He placed
reliance in the case of Baban Shankar Daphal (supra), wherein
the Hon‟ble Supreme Court has held as follows:-
"27. One of the contentions of the learned
counsel for the appellants is that the
eyewitnesses to the incident were all closely
related to the deceased and for prudence the
prosecution ought to have examined some other
independent eyewitness as well who were
present at the time of the unfortunate incident.
This was also the view taken by the Trial Court,
but the High Court has correctly rejected such
an approach and held that merely because there
were some more independent witnesses also,
JCRLA No.248 of 1998 Page 28 of 64
who had reached the place of incident, the
evidence of the relatives cannot be disbelieved.
The law nowhere states that the evidence of the
interested witness should be discarded
altogether. The law only warrants that their
evidence should be scrutinized with care and
caution. It has been held by this Court in the
catena of judgments that merely if a witness is a
relative, their testimony cannot be discarded on
that ground alone.
28. In criminal cases, the credibility of
witnesses, particularly those who are close
relatives of the victim, is often scrutinized.
However, being a relative does not automatically
render a witness "interested" or biased. The
term "interested" refers to witnesses who have a
personal stake in the outcome, such as a desire
for revenge or to falsely implicate the accused
due to enmity or personal gain. A "related"
witness, on the other hand, is someone who
may be naturally present at the scene of the
crime, and their testimony should not be
dismissed simply because of their relationship to
the victim. Courts must assess the reliability,
consistency, and coherence of their statements
rather than labelling them as untrustworthy.
29. The distinction between "interested" and
"related" witnesses has been clarified in Dalip
Singh v. State of Punjab : (1953) 2 SCC
JCRLA No.248 of 1998 Page 29 of 64
36, where this Court emphasized that a close
relative is usually the last person to falsely
implicate an innocent person. Therefore, in
evaluating the evidence of a related witness, the
court should focus on the consistency and
credibility of their testimony. This approach
ensures that the evidence is not discarded
merely due to familial ties, but is instead
assessed based on its inherent reliability and
consistency with other evidence in the case. This
position has been reiterated by this Court in:
i. Md. Rojali Ali -Vs.- The State of
Assam Ministry of Home Affairs
through Secretary : (2019) 19 SCC
567;
ii. Ganapathi -Vs.- State of T.N.:
(2018) 5 SCC 549;
iii. Jayabalan -Vs.- Union Territory of
Pondicherry. : (2010) 1 SCC 199;
30. Though the eyewitnesses who have been
examined in the present case were closely
related to the deceased, namely his wife,
daughter and son, their testimonies are
consistent with respect to the accused persons
being the assailants who inflicted wounds on the
deceased. As is revealed from the sequence of
events that transpired, one of the family
members was subjected to an assault. It was
thus quite natural for the other family members
JCRLA No.248 of 1998 Page 30 of 64
to rush on the spot to intervene. The presence
of the family members on the spot and thus
being eyewitness has been well established. In
such circumstances, merely because the
eyewitnesses are family members, their
testimonies cannot be discarded solely on that
ground."
It is no doubt true that P.W.2 Rasmita Sethy is the
widow of D-1 and D-2 was her brother-in-law, P.W.4 Arati Sethy
is the wife of Kapila Sethy, who is the son of informant (P.W.7),
P.W.5 is the daughter-in-law of the informant (P.W.7), but the
settled position of law as held in the case of State of U.P. -Vrs.-
Kishanpal and others reported in (2008) 16 Supreme
Court Cases 73 is that "related" is not equivalent to
"interested". The witness may be called "interested" only when
he or she has derived some benefit from the result of litigation.
Where it is shown that there is enmity and the witnesses are
near relatives too, the Court has a duty to scrutinise their
evidence with great care, caution and circumspection and be
very careful too in weighing such evidence. The testimony of
related witnesses, if after deep scrutiny, found to be credible
cannot be discarded. Relationship is not a factor to affect
credibility of a witness. It is more often than not that a relation
JCRLA No.248 of 1998 Page 31 of 64
would not conceal actual culprit and make allegations against an
innocent person.
Learned counsel for the appellants argued that the
evidence of the informant (P.W.7) indicates that about ten to
fifteen persons were present at the spot at the time of
occurrence and all of them belonged to his Sahi, but only the
related witnesses were examined as the eye witnesses to the
occurrence. We find that some independent witnesses like P.W.1
and P.W.6 have been examined by the prosecution, but they
have not supported the prosecution case for which they were
declared hostile by the prosecution. The related witnesses in this
case are natural witnesses as the occurrence took place on the
village road in the morning hours and close to their houses.
Moreover, it is the settled principle of law that it is quality of
evidence not quantity of evidence, which is material. Quantity of
evidence was never considered to be a test for deciding a
criminal trial and the emphasis of the Court is always on the
quality of evidence. Thus, when the legal system has laid
emphasis on value, weight and quality of evidence rather than
on quantity, multiplicity or plurality of witnesses and in view of
section 134 of the Evidence Act, which states that there is no
requirement under the law of evidence that any particular
JCRLA No.248 of 1998 Page 32 of 64
number of witnesses is to be examined to prove/disprove a fact,
the contention of the learned counsel for the appellants that
independent witnesses present at the scene of occurrence not
examined or F.I.R. named witnesses not examined, cannot be a
ground to disbelieve the evidence of the related eye witnesses.
Discrepancies in ocular evidence vis-a-vis medical
evidence:
15. Learned counsel for the appellants argued that there
are discrepancies in the evidence of the eye witnesses and
medical evidence contradicts the ocular testimonies of the four
eye witnesses. There are also contradictions in the evidence of
the eye witnesses with reference to their previous statements
made before the I.O. and, therefore, it would be too risky to
place reliance on such testimonies. She further argued that as
per the post mortem report, the doctor (P.W.9) has noticed
fewer injuries than alleged assault by number of accused persons
and there were no injuries from ropes or dragging. No fractures
or deep cuts matching bhujali, crowbar or grinding stone were
found and the doctor admits that the injuries could result from
scuffle on road. She further argued that since gross
inconsistencies between the number and nature of injuries as
alleged by eye witnesses and the actual injuries found by the
JCRLA No.248 of 1998 Page 33 of 64
medical officer (P.W.9) are noticed, this mismatch not only
discredits the prosecution case but also affirms that the
eyewitnesses are exaggerating or reconstructing events.
Learned counsel for the State on the other hand
argued that there are no major contradictions in the statements
of the witnesses nor the medical evidence completely rules out
all possibility of the ocular evidence and thus, the ocular
evidence can be safely acted upon. He placed reliance in the case
of Baban Shankar Daphal (supra), the Hon‟ble Supreme Court
held as follows:-
"32. It has been consistently laid down by this
court that once there is a version of eyewitness
and the same inspires confidence of the court, it
will be sufficient to prove the guilt of the
accused. A profitable reference can be made to
the decision of this Court in the case
of Pruthviraj Jayantibhai Vanol -Vs.- Dinesh
Dayabhai Vala: (2022) 18 SCC 683 wherein it
was laid down that:
"17. Ocular evidence is considered the
best evidence unless there are reasons
to doubt it. The evidence of PW-2 and
PW-10 is unimpeachable. It is only in a
case where there is a gross contradiction
between medical evidence and oral
JCRLA No.248 of 1998 Page 34 of 64
evidence, and the medical evidence
makes the ocular testimony improbable
and rules out all possibility of ocular
evidence being true, the ocular evidence
may be disbelieved."
(Emphasis supplied)
33. Hence, a conviction can be based upon the
version put forth by the eyewitness and the
medical evidence must be considered only for
the purpose of corroboration of the ocular
evidence.
xxx xxx xxx
41. The medical evidence confirmed the
presence of a fatal injury to the head caused by
a blunt object, which was sufficient to cause
death in the ordinary course of nature. The
absence of additional head injuries does not
negate the possibility of multiple blows being
inflicted; rather, it reflects the limitations of
forensic science in capturing the full extent of
injuries in certain cases. Thus, the medical
evidence did not contradict but, in fact,
supported the substance of the eyewitness
accounts, as has been observed by the High
Court as well."
It is a settled legal proposition that the ocular
evidence would have primacy unless it is established that oral
evidence is totally irreconcilable with the medical evidence. More
JCRLA No.248 of 1998 Page 35 of 64
so, the ocular testimony of a witness has a greater evidentiary
value vis-a-vis medical evidence and when medical evidence
makes the ocular testimony improbable, the same becomes a
relevant factor in the process of the evaluation of evidence.
Where the medical evidence goes so far that it completely rules
out all possibility of the ocular evidence, the ocular evidence may
be disbelieved.
Keeping in view the settled position of law, let us
assess the evidence of the four eye witnesses.
P.W.2 Rasmita Sethy:
P.W.2 Rasmita Sethy has stated that when her
deceased husband (D-1) and her brother-in-law (D-2) were
going on the road, A-1 Chandia @ Chandi Sethy being armed
with bhujali, A-3 Bulu Sethy being armed with a crowbar, A-6
Basanta Sethy being armed with tenta, A-4 Premananda Sethy,
A-5 Suratha Sethy along with the appellants Bhramar Sethy,
Dhruba Sethy and Kulamani Sethy, who are dead, being armed
with sticks and A-2 Karunakar Sethy @ Nandu being armed with
tenta surrounded the deceased persons on the public road and
brought them to the Danda of appellant Bhramar Sethy (dead)
and assaulted the deceased persons by giving fist blows, kicks
and slaps. Seeing such incident, P.W.2 cried. All the accused
JCRLA No.248 of 1998 Page 36 of 64
persons tied the deceased persons with a rope and assaulted
them by tenta, crowbar etc. as a result of which the deceased
persons sustained bleeding injuries. She stated that the accused
persons pulled the deceased persons by means of a rope in
which they had been tied. She specifically stated that A-1
Chandia dealt a blow on the head of deceased Babula by means
of a bhujali, A-6 Basanta Sethy dealt tenta blow on the leg and
hand of D-1 and A-2 Karunakar Sethy @ Nandu dealt tenta blow
on the leg and hand of D-1 and A-3 Bulu Sethy assaulted D-1 by
means of a SILAPUA on the chest and also assaulted D-1 by
means of a crowbar on the leg and hand. She specifically stated
that on account of fear of the accused persons, she along with
her family members did not go to the spot and that she along
with her family members were standing at a distance of 30
cubits away and saw the incident.
So far as motive on the part of the appellants for
commission of the crime and preparation is concerned, P.W.2
has stated that A-2 Karunakar Sethy @ Nandu had to give some
money to her husband (D-1) and over the money matter, there
was quarrel between her husband (D-1) and brother-in-law (D-
2) on the one side and A-2 Nandu on the other side which took
place at Tinimuhani which she came to know from her deceased
JCRLA No.248 of 1998 Page 37 of 64
husband. She specifically stated that on the date of occurrence,
while they were present in the house, A-2 Nandu Sethy came to
her house and called the deceased persons and told them to go
to Chandi temple of the village to take money and hearing this,
both the deceased proceeded towards the temple and A-2 Nandu
proceeded ahead.
In the cross-examination, P.W.2 has stated that she
could not say which accused assaulted on which part of the body
of the deceased persons by lathi. She further stated that the
appellants dragged the deceased persons to a distance of 30
cubits and due to dragging, the upper part of the body of the
deceased persons did not come in contact with the road. She
further stated that she had no knowledge regarding monetary
transaction between A-2 Karunakar Sethy @ Nandu and her
deceased husband and she could not give the details of incident
which she heard from her deceased husband about the
occurrence at Tinimuhani.
The doctor (P.W.9) has stated that if a person is
dragged on the rough surface of the road, multiple abrasions
would be possible.
The contention of the learned counsel for the
appellants is that since there were no such abrasions noticed on
JCRLA No.248 of 1998 Page 38 of 64
any of the deceased, therefore, the evidence of the eye witness
(P.W.2) that both the deceased were dragged on the road after
being tied in a rope is contradicted by medical evidence. She
placed reliance in the case of Lakshmi Singh (supra), wherein
the Hon‟ble Supreme Court held as follows:-
"15......Thus in short, so far as the deceased
Chulhai Singh is concerned, the ocular evidence
is totally inconsistent with the medical evidence
with respect to the assault by Chhathu Singh
and Ramprasad Sah. If this matter is false, there
is no guarantee that the other assault deposed
to by the eyewitnesses was also not false.
16. Similarly so far as deceased Brahmdeo is
concerned, the evidence of the witnesses shows
that he had received 4 to 5 lathi blows at the
hands of his assailants, but the medical evidence
of Dr. Jaiswal shows that he had one lacerated
wound on the scalp, a swelling and three
scratches. In view of the ocular evidence we
should have expected many more lathi injuries
on the person of the deceased Brahmdeo rather
than just one swelling and a few scratches, apart
from the lacerated wound. Thus this is also a
very important suspicious circumstance which
negatives the truth of the prosecution case.
xxx xxx xxx
JCRLA No.248 of 1998 Page 39 of 64
18. Thus, in view of the inherent improbabilities,
the serious omissions and infirmities, the
interested or inimical nature of the evidence and
other circumstances pointed out by us, we are
clearly of the opinion that the prosecution has
miserably failed to prove the case against the
appellants beyond reasonable doubt...."
We are not persuaded by the submission of the
learned counsel for the appellants. P.W.2 stated that the
appellants dragged the deceased persons to a distance of 30
cubits and due to dragging, the upper part of the body of the
deceased persons did not come in contact with the road and
therefore, absence of abrasions on the person of the deceased in
the factual scenario is not a ground to discard her evidence.
It is elicited in the cross-examination of the doctor
(P.W.9) that if two persons struggle on the road having chips
and stones with pointed edges, the injuries noticed on both the
deceased can be caused. Suggestions have been given to P.W.2
that there was hitch between the two deceased relating to
money matters and they fought with each other and fell on the
ground and sustained injuries and for that reason, they died, but
she has denied the same. Therefore, there are no such
JCRLA No.248 of 1998 Page 40 of 64
discrepancies to come to a finding that oral evidence of P.W.2 is
totally irreconcilable with the medical evidence.
Thus, the evidence of P.W.2 is acceptable and free
from doubt.
P.W.4 Arati Sethy:
P.W.4 Arati Sethy has stated that after A-2 Nandu
came to their house and called D-1 to go to Chandi temple for
settlement of the dispute, both the deceased (D-1 & D-2) left the
house and the appellants being armed with different weapons
assaulted the deceased persons. She further stated that A-1
Chandia dealt a blow by means of a bhujali on the head of D-2
and A-2 Karunakar and A-6 Basanta Sethy assaulted on the leg
of D-1 and A-3 Bulu Sethy assaulted D-1 by means of a crowbar
on the legs and hands. She further stated that while A-2
Karunakar, A-6 Basanta and A-3 Bulu Sethy were assaulting D-1
and D-2, other appellants also assaulted on the hands and legs
of both the deceased persons. She specifically stated that being
afraid of the act of the accused persons, though they saw the
entire incident, but she did not interfere being afraid of accused
persons.
In the cross-examination, she has stated that A-1
Chandi assaulted on the head of D-2 by means of a bhujali and
JCRLA No.248 of 1998 Page 41 of 64
A-2 Karunakar and A-6 Basanta were assaulting D-1 by means of
tenta and no outsider dare to interfere the incident and they
were standing near their house situated near the spot.
Though one contradiction has been proved in the
evidence of P.W.4 by confronting her previous statement to her
and proving the same through the I.O. that she had not stated
about both the deceased being dragged by the accused persons
by means of rope, but we are of the view that such contradiction
is minor in nature and cannot be a ground to discard her
evidence. Similarly, the medical evidence cannot said to be
completely negative the ocular testimony of P.W.4.
Learned counsel for the appellants contended that
none of the related witnesses came forward to the rescue of the
deceased persons and their conduct speaks volume with regard
to their alleged presence at the time of the incident. According to
the learned counsel for the appellants, the non-interference by
the family members to the overt act of the accused persons
creates doubt about their presence at the crime scene. Reliance
has been placed upon the case of Sucha Singh (supra), wherein
the Hon‟ble Supreme Court held as follows:-
"10.......Any father, worth the name, would not
remain a mute spectator when his son is being
JCRLA No.248 of 1998 Page 42 of 64
inflicted as many as twenty-four injuries under
his very nose."
We are not able to accept the contentions of the
learned Counsel for the appellants. The reaction of witnesses on
seeing a crime being committed in their presence varies from
person to person and no concrete rule can be evolved that every
witness must react to a specific occurrence in a particular way.
Only because a witness reacted in a different way or weird
manner and did not shout at the spot to draw the attention of
others and/or come forward to save the person being assaulted,
he cannot be declared as an unreliable witness nor can the Court
discard his evidence altogether solely basing upon that ground.
The Hon'ble Supreme Court has time and again unequivocally
held that post-occurrence behaviour of witnesses cannot be
predicted and uniformity in their reactions cannot also be
expected. In the case of Rammi -Vrs.- State of M.P. reported
in (1999) 8 Supreme Court Cases 649, the Hon'ble Supreme
Court held as follows:
"8. Such a remark on the conduct of a person
who witnessed the murderous attack is least
justified in the realm of appreciation of evidence.
This Court has said time and again that the
post-event conduct of a witness varies from
JCRLA No.248 of 1998 Page 43 of 64
person to person. It cannot be a cast-iron
reaction to be followed as a model by everyone
witnessing such event. Different persons would
react differently on seeing any violence and their
behaviour and conduct would, therefore, be
different. We have not noticed anything which
can be regarded as an abnormal conduct of P.W.
9 Ram Dulare."
In the case of Rana Partap and Ors. -Vrs.- State
of Haryana reported in (1983) 3 Supreme Court Cases
327, it is held as follows:-
"6. Yet another reason given by the learned
Sessions Judge to doubt the presence of the
witnesses was that their conduct in not going to
the rescue of the deceased when he was in the
clutches of the assailants was unnatural. We
must say that the comment is most unreal.
Every person who witnesses a murder reacts in
his own way. Some are stunned, become
speechless and stand rooted to the spot. Some
become hysteric and start wailing. Some start
shouting for help. Others run away to keep
themselves as far removed from the spot as
possible. Yet others rush to the rescue of the
victim, even going to the extent of counter-
attacking the assailants. Every one reacts in his
own special way. There is no set rule of natural
reaction. To discard the evidence of witnesses
JCRLA No.248 of 1998 Page 44 of 64
on the ground that he did not react in any
particular manner is to appreciate evidence in a
wholly unrealistic and unimaginative way."
When P.W.4 has specifically stated that being afraid
of the act of the accused persons, though they saw the entire
incident, but she did not interfere and even no outsider dare to
interfere the incident and they were standing near their house
situated near the spot, therefore, there is no improbability
feature in her evidence.
Thus, the evidence of P.W.4 is free from blemish and
is implicitly reliable.
P.W.5 Premalata Sethy:
P.W.5 Premalata Sethy, the sister-in-law of D-1 has
stated that when A-2 Karunakar Sethy @ Nandu came to the
house and called the deceased persons to go to Chandi temple
for settlement of a dispute and to take money, both the
deceased persons left the house and when they reached near the
spot, A-1 Chandi Sethy dealt a blow by means of a bhujali on the
head of D-2 as a result of which he fell down on the ground. She
further stated that A-6 Basanta Sethy assaulted D-1 by means of
a tenta on his leg and hand, A-2 Karunakar also assaulted D-1
by means of a tenta and A-3 Bulu Sethy assaulted the deceased
JCRLA No.248 of 1998 Page 45 of 64
D-1 by means of a crowbar on his legs and hands in front of the
house of appellant Bhramar Sethy (dead) and other appellants
were also present in the scene of the crime being armed with
tenta, badi (sticks). She stated that the place where the
deceased persons were assaulted was situated at a distance of
about 30 cubits away from her house and she saw the
occurrence standing in front of her house.
In the cross-examination, P.W.5 has stated that A-3
Bulu Sethy had not assaulted on the chest of D-1 by means of a
SILAPUA. She stated that no accused dragged any of the
deceased persons. She further stated that at the time of
occurrence, she had not concealed her presence in any bush.
Though suggestion was given to P.W.5 that she was inside the
house at the time of occurrence and she had not seen the
occurrence, but she has denied the same. She further stated that
she could not give description of each and every injury what she
saw on the person of deceased persons due to long lapse of
time. By confronting the previous statement recorded under
section 161 of Cr.P.C. to P.W.5, it has been proved through the
I.O. (P.W.10) that she had stated that both the deceased were
dragged putting on the ground.
JCRLA No.248 of 1998 Page 46 of 64
The discrepancy or variance in evidence as pointed
out by the learned counsel for the appellants, in our humble view
are minor in nature which will not make the prosecution case or
the evidence of P.W.5 doubtful.
In the case of Baban Shankar Daphal (supra), the
Hon‟ble Supreme Court held as follows:-
"35. The Trial Court gave undue weight to minor
discrepancies in the eyewitness accounts, such
as variations in their descriptions of the
sequence of events or the exact number of
blows inflicted. It is a well-established principle
of law that minor contradictions or
inconsistencies in testimony do not necessarily
render it unreliable, as long as the core facts
remain intact. The role of the court is to discern
the truth by considering the evidence in its
totality and not by isolating individual
inconsistencies to discredit an entire narrative.
The Trial Court erred by focusing excessively on
trivial discrepancies, thereby losing sight of the
broader picture and the compelling evidence
against the accused."
The normal course of the human conduct would be
that while narrating a particular incident, there may occur minor
discrepancies, such discrepancies in law may render credential to
JCRLA No.248 of 1998 Page 47 of 64
the depositions. There are always normal discrepancies,
however, honest and truthful a witness may be. Such
discrepancies are due to normal errors of observation, normal
errors of memory due to considerable gap between the date of
incident and the time of giving evidence in Court, due to mental
disposition such as shock and horror at the time of occurrence,
and the like. Material discrepancies are those which are not
normal, and not expected of a normal person. The minor
variations and contradictions in the evidence of eye witnesses
will not tilt the benefit of doubt in favour of the accused
persons.When the contradictions in the evidence of the
prosecution witnesses proved to be fatal to the prosecution case
and those contradictions go to the root of the matter, in such
cases the accused persons get benefit of doubt.
Thus we have no hesitation to accept the evidence of
P.W.5 Premalata Sethy as truthful.
P.W.7 Brahmananda Sethy:
P.W.7 Brahmananda Sethy, the informant has stated
that at the time of occurrence, he was sitting on his veranda and
both the deceased were inside the house at that time. At that
time, A-2 Nandu @ Karunakar called his son to take money from
him and asked him to come to the temple of the village and
JCRLA No.248 of 1998 Page 48 of 64
accordingly, both the deceased left the house and proceeded
towards village chhak. A-2 Nandu @ Karunakar shouted that D-
1 had come out of the house and asked others to come to the
spot. At that time, A-2 Nandu was armed with a tenta, A-1
Chandi was holding a bhujali, A-3 Bulu Sethy was holding a
crowbar, A-6 Basanta Sethy had a tenta and appellant Bhramar
(dead) was holding rope and others lathis. The appellants
surrounded and tied D-1 and D-2 and assaulted them and took
them to near their house by giving pushes. He further stated
that in front of the house of A-1 Chandia, A-1 Chandia gave a
blow by means of a bhujali on the head of D-2 and he fell down
with bleeding injury and A-3 Bulu Sethy gave blows to both of
his legs (knees and legs) by means of a crowbar and thereafter,
D-1 was taken to a distance of 10 cubits and there A-2 Nandu
and A-6 Basanta gave blows by means of tentas to his legs and
he fell down and A-3 Bulu gave two blows to his legs and knees
and other appellants assaulted D-1 by lathis and A-3 Bulu Sethy
gave blows on the chest by means of gridding stone (Silapua) on
the chest of D-1.
In the cross-examination, P.W.7 has stated that
there was long standing dispute between his family and the
family of the accused persons in respect of the pond. He further
JCRLA No.248 of 1998 Page 49 of 64
stated that D-2 was assaulted in front of the house of A-2 Nandu
@ Karunakar Sethy and D-1 was assaulted at a distance of 10
cubits from that place i.e. in front of the house of appellant
Bharamar Sethy (dead). He further stated that first the deceased
persons tied at the junction and thereafter, they were assaulted.
Suggestion has been given to P.W.7 by the learned defence
counsel that since both the deceased were fighting with each
other on the road, they sustained injuries and died, but he has
denied such suggestion.
No contradiction has been proved in his evidence
with reference to his previous statement before the I.O.
The doctor (P.W.9), who conducted post mortem
examination, as already stated above, noticed number of
lacerated wounds on different parts of the body, punctured
wounds, contusions and fractures on D-1 and similarly, lacerated
wounds, contusions, fractures of tibia and fibula etc. on D-2. In
the cross-examination, she has stated that the lacerated injuries
on both the deceased were possible by hard and blunt weapon
but may not be sharp cutting weapon.
According to the learned counsel for the appellants,
though P.W.7 has stated that A-3 Bulu Sethy gave blows on the
chest by means of gridding stone (Silapua) on the chest of D-1
JCRLA No.248 of 1998 Page 50 of 64
and even P.W.2 has also stated that A-3 Bulu Sethy assaulted
her deceased husband (D-1) by means of Silapua on his chest,
but the evidence of P.W.4 is completely silent in that respect and
P.W.5 on the other hand has made a positive statement that A-3
Bulu Sethy had not assaulted on the chest of D-1. She further
argued that the doctor (P.W.9) has stated that if a grinding stone
was used to hit the deceased on the chest, there might be a
fracture or mark of injury on the chest. Admittedly no fracture or
mark of injury on the chest of D-1 was noticed by the doctor
(P.W.9) and thus evidence of assault by A-3 Bulu Sethy on the
chest by means of gridding stone (Silapua) on the chest of D-1 is
a doubtful feature.
In view of the medical evidence adduced by P.W.9
and the discrepancies in the evidence of eye witnesses, even if
we held that the blows given by A-3 Bulu Sethy on the chest of
D-1 by means of gridding stone (Silapua) is not consistent, but
there is consistent evidence on record deposed to by all the four
eye witnesses that A-3 Bulu Sethy was holding a crowbar and
assaulted both the deceased on their legs with such weapon. The
doctor (P.W.9) has also noticed corresponding injuries on the
legs of both the deceased.
JCRLA No.248 of 1998 Page 51 of 64
Thus the evidence of P.W.7 Brahmananda Sethy is clear and
trustworthy.
After assessing the oral evidence of the four eye
witnesses i.e. P.Ws.2, 4, 5 and 7 vis-à-vis the medical evidence
adduced by P.W.9, we do not find any serious contradictions
between the two which may form the basis for discarding the
testimonies of the eye witnesses. Since the medical evidence
does not make the ocular testimony improbable or rules out all
possibility of the ocular testimony being true, the ocular evidence
cannot be disbelieved. There are neither any material
exaggerations nor contradictions which create doubt about the
substratum of the prosecution case.
Laches on the part of Investigating Officer (P.W.10):
16. Learned counsel for the appellants argued that when
P.W.7 lodged the F.I.R., D-1 Sankarsan Sethy was alive and
hospitalized, but the investigating agency did not take any steps
for recording his dying declaration. The Investigating Officer
(P.W.10), who was also the I.I.C. of Kendrapara police station
did not prepare a spot map or site plan of the alleged place of
occurrence showing the site of the alleged assault, the spot
JCRLA No.248 of 1998 Page 52 of 64
where the deceased were tied and dragged, the location of the
eye witnesses, the direction and movement of the parties,
bloodstains marks and rope traces. Therefore, the investigation
has not been conducted in a fair manner.
Law is well settled that laches on the part of the
Investigating Officer cannot be fatal to the prosecution case
where ocular testimony is found credible and cogent. If mere
laches on the part of Investigating Officer be a ground for
acquitting the accused, then every criminal case will depend
upon the will and design of the Investigating Officer. The
Investigating agency is expected to be fair and efficient but any
lapse on its part cannot per se be a ground to throw out the
prosecution case when there is overwhelming evidence to prove
the offence. Investigation is not the solitary area for judicial
scrutiny in a criminal trial. There is legal obligation on the part of
the Court to examine the prosecution evidence de hors the
lapses carefully to find out whether the said evidence is reliable
or not and whether such lapses affected the object of finding out
the truth. The Courts have to independently deal with the case
and should arrive at a just conclusion beyond reasonable doubt
basing on the evidence on record.
JCRLA No.248 of 1998 Page 53 of 64
Therefore, some laches on the part of the I.O.
(P.W.10) cannot be a ground to disbelieve the prosecution case
which has been proved through the evidence of eye witnesses
and medical evidence.
F.S.L. report (Ext.12) marked through I.O.:
17. According to the learned counsel for the appellants,
F.S.L. report (Ext.12) ought to have been proved by summoning
the expert who prepared it, but the I.O. (P.W.10) marked it as
an exhibit and therefore, the finding recorded therein should not
be usedagainst the appellants.
Learned counsel for the State on the other hand
argued that Ext.12 has been marked through the I.O. (P.W.10)
without objection from defence and no application has been filed
by the defence for summoning the expert. Therefore, the learned
trial Court has committed no illegality in relying on it.
In the case of Dhanajaya Reddy -Vs.- State of
Karnataka reported in (2001) 4 Supreme Court Cases 9,
the Hon‟ble Supreme Court has held as follows:-
"39......Learned counsel appearing for the
appellants made vain attempt to impress upon
us that the serologist‟s report was not produced
at the trial Court, which we do not accept in
view of the fact that the said report is shown to
JCRLA No.248 of 1998 Page 54 of 64
have been admitted in evidence and marked
Exhibit P-87. Otherwise also the report of the
serologist can be used as evidence without any
formal proof under Section 293 of the Cr.P.C."
In the case of State of Himachal Pradesh -Vs.-
Mast Ram reported in (2004) 8 Supreme Court Cases 660,
the Hon‟ble Supreme Court has held as follows:-
"6. Secondly, the ground on which the High
Court has thrown out the prosecution story is
the report of ballistic expert. The report of
ballistic expert (Ex.P-X) was signed by one
Junior Scientific Officer. According to the High
Court, a Junior Scientific Officer (Ballistic) is not
the officer enumerated under sub-section (4) of
Section 293 of the Code of Criminal Procedure
and, therefore, in the absence of his
examination, such report cannot be read in
evidence. This reason of the High Court, in our
view, is also fallacious. Firstly, the Forensic
Science Laboratory Report (Ex.P-X) has been
submitted under the signatures of a Junior
Scientific Officer (Ballistic) of the Central
Forensic Science Laboratory, Chandigarh. There
is no dispute that the report was submitted
under the hand of a Government Scientific
Expert. Section 293(1) of the Code of Criminal
Procedure enjoins that any document purporting
to be a report under the hand of a Government
JCRLA No.248 of 1998 Page 55 of 64
Scientific Expert under the section, upon any
matter or thing duly submitted to him for
examination or analysis and report in the course
of any proceeding under the Code, may be used
as evidence in any inquiry, trial or other
proceeding under the Code. The High Court has
completely overlooked the provision of sub-
section (1) of Section 293 and arrived at a
fallacious conclusion that a Junior Scientific
Officer is not an officer enumerated under sub-
section (4) of Section 293. What sub-section (4)
of Section 293 envisages is that the Court to
accept the documents issued by any of six
officers enumerated therein as valid evidence
without examining the author of the
documents."
Referring to the judgments reported in A.I.R. 1963
Supreme Court 1531 : Ukha Kolhe -Vs.- The State of
Maharashtra; A.I.R. 1988 Supreme Court 1011 :
Bhupinder Singh -Vs.- State of Punjab, the Hon'ble Supreme
Court observed in the case of Rajesh Kumar and Another
-Vs.- State Government of NCT of Delhi, reported in
(2008) 4 Supreme Court Cases 493 that as per provisions
contained in sub-sections (1) and (2) of section 293 of Cr.P.C., it
is not obligatory that an expert, who furnishes opinion on the
JCRLA No.248 of 1998 Page 56 of 64
scientific issue of the chemical examination of substance should
be of necessity made to depose in proceedings before the Court.
In the case in hand, the C.E. Report (Ext.12) has
been marked on admission during the recording of evidence of
I.O. (P.W.10). Such a document can also be marked on
admission in view of section 293 of Cr.P.C. and used as evidence
in the trial. In the case in hand, the defence has not even filed
any application to summon the expert to prove the same nor
objected to the marking of Ext.12 through I.O.
Therefore, we are not inclined to accept the
contentions raised by the learned counsel for the appellants that
Ext.12 cannot be used against the appellants. In fact, the
learned trial Court has not considered Ext.12 in its judgment, but
mainly relying upon the evidence of the eye witnesses and the
doctor‟s evidence, found the appellants guilty. Even if for the
sake of argument, Ext.12 is left out of consideration, we are still
of the humble view that the prosecution has successfully proved
its case through the unimpeachable evidence of the eye
witnesses and the medical evidence.
JCRLA No.248 of 1998 Page 57 of 64
Whether prosecution has proved prior meeting of minds
or sharing of unlawful object:
18. Learned counsel for the appellants argued that there
is no evidence of prior meeting of minds or sharing of common
intention or the appellants being the members of unlawful
assembly, committing the crime of double murder in prosecution
of the common object. She placed reliance in the case of
Krishna Govind Patil (supra), wherein the Hon‟ble Supreme
Court held as follows:-
".........common intention, as contemplated under
section 34 of the Indian Penal Code, cannot be
inferred from vague and inconsistent evidence.
There must be clear and definite evidence
demonstrating a collaborative nature of the
offense to establish constructive liability. If the
prosecution fails to prove the collective intent of
the accused, it would be unsafe to convict them
under section 34 I.P.C."
In the case of Sunil (supra), the Hon‟ble
Supreme Court held as follows:-
"29. What is clear from the decisions noticed
above is, that to fasten liability with the aid of
Section 34 of the Indian Penal Code what must
necessarily be proved is a common intention to
commit the crime actually committed and each
JCRLA No.248 of 1998 Page 58 of 64
Accused person can be convicted of that crime,
only if it is in furtherance of common intention of
all. Common intention pre-supposes a prior
concert, though pre-concert in the sense of a
distinct previous plan is not necessary as
common intention to bring about a particular
result may develop on the spot. The question
whether there was any common intention or not
depends upon the inference to be drawn from
the proven facts and circumstances of each
case. The totality of the circumstances must be
taken into consideration in arriving at the
conclusion whether the Accused had a common
intention to commit an offence with which they
could be convicted."
Learned counsel for the State on the other hand
argued that there is evidence on record that on the false pretext
of repayment of loan dues, D-1 was called from his house by A-2
Karunakar Sethy @ Nandu and when both the deceased came
out of the house and proceeded on the village road towards
Chandi temple of the village, A-2 passed signal to the other
appellants who were prepared beforehand with deadly weapons
and they came out and started assaulting the deceased persons
causing number of wounds on different parts of body of D-1 and
D-2 and therefore, the learned trial Court rightly applied sharing
JCRLA No.248 of 1998 Page 59 of 64
of common intention and committing the crime in prosecution of
common object of the unlawful assembly.
Law is well settled that the existence of common
intention can be inferred from the attending circumstances of the
case and the conduct of the parties. No direct evidence of
common intention is necessary. For the purpose of common
intention, even the participation in the commission of the offence
need not be proved in all cases. The common intention can
develop even during the course of an occurrence. To apply
section 34 of I.P.C., apart from the fact that there should be two
or more accused, two factors must be established i.e. (i)
common intention and (ii) participation of the accused in the
commission of an offence. If a common intention is proved, but
no overt act is attributed to the individual accused, section 34 of
I.P.C. will be attracted as essentially it involves vicarious liability
but if participation of the accused in the crime is proved and a
common intention is absent, section 34 cannot be invoked. In
every case, it is not possible to have direct evidence of a
common intention. It has to be inferred from the facts and
circumstances of each case. (Ref: Surendra Chauhan -Vs.-
State of M.P. : (2000) 4 Supreme Court Cases 110).
JCRLA No.248 of 1998 Page 60 of 64
When an assembly of five or more persons is
designated an 'unlawful assembly' is defined in section 141 of
I.P.C. Who can be said to be a member of an unlawful assembly
is defined in section 142 of I.P.C. „Common object‟ would mean
the purpose or design shared by all the members of such
assembly. It may be formed at any stage. Whether in a given
case, the accused persons shared common object or not, must
be ascertained from the acts and conduct of the accused
persons. The surrounding circumstances are also relevant and
may be taken into consideration in arriving at a conclusion in this
behalf. It is in two parts. The first part would be attracted when
the offence is committed in furtherance of the common object.
The offence, even if is not committed in direct prosecution of the
common object of the assembly, Section 149 of I.P.C. may still
be attracted. However, if an offence is committed in furtherance
of such common object, the same would come within the
purview of second part.
Whether the members of the unlawful assembly
really had the common object to cause the murder of the
deceased has to be decided in the facts and circumstances of
each case, nature of weapons used by such members, the
manner and sequence of attack made by those members on the
JCRLA No.248 of 1998 Page 61 of 64
deceased and the circumstances under which the occurrence
took place. It is an inference to be deduced from the facts and
circumstances of each case. (Ref: Lalji and Ors. -Vs.- State of
U.P : (1989) 1 Supreme Court Cases 437; Ranbir Yadav
-Vs.- State of Bihar : (1995) 4 Supreme Court Cases 392;
Rachamreddi Chenna Reddy and Ors. -Vs.- State of A.P :
(1999) 3 Supreme Court Cases 97).
The evidence of the eye witnesses clearly indicate as
to how on the false pretext of repayment of loan dues, D-1 was
called from his house by A-2 Karunakar Sethy @ Nandu and
when both the deceased (D-1 and D-2) came out of the house
and proceeded on the village road towards Chandi temple of the
village, A-2 gave indication to the other appellants who came out
with deadly weapons and assaulted the deceased persons on
different parts of their causing number of wounds which
ultimately resulted in their death and therefore, we are inclined
to accept the contention raised by the learned State Counsel that
the learned trial Court rightly applied sharing of common
intention and committing the crime in prosecution of common
object of the unlawful assembly.
JCRLA No.248 of 1998 Page 62 of 64
Conclusion:
19. In view of the foregoing discussions, we find that the
evidence of the eye witnesses P.Ws.2, 4, 5 and 7 are clear and
consistent and trustworthy and the medical evidence also
corroborates such ocular testimonies and thus, we are of the
humble view that the learned trial Court has rightly found the
appellants guilty.
Accordingly, the conviction of A-1 Chandia @ Chandi
Sethy, A-2 Karunakar Sethy @ Nandu, A-3 Bulu Sethy and A-6
Basanta Sethy under section 302/34 of the I.P.C. and A-4
Premananda Sethy and A-5 Suratha Sethy under section
302/149 of the I.P.C. and the sentence passed thereunder
stands confirmed. A-1 Chandia @ Chandi Sethy, A-2 Karunakar
Sethy @ Nandu, A-3 Bulu Sethy, A-4 Premananda Sethy, A-5
Suratha Sethy and A-6 Basanta Sethy were directed to be
released on bail vide order dated 18.03.2010 in Misc. Case No.6
of 2010. Their bail bonds and surety bonds stand cancelled. They
shall surrender before the learned trial Court within fifteen days
from today to serve out the sentence awarded by the learned
trial Court which is confirmed by us, failing which, the learned
trial Court shall take appropriate steps for their arrest and send
them to judicial custody.
JCRLA No.248 of 1998 Page 63 of 64
In the result, the Criminal Appeal stands dismissed.
The trial Court records with a copy of this judgment
be sent down to the Court concerned forthwith for information
and compliance.
Before parting with the case, we would like to put on
record our appreciation to Miss Adyashakti Priya, the learned
counsel for the appellants for rendering her valuable help and
assistance towards arriving at the decision above mentioned.
This Court also appreciates the valuable help and assistance
provided by Mr. Aurovinda Mohanty, learned Additional Standing
Counsel.
................................
S.K. Sahoo, J.
Chittaranjan Dash, J. I agree.
…………………………….
Chittaranjan Dash, J.
Orissa High Court, Cuttack
The 11th August 2025/Pravakar/RKMishra
Signature Not Verified
Digitally Signed
Signed by: RABINDRA KUMAR MISHRA
Designation: Personal Assistant
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Aug-2025 14:54:46
JCRLA No.248 of 1998 Page 64 of 64
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