Orissa High Court
Sahadev Bisoi & Others vs State Of Odisha & Others on 6 March, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.149 of 1990
This is an appeal under Section-374(2) of Cr. P.C.
..................
Sahadev Bisoi & Others .... Appellants
-versus-
State of Odisha & Others .... Respondents
For Appellant : M/s. Mr.D.R. Mohapatra
(Amicus Curiae)
For Respondents : M/s. P.K. Panda,
Addl. Standing Counsel
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 04.12.2024 and Date of Judgment:06.03.2025
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Mode.
2. The present appeal has been filed by the Appellants
challenging the order of conviction and sentence dtd.
19.05.1990 passed in Sessions Case No.183/1989 by the
learned Sessions Judge, Ganjam, Berhampur. Vide the said
judgment, appellants have been convicted for the offence
// 2 //
under Sections 304 Part-II, 323, 201 read with Section 34
of the I.P.C. Accordingly all of them were sentenced to
undergo RI for 5 years for the offence under Sections-304
Part-II, for 1 year under Section 323, and 3 years under
Section- 201 of the I.P.C.
3. The prosecution story in nutshell reads as follows:-
“That the prosecution case in brief vas that on
19.6.1989 in the evening one Hazari Das of village
Paikanheipur after retrieving his grains from the pit dug in
front of the house of P. W.1, kis cousin sister (mother,
sister’s daughter) left his cousin’s residence for neighbor
tank to take bath and return for supper. He did not return
and P.W.1 awaited her arrival by sitting in front of her
verandah in village Maheswarpur. It is alleged at about 11
P.M. while P.W.1 was taking position upon her said
verandah heard the noise of a quarrel coming from the side
of the betel shop of P.W.8 and marking the voice of her
cousin since deceased. P. V.1 went to the house of her
neighbor Jagannath Moharana for assistance and noticed
the deceased exchanging hot words with the accused
persons in front of that betel shop. Jagannath Moharana
went out but returning in no time informed P. W.1 not to
Page 2 of 12
// 3 //have noticed the presence of the deceased and further
stated that it is not desirable to meddle in the quarrel of
ruffians. Thereafter P. W.1 went to the house of one Charan
Biswal, another neighbour for securing assistance, but
while there heard the deceased raising a cry to the effect
that he was being beaten. On being attracted by that cry,
she retraced her steps and found the accused persons
encircling him. She tried to interfere but pushing her off the
miscreants (accused persons) dragged away the deceased
towards the road junction and giving him a good amount of
beatings by inflicting kicks and fist blows carried him away
towards the temple of the village. She went after them but
missing owing to their having taken a diversionary path-
way forking out of the main raod, went and altered P.W.2,
the brother of the deceased, and thereafter they alerted
other relatives including P.W.3 and together with them
combed the locality but on finding no trace of the deceased
lodged the report ixt.1 with police on the following morning
at 8.45 A.M. Thereafter P.W.9, the Investigating Officer
registered a case under Sec. 369/323/34 I.P.C. and
thereafter investigated into the matter. Two days thereafter
the dead body of the deceased was found floating inside a
water tank about 2 K.Ms away from the residence of P.W.1
Page 3 of 12
// 4 //on 21.6.1989 morning. P. W.1 held inquest over the dead
body, sent the dead body for post-mortem examination, and
after investigation submitted charge sheet under Section
323/342/302/201 read with Section 34 of Indian Penal
Code and also under Section 364 thereof”.
3.1. It is contended that even though all the accused
persons when charged under Sections 323, 342, 302 and
201 read with Section 34 of the I.P.C and also for the
offence under Section-364 of the I.P.C, learned Sessions
Judge convicted the appellants for the offence under
Section-304 Part-II, 323 and 201 read with Section 34 of
the I.P.C.
3.2. Learned amicus curiae appearing for the appellants
contended that the prosecution in order to prove its case
examined as many as 9 P.Ws, which includes P.Ws.1 and 3
who are the eye witnesses to the alleged occurrence, P.W.4,
the doctor, who conducted post-mortem of the deceased
and P.W.9, the I.O of the case.
3.3. Learned amicus curiae while assailing the impugned
judgment contended that since all the independent
witnesses namely P.W.6 to 8 turned hostile during the trial,
basing on the evidence of P.W.1 and 3, who were related
Page 4 of 12
// 5 //
witnesses, the appellants could not have been held the
guilty for the offence under Sections-304 Part-II, 323, 201
read with Section-34 of the I.P.C.
3.4. It is contended that the alleged incident occurred on
19.06.1989 and the F.I.R was lodged on 20.06.1989 by the
brother of the deceased / P.W.2. All the appellants on their
own surrendered on 25.07.1989 and faced the trial. But
vide the impugned judgment dtd.19.05.1990, all the
appellants were convicted for the offences as indicated
hereinabove. However, in terms of the order dtd.12.06.1990
so passed by this Court, all the appellants were released on
bail and continuing as such as on date. But since during
pendency of the appeal appellant No.1 died, vide order
dtd.25.09.2023, the appeal was abated against appellant
No.1.
3.5. It is contended that since all the independent
witnesses so examined by the prosecution turned hostile
during the trial, basing on the statement of P.W.1 and 3
who are related witnesses, the appellants could not have
been held guilty for the offence under Section-304 Part-II,
323, 201 read with Section-34 of the I.P.C.
Page 5 of 12
// 6 //
3.6. It is also contended that even though no materials
could be brought against the appellant Nos.2 and 3 but
they have been treated at par with the appellant No.4 and
all of them were convicted and sentenced for the offence
under Section-302 Part-II, 323, 201 read with Section-34 of
the I.P.C.
4. Making all the submissions, learned amicus curiae
appearing for the appellants contended that the impugned
order of conviction and sentence is not sustainable in the
eye of law and it requires interference of this Court.
5. Mr. P.K. Panda, learned Addl. Standing Counsel for
the State on the other hand while supporting the impugned
judgment contended that even though P.W.6, 7 and 8, who
are independent witnesses turned hostile during the trial,
but in view of the evidence lead by P.W.1 and 3 and so also
the opinion of the doctor- P.W.4, which remained
uncontroverted, learned Trial Court rightly held the
appellants guilty for the offences under Sections-304 Part-
II, 323 and 201 read with Section 34 of the I.P.C.
5.1. It is contended that P.W.1, who happens to be an eye
witness to the alleged occurrence, in her cross- examination
clearly indicated that all the four appellants caused death
Page 6 of 12
// 7 //
of the deceased-Hazari. P.W.1 in her cross-examination,
more particularly in Para-9 and 14 stated as follows:-
“9. Hajari, the deceased, his brother’s Raju and Bipra,
mother Mandn and relations Bancha Das, Subhas Das
and Jogendra Das had been standing trial by the time
of the incident on the allegation that they had murdered
Surendra Tripathy of village Gopalpur which adjoins
village Luchapada allas Fai-kon-heipur. By the time of
Hajari’s death, villagers of Luchapada and Gopalpur
had boycotted all those accused of murder of that
Surendra Tripathy. It is not a fact that the accused
persons as members of the local association Jubaka
Sangha had raised objection to our winning over the
witnesses to the murder of Surendra Tripathy, but in
spite of their objection we had been able to win them
over. It is not a fact that since that time of interference of
the accused persons we have been remaining hostile to
them.
xxx xxx xxx
14. I was clasping my brother after getting on to my
verandah and while I was so clasping I had been
elbowed out to my fall upon the ground in front of my
verandah. I had sustain-d injuries on my hand and
back owing to that fall. As there was no one to oppose
the accused persons could drag away Hajari from my
place. Before I was able to get up and raise the cry in
order to attract the attention of the villagers, the
miscreants had carried away my brother. Charan
Biswal was the first one to come to me in res-ponse to
my call and requesting him to keep watch over the door
to my house, which was lying open then, went out to
inform my brothers, inside the village. After informing
my brothers inside the village I returned to my house”.
5.2. It is also contended that P.W.3, in Para-9 of his cross-
examination has stated as follows:-`
“9. My house is at a distance of about one mile from the
house of deceased Hazari Das. It is not a fact that I had
not seen Hazari Das being belaboured by the accused
persons and that owing to relationship with Hazari’s
Page 7 of 12
// 8 //
family I have falsely implicated the accused persons on
giving false evidence”.
5.3. It is also contended that P.W.4 who happens to be the
doctor and who conducted the post-mortem of the
deceased, in Para-5 of his cross-examination has stated as
follows:-
“5. There was no external injury corresponding to the
internal injury to the spleen. Pounding by means of the
butt end of M.0.III could have brought about the rupture
of the spleen without leaving any corresponding external
injury owing to the fact that the end is cut out /clean, by
a saw. It is not a fact that corrugated skin is indicative
of death while immersed inside water. It is not a fact
that a dead body of a human being on being thrown into
water, as it is would not sink but float”.
5.4. It is also contended that P.W.9 who happens to be an
I.O. In Para-4 and 5 of his deposition has stated as
follows:-
“4. In front of the house of Jagannath Maharana by the
side of the road was lying the towel, M.0.1, and I seized
the same under the seizure list, Ex.11. Shortly
thereafter, on production of M.0.1II, the part of a cart-
wheel, by Jegannath Maharana, I seized the same
under the seizure list, Ex.2. I then examined Sanyasi
Parida, Jagannath Maharana, Manojranjan Sahu,
Bebhari Sahu and others of the locality and recorded
their statements. Thereafter, I went in search of all the
four accused persons of this case and the missing
person, Hazari Das, but could get no trace of them in
their houses or in villages Lochapada, Paikonhelpur,
Manikpur, Maheswarpur and Konhelpur. I issued the
requisition, Ex.12, for medical examination of Budhi and
collected the report, Ex.12/1, from the Medical Officer,
who examined her.
5. I searched the houses of the accused persons after
combing all those villages. On the following morning, of
Page 8 of 12
// 9 //21.6.1989, while combing the locality, I got information
that something was found floating on the water of the
Kekudia tank of village Kandhigaon, that was at a
distance of 2 kilo-meters from the shop of Bebhari Sahu
in the south-eastern direction, and on getting this
information, I went to that tank and found the dead
body of an adult male person, roughly of the age of
about 30 years, bearing injuries, floating on the water of
the tank with that underwear, M.O.II, covering the
shame and that twine, M.O.IV, adorning the neck”.
5.5. Learned Addl. Standing Counsel for the State also
contended that P.W.4, who happens to be the doctor found
as many as 16 no’s. of external and internal injuries on the
deceased which are all ante-mortem in nature. In Para-2 of
his deposition, P.W.4 clearly indicated that all the injuries
were homicidal in nature and might have been caused by
use of blunt force, like kick, fist blow or strike by means of
hard and blunt objects like stick or stone. Statement of
P.W.4 in Para-2 reads as follows:-
“2.The death had occurred 36 to 48 hours before post-
mortem examination. The body had been kept inside
water after death but there was no feature of drowning.
The death was owing to shock resulting from the
internal haemorrhage into the paritonial cavity from the
ruptured spleen and external hemorrhage from the right
arm. The injuries were homicidal in nature and might
have been caused by use of blunt force, like kick, fist
blow or strike by means of hard and blunt object, like
stick or stone. The grazed abrasion noticed on the back
might have come into being on dragging the body upon
the ground having rough surface. Ex.8 is the post-
mortem report which I had submitted in that regard”.
6.1. Learned Addl. Standing Counsel for the State placing
reliance on the evidence of P.W.1, 3 and 4 and that of P.W.9
Page 9 of 12
// 10 //
contended that taking into account the evidence of such
witnesses, which remained uncontroverted, learned Trial
Court by taking lenient view of the matter while not
convicted the appellants for the offence under Section-302
of the I.P.C, convicted them under Sections-304 Part-II, 323
and 201 of I.P.C read with Section-34 of the I.P.C.
6.2. It is accordingly contented that no illegality or
irregularity can be found with the impugned judgment and
the appellants have been rightly convicted and sentenced.
7. I have heard Mr. D.R. Mohapatra, learned Amicus
Curiae appearing on behalf of the appellants and Mr. P.K.
Panda, learned Addl. Standing Counsel appearing for the
State.
8. Perused the materials placed in record. As found the
alleged incident took place on 19.06.1989 and basing on
the F.I.R lodged by P.W.2, who happens to be the brother of
the deceased, the prosecution was set into motion with
registration of Rambha P.S. Case No.145/1989,
corresponding to G.R. Case No.148/1989. After submission
of the final form with due commitment, all the appellants
were charged for the offences under Section-323, 342, 302,
201 read with Section 34 of the I.P.C and also for the
Page 10 of 12
// 11 //
offence under Section-364 of the I.P.C. As found from the
record, the prosecution in order to prove its case examined
as many as 9 no.s of P.Ws. Out of those 9 P.Ws, though all
the independent witnesses, who happens to be P.W.6, 7
and 8 turned hostile during trial, but in view of the
uncorroborated statement of P.W.1, who happens to be an
eye witnesses to the alleged occurrence read with the
statement of P.W.4-doctor, the appellants have been
convicted and sentenced for the offence under Sections-
304, Part-II, 323 and 201 read with Section 34 of the I.P.C
thereof. This Court after going through the materials
available on record finds that the statement of P.W.1, who
happens to be an eye witnesses has not been controverted
by the defence.
8.1. P.W.4, the doctor who made the post-mortem found
as many as 16 no.s of external or internal injury on the
dead body of the deceased and all the injuries were ante-
mortem in nature. Even though P.W-6, 7 and 8 turned
hostile during their examination, but this Court placing
reliance of the evidence of P.W.1 and the statement of the
doctor-P.W.4 as well as that of the I.O-P.W.9 is of the view
that the appellants have been rightly held guilty for the
Page 11 of 12
// 12 //
offence under Sections 304 Part-II, 323 and 201 read with
Section 34 of the I.P.C.
8.2. Therefore, this Court is not inclined to interfere with
the impugned order of conviction and sentence so passed
vide judgment dtd.19.05.1990. But taking into account the
fact that the incident is of the year 1989 and the appellants
are continuing on bail w.e.f. 22.06.1990, this Court is
inclined to direct for release of the appellant Nos.2 to 4
under the provisions of Probation of Offenders Act, 1958.
This Court accordingly directs the court in seisin to release
the appellant Nos.2 to 4 under the provisions of Probation
of Offenders Act, 1958. Appellant Nos.2 to 4 are accordingly
directed to appear before the Court in seisin within a period
of one (1) month from the date of receipt of this order. On
their appearance, learned Court in seisin shall release the
appellant Nos.2 to 4 under the provisions of P.O Act.
9. Accordingly, the appeal stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Signature Not Verified
Orissa High Court, Cuttack
Digitally Signed Dated the 6th of March, 2025/Subrat
Signed by: SUBRAT KUMAR BARIK
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 13-Mar-2025 17:22:34
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