Orissa High Court
Naba Kishore Mallick And vs State Of Odisha on 16 July, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.376 of 2007
In the matter of an application under Section 374(2) of the
Cr.P.C.
..................
Naba Kishore Mallick and Appellants
Others ....
-versus-
State of Odisha .... Respondent
For Appellants : Ms. Ayushi Mehta on behalf
of Mr. D. Panda, Advocate
For Respondents : Mr. S.K.Jee, Addl. Govt. Adv.
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:09.05.2025 and Date of Judgment:16.07.2025
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Biraja Prasanna Satapathy, J.
1. The present appeal has been filed by the appellants
challenging judgment dt.26.07.2007 so passed by the
learned Addl. Sessions Judge, Jagatsinghpur in S.T. Case
// 2 //
No.119 of 2006. Vide the said judgment, the appellants
have been convicted and sentenced to undergo R.I for one
(1) year for the offence under Section 147 of I.P.C, R.I
for six (6) months for the offence under Section 323/149
of I.P.C and five (5) years for the offence under Sections
325/149 of I.P.C. The appellants were also sentenced to
pay a fine of Rs.1,000/-, in default R.I for six (6) months
more for the offence under Sections 325/149 of I.P.C. All
the offences are to run concurrently.
2. While assailing the judgment, learned counsel
appearing for the appellants contended that basing on
the F.I.R lodged in Naugaon P.S. Case No.51 of 2004
corresponding to G.R. Case No.554 of 2004 in the file of
learned S.D.J.M., Jagatsinghpur, the prosecution case
was set into motion for the offences under Sections
147/148/323/324/325/307/149 of the I.P.C. The
appellants however stood charged for the offences under
Sections 147/148/323/324/325/307/149 of I.P.C and
faced the trial in the Court of learned Addl. Sessions
Judge, Jagatsinghpur in S.T. Case No.119 of 2006.
Page 2 of 24
// 3 //
2.1. It is contended that the prosecution in order to
prove its case examined 8 nos. of P.Ws and the defence
examined 3 witnesses on its behalf. While P.Ws.1 and 2
were the witnesses to the occurrence, P.W.3 was the
injured himself. P.W.4 is the informant, being the father
of the injured. P.W.5 is the B.D.O, Naugaon block posted
at the relevant time. P.Ws. 6 & 7 are the doctors who
examined the injured and P.W.8 is the I.O.
2.2. It is contended that the prosecution case set to
motion basing on the FIR lodged by the informant-P.W.4
on 04.8.2004 before Naugaon Police Station to the effect
that on the morning while his son Susanta(P.W.3) was
returning from Jogipada, accused persons being armed
with Bhujali, Tenta, Thenga and Crowbar, surrounded
him and in order to take his life, brutally assaulted him
causing injuries on his legs and hands. It is contended
that while being so assaulted, P.Ws.1 & 2 rescued the
injured and all of them took the injured to the hospital.
2.3. While assailing the order of conviction and
sentence vide the impugned judgment, learned counsel
Page 3 of 24
// 4 //
appearing for the appellants vehemently contended that
though the occurrence took place on 04.08.2004, but the
F.I.R was lodged on 06.08.2004 and such delay in lodging
the F.I.R was never explained. It is also contended that
P.Ws.1 & 2 though are eye-witnesses to the occurrence,
but since they are related to the injured, they were
required to be treated as related witnesses and their
testimony has to be properly appreciated. It is also
contended that in order to prove the allegation, no
independent witnesses were examined by the prosecution
and thereby it creates serious doubt with regard to the
alleged occurrence and the alleged assault made by the
accused appellants.
2.4. A further submission was also made that even
though basing on the statements of the P.Ws, the order of
conviction and sentence was passed by the learned trial
Court, but such statements of the P.Ws are not reliable
because of the discrepancies which are apparent. It is
also contended that even though in the F.I.R, it is alleged
that the injured was taken to the hospital by one Bharat
Page 4 of 24
// 5 //
Bhoi, but he was not examined as an witness. It is also
contended that the F.I.R dt.04.08.2004 is not the F.I.R
duly written by the informant and the said F.I.R was
drafted by some other person.
2.5. With regard to the discrepancies in the statement
of the P.Ws, learned counsel appearing for the appellants
relied on the statement of P.W.1 in his cross-examination
in para-5. P.W.1 in his cross-examination in para-5
stated as follows:
5. There were several injuries on the all over the
body of Susant and since I was trying to rescue him, I
not counted the number of injuries. All the accused
persons surrounded and assaulted him. So, I cannot
say the number of blows by the accused and to which
portion of the body. The crowbar was of 2 and half fit
length. So also the iron rod. The surface of crow bar
was plain.
2.6. Similarly, reliance was also placed to the statement
of P.W.2 in para 2 of his cross-examination. The statement
of P.W.2 in para-2 of his cross-examination reads as
follows:
2. Informant Sankar,myself and Susanta belong to
one family . I cannot say If charchil losted in last
election for the post of Ward Member. My self and
charchil had gone to search for labours and we were
returning. Village Kani pada 100 cubits from the spot
so also Benapadawithin100 to 200 cubits. The
Page 5 of 24
// 6 //houses of Dharmananda, Bholanath Das and Manu
Bhoi were at a distance of 100 cubits from the
culvert. We have got good relationship with accused
.Siba and other accused a apprehending assault on
us we did not date to go to Susant the presence of
accused persons. We did not also raised our voice we
were observing the scene silently. I cannot say if
Bholi Das. Narayan Barik have their cycle shop and
sallon at the spot.
It is not the fact that my self Susanta and p.w.1
belong to communist party at time I accompany Babuli
Das, BJD leader. I cannot say the name of the
Motorcyclist who kept our request out of several vehicle
bringing Susanta to Naugaon hospital. It is not a fact
that In stated to police thatwe saw Susanta near the
Oranda culvert chhak. and I brought susanta in Motor
cycle and p.w.1 followed us by a cycle and during
that time father of Susanta arrived near the spot and
the Doctor Nuagaon advised us to take to Cuttack and
I accompanied Susanta Cuttack where he treated for
25days. It is not a fact that I had stated to Police that
accused Naba assaulted to the left leg of Susanta by a
crowbar and Susanta was unconscious when we
brought him to the hospital and accused Debraj
assaulted with Krushna on the body of Susanta by
means of rod.
2.7. It is accordingly contended that because of the
discrepancies in the medical and ocular evidence and
there being no seizure of the alleged weapons used in the
assault, the order of conviction and sentence could not
have been passed for the offence under Sections
147/323/325/149 of the Indian Penal Code.
2.8. A further submission was also made that since
allegation of offence under Section 307 of the I.P.C was
Page 6 of 24
// 7 //
not proved and the appellants were acquitted for the said
offence, no order of conviction could have been passed
under Sections 325 of the Indian Penal Code.
2.9. With regard to delay in lodging the F.I.R, reliance
was placed to a decision of the Hon’ble Apex Court
rendered in the case of Radhakrishnan Nair and Others
Vs. State of Kerala and batch, 1995 Supp(1) SCC 217.
It is also contended that since the F.I.R allegedly lodged on
04.08.2004 was sent to the concerned Court on
06.08.2024, it violates the provisions of Section 157 of the
Cr.P.C. In terms of the provisions contained under
Section 157 of the Cr.P.C, F.I.R was required to be sent to
the Magistrate forthwith. Since in the instant case, the
same was sent after two (2) days of the lodging of the
F.I.R, the prosecution story is not believable and it should
have been discarded outrightly. In support of his
submission, reliance was placed to a decision of the
Hon’ble Apex Court rendered in the case of Arjun Marik
Vs. State of Bihar, 1994 Supp. (2) SCC 372. Hon’ble
Apex Court in para-24 of the said decision held as follows:
Page 7 of 24
// 8 //
24. The matter does not stop here. There is yet another
serious infirmity which further deepens the suspicion
and casts cloud on the credibility of the entire
prosecution story and which has also been lost sight of
by the trial court as well as the High Court and it is
with regard to the sending of occurrence report (FIR) to
the Magistrate concerned on 22-7-1985 i.e. on the 3rd
day of the occurrence. Section 157 of the Code of
Criminal Procedure mandates that if, from information
received or otherwise, an officer in charge of police
station has reason to suspect the commission of an
offence which he is empowered under Section 156 to
investigate, he shall forthwith send a report of the
same to the Magistrate empowered to take cognizance
of such offence upon a police report. Section 157, CrPC
thus in other words directs the sending of the report
forthwith i.e. without any delay and immediately.
Further, Section 159 CrPC envisages that on receiving
such report, the Magistrate may direct an investigation
or, if he thinks fit, to proceed at once or depute any
other Magistrate subordinate to him to proceed to hold
a preliminary inquiry into the case in the manner
provided in the Code of Criminal Procedure. The
forwarding of the occurrence report is indispensable
and absolute and it has to be forwarded with earliest
despatch which intention is implicit with the use of the
word “forthwith” occurring in Section 157, which
means promptly and without any undue delay. The
purpose and object is so obvious which is spelt out
from the combined reading of Sections 157 and 159
CrPC. It has the dual purpose, firstly to avoid the
possibility of improvement in the prosecution story and
introduction of any distorted version by deliberations
and consultation and secondly to enable the
Magistrate concerned to have a watch on the progress
of the investigation.
2.10. It is also contended that since only related
witnesses of the injured were examined in support of the
prosecution allegation and the same having not been
corroborated through the evidence of independent
witnesses, the same is not trustworthy and relying on the
Page 8 of 24
// 9 //
same, no order of conviction and sentence could have
been passed.
2.11. In support of the aforesaid submission, reliance
was placed to a decision of the Hon’ble Apex Court
rendered in the case of Krishnegowda and Others
v. State of Karnataka, 2017 (13) SCC 98. Hon’ble
Apex Court in para 32 & 33 of the said decision held as
follows:
32. It is to be noted that all the eyewitnesses were
relatives and the prosecution failed to adduce reliable
evidence of independent witnesses for the incident
which took place on a public road in the broad
daylight. Although there is no absolute rule that the
evidence of related witnesses has to be corroborated
by the evidence of independent witnesses, it would be
trite in law to have independent witnesses when the
evidence of related eyewitnesses is found to be
incredible and not trustworthy. The minor variations
and contradictions in the evidence of the eyewitnesses
will not tilt the benefit of doubt in favour of the accused
but when the contradictions in the evidence of the
prosecution witnesses proves to be fatal to the
prosecution case then those contradictions go to the
root of the matter and in such cases the accused gets
the benefit of doubt.
33. It is the duty of the Court to consider the
trustworthiness of evidence on record. As said by
Bentham, “witnesses are the eyes and ears of justice”.
In the facts on hand, we feel that the evidence of these
witnesses is filled with discrepancies, contradictions
and improbable versions which draws us to the
irresistible conclusion that the evidence of these
witnesses cannot be a basis to convict the accused.
Page 9 of 24
// 10 //
2.12. Similarly because of the contradictions and
inconsistencies in the evidence of P.Ws, the evidence of
such witnesses are not to be relied on. In support of the
same, reliance was also placed to the self-same decision
of the Apex Court rendered in the case of
Krishnegowda and Others v. State of
Karnataka, 2017 (13) SCC 98. Hon’ble Apex Court in
para-27 of the said decision held as follows:
27. Generally in the criminal cases, discrepancies in
the evidence of witness is bound to happen because
there would be considerable gap between the date of
incident and the time of deposing evidence before the
court, but if these contradictions create such serious
doubt in the mind of the court about the truthfulness of
the witnesses and it appears to the court that there is
clear improvement, then it is not safe to rely on such
evidence.
2.13. Making all these submissions and relying on
the decisions as cited (supra), learned counsel appearing
for the appellants contended that the impugned order of
conviction and sentence passed vide the impugned
judgment is not at all sustainable in the eye of law and
requires interference of this Court.
Page 10 of 24
// 11 //
3. Mr. S.K. Jee, learned Addl. Govt. Advocate on the
other hand while supporting the impugned judgment,
contended that the F.I.R allegation having been duly
proved by the prosecution witnesses, nothing more was
required to be proved in support of the allegations. It is
contended that P.Ws.1 & 2 though alleged to be related
witnesses, but they being eye-witnesses to the
occurrence, there was nothing to disbelieve their
evidence. It is also contended that in their cross-
examination, nothing has been elicited by the defence
that the appellants are not involved in the alleged crime.
Statement of P.W.1 in Paragraph-1 of his examination-in-
chief and Paragraph-3 & 4 of his cross-examination
reads as follows:
1. I know the informant Sankar and injured and the
accused persons present. Occurrence took place on
4.08.2004 at about 9 a.m. at the end of Oranda village
road saw the accused persons were chasing being
armed with the crowbar, rod , farsa to Susanta who
was going with a cycle then at a lonely place all the
accused persons surrounded and bounced upon him I
saw this incident with Mahendra, at a distance of 10 to
15 cubits and being threatened by them we could not
dare to go there. Then Susanta fell down accused Siba
Mallick dealt a farsa blow claiming to his head during
which susanta raised his left hand as a result of which
has left palm was cut by that farsa blow. Then other
accused persons dealt susanta by means of crowbar
Page 11 of 24
// 12 //
and rod causing injuries on his neck and hands, back.
Susanta became senseless and the accused persons
held that he died for which they left the spot and fled
away from the spot. During that time Susanta on the
Nala by the roadside to whom we rescued and took him
to Naugaon Medical. Thereafter father of Susanta
arrived. We brought Susanta by a Motorcycole and
Mahendra accompanied him and I followed them by my
cycle. We requested the Motor cyclist who was passing
by the road. The father of Susanta lodged the report.
Susanta was medically examined and he was referred
to SCB Medical College in serious condition while he
was there for 25 days.
Cross-examination by defence
3. I was examined by the police on that day at about
12 noon. It is a fact that I stated to police that accused
Siba dealt the bhujali blow aiming to the head of
Susanta who raised his hand and according to me
there is no difference between Bhujali and Farsa. The
Farsa was to be one and half cubits in length. The
wooden handle was within one cubits.
4. It is not a fac that I had not stated to police that we
are at a distance of 10 cubits from the spot and the
accused persons threatened us and by the assault
Susanta sustained bleeding injury o his legs, hand
and back and after the incident father of Susanta
arrived. and Mahendra was brought by the motor-
cycle by Mahendra and I followed them by cycle and
Susanta was referred to Cuttack Medical where he
was treated for 25 days.
3.1. Similarly, P.W.2 in his examination in chief and in
para-3 of his cross-examination deposed as follows:
I know the informant, injured and the accused present.
On 4.8.2004, at about 9 a.m. while I was returning with
Charchil, P.W.1 I Susanta was going on ahead us Orand
found Murali near the culvert of Ordana and the
accused persons were chasing Susanta who was going
by cycle the accused persons caught hold of his cycle by
which Susant fell down. At that time accused Siba
stated to Murder him and dealt a farsa blow, SusantaPage 12 of 24
// 13 //raised his left hand and the farsa on his palm, causing
cut injury the accused. Naba Mallick dealt crowbar
blow on the waist of Susanta cauysing injury on his left
leg. Then accused Tiki Bishnu also assaulted Susanta
by means of crow-bar to his shoulder, causing fracture
injury. Babuli and Krushna, (Debraj, assaulted
susanta by means of iron rod causing injuries on his
legs and back and other parts of the body. Then threw
the Susant by the road side was water and left the spot
taking him to be dead. Then I along with Charchil
rushed there brought Susanta from the water who lost
his sense. Then on the request we brought Susanta by
Motorcyclist to Naugaon Hospital. I accompanied
Susanta by a motorcycle and charchil followed us by
cycle. Then father of susanta arrived near the spot.
Then the Doctor at Naugaon advise to take Susanta to
Cuttack. I took medical with Charchil and his father at
the later come. Susanta treated there about 25 days at
Cuttack medical.
Cross-Examination
3. Siba dealt a farsa blow having a force and from the
considerable distance and he was in his front. The
farsa was of six inches long iron portion and the was
one cubit length having two leafs there was one blow.
The incident took place for 10 minutes and Siba was
near Susanta out of fear I was trembling. The crowbar
was one and half cubit length so also the iron rod. All
the injuries were bleeding injures and I noticed 10/15
injuries and father of Susanta also accompanied us to
the hospital and till our departure to Cuttack father of
Susanta was with us and we left Naugaon hospital in
between 11 to 12 noon and from the spot till our
departure to Cyuttack the father of Susanta with us at
Naugaon. On the next day, I returned from Cuttack. I
was examined by police at Naugaon medical on the day
of occurrence within 11 a.m. It is not a fact that I had
not stated to I.O that by the crow-bar blow of Bishnu
Susanta sustained bleeding injury on his shoulder. I do
not remember the time of admission, at Cuttack. But
arrived at outdoor at 2 P.M. The surface of the crow bar
is plain having one inch dia. So also the road having ¾
inch. The doctor of Naugaon referred to Cuttack. It is
not a fact that getting information myself and Charchil
arrived at the spot and before us Bharat Bhoi, Bholi Das
and Naran Bark at the pot. I is not a fact that I am
Page 13 of 24
// 14 //
deposing falsehood since I belong to the group of
Susanta and there was no such occurrence.
3.2. Learned Addl. Govt Advocate further contended
that P.Ws.6 & 7 who happens to be the doctors and
examined the injured P.W.3, found various injuries both
grievous and simple. Statement of P.W.6 & 7 reads as
follows:
Statement of P.W.6
On 6.8.2004 I was M.O.1/C. Naugaon PHC. On
that day on police requisition, I examined Susanta
Kr..Mallik s/o.Sunakr Mallick of Benapada, P.O-Alanahat,
P.S. Naugaon and found the following injuries:
1. One communicated fracture on left leg 5cm above
ankle join The injury was grevious in nature, and
caused by hard and weapon such as Iron rod, lathi,
with force.
2. One collish fracture right hand, above wrist joint
grievous in nature and caused by above object
(weapons).
3. One lacerated wound 10cm extending from the root of
the left thumb and portion of the palm pescure surface.
simple in nature and caused by the above weapons.
4. Two lacerated injury 2cm X1 cm length each on left
leg s and caused by above weapons.
‘5. One lacerated injury 2cmlength x 1 cm breadth on
right leg simple and caused by above weapons. simple
and caused by above weapons.
6. One abrasion, 3cm x 2 cm. found on right arm,
simple in nature and caused by slighinding against
rough surface.
All the injuries are from sl. No.1 to 6 occurred
within 1 to 2 hours. Time of examination 10.45 a.m.
Page 14 of 24
// 15 //
and I examined the injured on 04.08.2006 vide OPD
Regd. No.5595/4.8.2004. But received the police
requisition on 6.8.2004.
Thereafter I submitted injury report Ext.2 Ext.2/1
is my signature.
Cross-Examination by defence:-
2. I had not enquired the injured about the cause of
injuries. I had made stitch about 4 lacerated injuries.
ON that day I informed the matter regarding the injuries
over telephone to P.S. Many persons were present with
injured but Sourav Mallik identified the injured. I do not
remember if the family members of injured were present
or not. At about 11 a.m. I informed the matter to P.S
after treating the injured. A crowbar can be called as
plain surface of iron rod and hard and plain weapon.
The aforesaid injures can be possible by road accident.
I have written in Ext.2 that I received the requisition on
5.8.2004. I have not mentioned in Ext.2 that I received
the requisition on 5.8.2004. I have not mentioned the
date and time of examination.
Statement of P.W.7
On 08.04.2004, I was in my present post. On
that date at 7.30 P.M. I examined Susanta Mallik in
casuality department of SCBMCH, Cuttack. Vide COPD.
No.12017 dt.04.08.2004 and I have received police
requisition from Supdt SCBMCH, Cuttack on 06.11.2004
vide examinaitoin. I found stich would of 8cm length
along the 1st wave space on Pamar aspect of left hand.
It was simple in nature, might have been caused by
blunt weapon.
2. Stitch would 4 cm. length against anter medias
aspect or right leg. 8 cm. away from knee joint. Simple
in nature, might have been caused by blunt weapon.
3.Stitched would 2 innons, one 10 cm. long another 1 cm.
long along aterror aspect of left leg 10 cm. away from
ankle joint. It was grievous iin nature might have been
casued by blunt weapon.
4. In medocilical Xray- bearing film no.6998 dt.5.8.2004
shows x-ray of left leg ap and laternal view showing
fracture lower third soft of fibia and fibula on left side.
Page 15 of 24
// 16 //
5. X-ray, right wrist joint ap and lateral view showing
facture lower end of radious on right side.
as per the MAC report reported by Radiology,
injury no.3 was grievous in nature and duration of injury
is more than 6 hours AT THE TIME OF EXAMINATION.
Thereafter, I submitted injury report Ext.3 and Ext.3/1 is
my signature.
Cross-Examination:-
The patient was referred from Naugaon PHC and the
stitching ws done there. I have not mentioned the colour
of the injuries which can show the time of duration of
assault and I found three stitched would. One Dillip
Kumar Mohanty brother in law of injured had
accompanied him and identified. Usually the above
injuries may not caused the death of a person some
dislocation. The X-ray films are not available on record.
3.3. It is also contended that the I.O of the case also
proved the prosecution allegation and the allegation that
the F.I.R was not drafted by the informant and the said
F.I.R is not the original F.I.R, could not be proved by the
defence. Statement of P.W.8 in his cross-examination in
para-8 reads as follows:
On the day of occurrence I had been to Nuagaon
PHC once and mate the injured and recorded his
statement. It is not a fact that before the
examination. Nuagaon CHC, within 9.30 a.m. the
injured along with Mahendra Mallick had been to
the P.S and seeing their condition I directed them
to be examined by the Doctor first. It is not a fact
that at 10.30 a.m. I recached at Medical at
Naugaon and Mahendra Mallik narrated the entire
incident to me there and during that time, I also
examine the injured Susanta. I have not
ascertained from Sanakar Mallik regarding the
author of the FIR. I had not seen the informant at
Page 16 of 24
// 17 //the Hospital when I reached there. After treatment
from Cuttack, I had not recorded the statement of
the injured at his village. No other police officer
had been to the Medical before receipt of the FIR by
me. It is not a fact that I have not examined
Sourav Mallick and others. Prior to receive of
requisition on the injured was examined by the
Doctor at Naugaon. It is not a fact that the FIR
Ext.1 was not the first F.I.R and before it I was
informed by many other persons including
Mahendra and Susanta regarding the occurrence
and without sufficient material I submitted charge
sheet and my investigation was proper .
3.4. Learned Addl. Govt. Advocate accordingly
contended that since allegation of assault on P.W.3 was
well proved not only by the injured as P.W.3, but also by
P.Ws.1 & 2, who happens to be eye-witnesses to the
occurrence, no illegality or irregularity can be found with
the impugned order of conviction and sentence. A
further submission was also made that defence has failed
to show any other ground for which the injured sustained
all those injuries on the fateful day. P.W.3 in his cross-
examination also clearly implicated the appellants who
caused the injuries on him. Statement of P.W.3 in para-2
of his cross-examination reads as follows:
2. I have been to the saloon of Narayan Barik
where from I was returning. The saloon was within
500 to 700 meters from the spot and it was at 9 a.m.
ON the occurrence took place. My house was at a
distance of 200 cubits from the house of accused
Page 17 of 24
// 18 //persons towards the shop without any intervening
houses. The paddy filed was towards the south of
the house. I was alone while returning from saloon.
During he course of assault P.W.1 and 2 arrived
near me. I was on the ground and was assaulted
by four accused persons during which P.W.1 and 2
arrived at the spot. I was in my sense. Accused
Siba Mallik was at a distance of one and half cubits
and initiated the first blow with much force by the
sharp side of the farsa. The wooden portion was
within 1 to an half cubits and the iron portion was
six to eight inches of his farsa having two inches
wide on the iron portion. Naba and Bishnuy gave
15 to 20 blows on me by the crowbar with much
force. On my legs shoulder, back. The iron rods
were of two cubits in length with 3/4th inch
circumspect having plain surface. The crowbar was
of 2 cubits in length having one inch in round with
plain surface. I raised my voices some persons were
passing who are not known to me and they did not
stop there except P.W.s1 and 2. Village Oranda and
Kanipada was within one kms. Distance. I was
with senses when I reached at Nat Naugaon P.S. in
the motor cycle with Mahendra.
3.5. Learned Addl. Govt. Advocate also contended that
because of the injury sustained by P.W.3, he was not
only treated in the local hospital but also on being
referred, remained as an indoor patient in the S.C.B
Medical College and Hospital for around 29 days.
3.6. With regard to the submission of the learned
counsel for the appellants that because of the
discrepancies in the statement of P.Ws, such evidence of
the P.Ws.1 to 4 are not to be relied on, it is contended
Page 18 of 24
// 19 //
that if the evidence of the P.Ws read as a whole inspires
confidence, the same can be relied upon. In support of
such submission, reliance was placed to a decision of the
Apex Court rendered in the case of Smt. Shamim Vs.
State (GNCT of Delhi), Criminal Appeal No.56 of 2018
decided on 19.09.2018. Apex Court in para 12 of the
said judgment held as follows:
12. While appreciating the evidence of a witness, the approach must
be whether the evidence of the witness read as a whole inspires
confidence. Once that impression is formed, it is undoubtedly
necessary for the court to scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and infirmities pointed
out in the evidence as a whole and evaluate them to find out whether it
is against the general tenor of the evidence and whether the earlier
evaluation of
the evidence is shaken as to render it unworthy of belief. Minor
discrepancies on trivial matters not
touching the core of the case, hypertechnical approach by taking
sentences torn out of context here or there from the evidence,
attaching importance to some technical error without going to the
root of the matter would not ordinarily permit rejection of the
evidence as a whole. Minor omissions
in the police statements are never considered to be fatal. The
statements given by the witnesses before the police are meant to be
brief statements and could not take place of evidence in
the court. Small/Trivial omissions would not justify a finding by court
that the witnesses
concerned are liars. The prosecution evidence may suffer from
inconsistencies here and
discrepancies there, but that is a shortcoming from which no criminal
case is free. The main thing to be seen is whether those
inconsistencies go to the root of the matter or pertain to insignificant
aspects thereof. In the former case, the defence may be justified in
seeking advantage of incongruities obtaining in the evidence. In the
latter, however, no such benefit may be available to it.
Page 19 of 24
// 20 //
3.7. Reliance was also placed to a decision rendered in
the case of Narayan Chetanram Choudhury Vs. State
of Maharashtra, (2000) 8 SCC 457. Hon’ble Apex Court
Para 42 of the said judgment held as follows:
42. Only such omissions which amount to contradiction in
material particulars can be used to discredit the testimony
of the witness. The omission in the police statement by
itself would not necessarily render the testimony of
witness unreliable. When the version given by the witness
in the court is different in material particulars from that
disclosed in his earlier statements, the case of the
prosecution becomes doubtful and not otherwise. Minor
contradictions are bound to appear in the statements of
truthful witnesses as memory sometimes plays false and
the sense of observation differ from person to person. The
omissions in the earlier statement if found to be of trivial
details, as in the present case, the same would not cause
any dent in the testimony of PW 2. Even if there is
contradiction of statement of a witness on any material
point, that is no ground to reject the whole of the testimony
of such witness. In this regard this Court in State of H.P.
v. Lekh Raj [(2000) 1 SCC 247 : 2000 SCC (Cri) 147 :
(1999) 9 ST 155] (in which one of us was a party), dealing
with discrepancies, contradictions and omissions held:
(SCC pp. 258-59, paras 7-8)
“Discrepancy has to be distinguished from contradiction.
Whereas contradiction in the statement of the witness is
fatal for the case, minor discrepancy or variance in
evidence will not make the prosecution’s case doubtful.
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 the depositions. Parrot-like statements
are disfavoured by the courts. In order to ascertain as to
whether the discrepancy pointed out was minor or not or
the same amounted to contradiction, regard is required to
be had to the circumstances of the case by keeping in
view the social status of the witnesses and environment in
which such witness was making the statement. This Court
in Ousu Varghese v. State of Kerala [(1974) 3 SCC 767 :
1974 SCC (Cri) 243] held that minor variations in the
Page 20 of 24
// 21 //accounts of the witnesses are often the hallmark of the
truth of their testimony. In Jagdish v. State of M.P. [1981
Supp SCC 40 : 1981 SCC (Cri) 676] this Court held that
when the discrepancies were comparatively of a minor
character and did not go to the root of the prosecution
story, they need not be given undue importance. Mere
congruity or consistency is not the sole test of truth in the
depositions. This Court again in State of Rajasthan v.
Kalki [(1981) 2 SCC 752 : 1981 SCC (Cri) 593] held that in
the depositions of witnesses there are always normal
discrepancies, however, honest and truthful they may be.
Such discrepancies are due to normal errors of
observation, normal errors of memory due to lapse of time,
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.
Referring to and relying upon the earlier judgments of this
Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 :
1985 SCC (Cri) 105 : AIR 1985 SC 48] , Tahsildar Singh v.
State of U.P. [AIR 1959 SC 1012 : 1959 Cri LJ 1231] ,
Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988
SCC (Cri) 559 : JT (1988) 1 SC 249] and Rammi v. State of
M.P. [(1999) 8 SCC 649 : JT (1999) 7 SC 247] this court in
a recent case Leela Ram v. State of Haryana [(1999) 9
SCC 525 : JT (1999) 8 SC 274] held:
‘There are bound to be some discrepancies between the
narrations of different witnesses when they speak on
details, and unless the contradictions are of a material
dimension, the same should not be used to jettison the
evidence in its entirety. Incidentally, corroboration of
evidence with mathematical niceties cannot be expected in
criminal cases. Minor embellishment, there may be, but
variations by reason therefor should not render the
evidence of eyewitnesses unbelievable. Trivial
discrepancies ought not to obliterate an otherwise
acceptable evidence….
The court shall have to bear in mind that different
witnesses react differently under different situations:
whereas some become speechless, some start wailing
while some others run away from the scene and yet there
are some who may come forward with courage, conviction
and belief that the wrong should be remedied. As a matter
of fact it depends upon individuals and individuals. There
cannot be any set pattern or uniform rule of human
reaction and to discard a piece of evidence on the groundPage 21 of 24
// 22 //of his reaction not falling within a set pattern is
unproductive and a pedantic exercise.’ ”
3.8. It is accordingly contended that on the face of the
evidence laid by P.Ws, prosecution has proved the
allegations against the appellants beyond all reasonable
doubt. Minor discrepancies in evidence will not make the
prosecution case doubtful. It is accordingly contended
that the appeal is liable for dismissal.
4. Having heard learned counsel appearing for the
parties and after going through the materials available on
record, this Court finds that the prosecution was set into
motion basing on the F.I.R lodged by the informant-P.W.4
on 04.08.2004. Basing on the allegation in the F.I.R and
after submission of the final form, the appellants stood
charged for the offence under Sections 147/148/
4.1. Taking into account the materials available on
record, learned trial Court held the prosecution to have
failed to prove the offence under Section 307 of the
Indian Penal Code along with Section 148 of the I.P.C.
Page 22 of 24
// 23 //
This Court finds no illegality or irregularity with such
view of the trial Court.
4.2. Placing reliance on the evidence of the P.Ws, this
Court is of the view that the prosecution has proved the
allegation against the appellants beyond all reasonable
doubt. The allegation that the F.I.R was lodged with delay
and the F.I.R is not the original F.I.R drafted by the
informant, is also not acceptable to this Court, in view of
the statement of I.O in his cross-examination.
4.3. This Court is also unable to accept the contention
of the learned counsel for the appellants that the
conviction and sentence is not sustainable because of the
discrepancies in the statement of P.Ws., as the same does
not create any doubt about the truthfulness of the
witnesses. Placing reliance in the decision in the case of
Smt. Shamim and Narayan Chetanram Chaudhury
as cited supra, it is the view of this Court that any such
minor discrepancy is not contradiction in the statement
of witnesses and the same is not fatal for the case.
Page 23 of 24
// 24 //
4.4. In view of the aforesaid analysis, this Court finds
no illegality or irregularity with the impugned order of
conviction and sentence passed by the learned trial court
vide the impugned judgment dt.26.07.2007. Accordingly,
this Court is not inclined to interfere with the same and
dismiss the appeal. Bail bonds furnished by the
appellants stand cancelled and appellants are directed to
surrender to serve the remaining part of the sentence.
4.5. The appeal accordingly stands dismissed.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 16th July, 2025/Sangita
Signature Not Verified
Digitally Signed
Signed by: SANGITA PATRA
Reason: authentication of order
Location: high court of orissa, cuttack
Date: 21-Jul-2025 13:38:53
Page 24 of 24
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