Orissa High Court
State Of Odisha vs Panu Bisoi & Another on 4 March, 2025
Bench: K.R. Mohapatra, V.Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
Government Appeal No.21 of 1999
&
Criminal Appeal No.217 of 1998
In the matter of appeals under Section 378(1)(3) and
374 of the Code of Criminal Procedure, 1973 and from
the judgment of conviction and order of sentence
dated 25.06.1998 passed by the learned 1st Additional
Sessions Judge, Berhampur in S.C No.11/97 (S.C
No.156/97 G.D.C.).
----
Government Appeal No.21 of 1999
State of Odisha …. Appellant
-versus-
Panu Bisoi & another .... Respondents
Criminal Appeal No.217 of 1998
Panu Bisoi & ..... Appellants
another
-versus-
State of Odisha Respondent
For Appellant - Mr. P. K. Sahoo,
Additional Standing Counsel
(In G.A No.21 of 1999)
GA No.21 of 1999 & CRA No.217 of 1999 Page 1 of 19
Mr. D. Sarangi, Advocate
(In CRA No. 217 of 1998)
For Respondents – Mr. D. Sarangi, Advocate
(In G.A. No 21 of 1999)
Mr. P. K. Sahoo,
Additional Standing Counsel
(In CRA No. 217 of 1998)
CORAM:
MR. JUSTICE K.R. MOHAPATRA
MR. JUSTICE V.NARASINGH
Date of Hearing : 28.11.2024 : Date of jugment:_04.03.2025V. Narasingh,J. Since these two appeals arise out of one
judgment of conviction and order of sentence dated
25.06.1998 passed by the learned 1st Additional
Sessions Judge, Berhampur in S.C. No.11/97 (S.C.
No.156/97 G.D.C) they were heard together for
disposal by this common judgment on the consent of
the learned counsel for the parties.
During pendency of appeals, it was brought on
record that in C.R.A No.217 of 1998 Appellant No.1-
Panu Bisoi (Respondent No.2 in G.A No.21 of 1999)
has died and since the Appellant No.2 did not evince
any interest to pursue the appeal on behalf of his
father, the same abates qua the Appellant No.1 and
G.A No.21 of 1999 is thus confined to Respondent
No.2-Pravakar Bisoi.
GA No.21 of 1999& CRA No.217 of 1998 Page 2 of 19
The Appellants being arraigned as the accused
persons faced the trial in the court of learned 1st
Additional Sessions Judge, Berhampur for commission
of offence under Section 302/34 of the Indian Penal
Code, 1860 (in short, ‘the IPC‘). Learned 1st Additional
Sessions Judge, Berhampur by the impugned
judgment convicted the accused persons for
commission of offence under section 304-II/34 IPC
and accordingly thereunder each was sentenced to
undergo rigorous imprisonment for five years and to
pay a fine of Rs.1000/-, in default, to undergo further
rigorous imprisonment for one month.
The appeal i.e. G.A. No.21 of 1999 is at the
behest of the State questioning the conviction of the
accused persons under Section 304-II/34 IPC seeking
conviction and sentence under Section 302/34 IPC
whereas C.R.A No.217 of 1998 has been filed by the
accused persons challenging the judgment of
conviction and order of sentence passed against them.
2. Prosecution case –
On 09.09.1996 around 7.00 A.M Jaya Bisoi
(deceased) went to his paddy field. By 8 A.M., his wife
(informant-P.W.1) enquired about her husband
(deceased) from Krushna Khillar (P.W.9) who told her
that Prabhakar Bisoi (Accused No.2) had called some
gentlemen to the paddy field and her husband
GA No.21 of 1999& CRA No.217 of 1998 Page 3 of 19
(deceased) was present there. The informant locked
her house and went towards the paddy field where she
saw from a distance that Panu Bisoi (Accused No.1)
had overpowered her husband. Hence she rushed to
the place of occurrence to rescue her husband at
which the accused Prabhakar (Accused No.2 son of
Accused No.1) struck her left hand with the handle of
the axe causing her to fall. Thereafter, while
Prabhakar Bisoi (Accused No.2) threatening to kill the
deceased, dealt two axe blows near the right elbow
joint and another blow to the right ankle joint of the
leg. He also dealt another blow on the left lower limb
causing profuse bleeding from those injuries. The
informant raised hullah hearing which other villagers
came at the place of occurrence and seeing the
villagers coming accused persons fled away. According
to her, occurrence took place in the presence of
Kailash Chandra Misra (P.W.5) and Krushna Khillar
(P.W.9) both residents of her village and eyewitnesses
to the incident. Thereafter, the deceased was removed
to Tarasingi Hospital where he was declared dead by
the Doctor. The Informant along with Kailash Chandra
Misra (P.W.5), lodged the written report at the Police
Station.
3. In course of the investigation, the Police held
inquest of the deceased Jaya Bisoi and sent it for post
mortem, examined witnesses, and got the Informant’s
GA No.21 of 1999& CRA No.217 of 1998 Page 4 of 19
injuries examined. The blood-stained clothing (M.Os-V
and VI) and the weapon tangia (M.O-I) was also
seized by the Police and were sent for chemical
examination and finding a prima facie case submitted
charge sheet against the accused persons
(Appellants).
4. In the trial, the prosecution in order to bring
home the charge against the accused persons in total
examined 13 (thirteen) witnesses. Out of whom,
P.W.1 is the Informant, wife of the deceased Jaya
Bisoi, P.Ws.2 and 3 are the local gentle men who were
called to the place of occurrence to amicably settle the
dispute. Kailash Chandra Misra (P.W.5) and Krushna
Khillar (P.W.9) are the eyewitnesses to the
occurrence. P.W.5 is also the scribe of the FIR.
Surendra Bisoi (P.W.4) is the younger brother of the
deceased. Tuna Barik (P.W.8) is the son-in-law of the
deceased. P.Ws.4 and 8 are the post occurrence
witnesses. The Doctor, who conducted the post-
mortem examination over the dead body of the
deceased was examined as P.W.13 and P.W.12 is the
Doctor, who had medically examined the Informant.
The Investigating Officer has been examined as
P.W.11 and P.W.10 is the C.I. of Police who submitted
the charge-sheet against the accused persons.
GA No.21 of 1999& CRA No.217 of 1998 Page 5 of 19
4-A. Besides leading the evidence by examining above
witnesses, the prosecution has also proved several
documents which have been admitted in evidence and
marked as Ext.1 to Ext.20/1. Out of those, the
significant ones are the FIR-Ext.1, Inquest Report-
Ext.2, Post- Mortem Report-Ext.20 and Spot Map-
Ext.18.
4-B. The plea of the accused father, Panu Bisoi in
defence is that he exercised the right of private
defence. However, no witness has been examined on
behalf of the defence.
On the other hand, the accused-son, Prabhakar
Bisoi took the plea of alibi. He stated that he was not
present at the place of the occurrence as he had been
to tuition at Kalinga Padar and due to their prior
enmity, he has been falsely implicated.
5. Learned trial court on going through the evidence
led by the prosecution and upon scrutiny and
analyzing thereof has come to the conclusion that the
prosecution has proved the occurrence beyond
reasonable doubt by leading clear, cogent and
acceptable evidence as against the Appellants-accused
persons.
Learned trial court took into account the evidence
of the Doctor (P.W.13), who had conducted the post-
GA No.21 of 1999& CRA No.217 of 1998 Page 6 of 19
mortem examination over the dead body of the
deceased and stated that the cumulative effect of all
the external injuries were fatal in the ordinary course
of nature to cause death and could be caused by a
sharp cutting weapon like a tangia, and the death was
due to haemorrhagic shock. P.W.13 also stated that
had the injuries been attended to at the nick of
the moment by a Doctor, the life of the deceased
could have been saved. Learned court also found
that accused father, Prabhakar Bisoi had enough
scope to give blows to any vital part of the body
such as the heart, chest and abdomen, which
was not done in this case. All the injuries were
sustained by the deceased on his hands and legs
indicating that the accused persons had only intended
to make him physically invalid without any intention of
causing murder. Further, the accused persons having
assaulted with a tangia had the knowledge that such
an act was likely to cause death or to cause such
deadly injuries, learned court held them guilty for
commission of offence under Section 304-II IPC and
sentenced them as aforestated.
Stand of the Appellant in CRA No.217 of 1998
6. Learned counsel for the Appellants in CRA No.217
of 1998 (accused persons) submitted that the learned
trial court erred in convicting the Appellants despite
GA No.21 of 1999& CRA No.217 of 1998 Page 7 of 19
the absence of any independent eyewitness to the
occurrence as all the witnesses are close relatives of
the deceased. It was further submitted that the
learned trial court without properly scrutinizing the
evidence of the prosecution witnesses especially P.W.1
that no one else was present during the assault
contradicts the presence of P.W.5 and P.W.9, who
have said to have arrived hearing the shout of P.W.1
but claimed to have witnessed the entire incident, has
erred in holding that the prosecution has proved the
participation of these accused persons in the said
incident in causing injuries upon the deceased beyond
reasonable doubt. He further submitted that the
evidence of all these witnesses being properly scanned
do not satisfy the test of reliability in so far as the role
ascribed to these accused persons.
During course of hearing, learned counsel for the
convicts who are Appellants in CRA No.217 of 1998
brought on record disability certificate as well as
unique ID Card of Appellant No.2 in CRA No.217 of
1998 (Prabhakar Bisoi) issued on 10.06.2017 showing
disability of the said Appellant to the extent –
(A) He is a case of Locomotor Disability
(B) The diagnosis in his case is B.E elbow
right lower l/3rd of fore arm
(C) He has 65% (in figure) Sixty Five
percent (in words) Permanent Disability.
GA No.21 of 1999& CRA No.217 of 1998 Page 8 of 19
Placing reliance on the disability certificate,
learned counsel for the Appellants, Sri Sarangi
submitted that in the meantime Appellant No.2 has
been punished by the divine and has become 65%
disabled and prayed for acquittal of the said Appellant
and consequentially sought dismissal of the
Government Appeal.
To fortify his submission, he relied on the
decisions of the Apex Court in the case of State of
Karnataka vrs. Muddappa, (1999) 5 SCC 732,
Ram Prakash Singh vrs. State of Bihar, (1998) 9
SCC 497, K. Ramakrishnan Unnithan vrs. State of
Kerala, (1999) 3 SCC 309 and Baijnath Mahton
and others vrs. State of Bihar, 1993 Supp (3)
SCC 1.
Submission of the learned Public Prosecutor
7. Learned counsel for the State-Appellant, on the
contrary while pointing out evidences of P.Ws.1, 5, 7,
8, 9, 11 and 13 contends that in the face of direct
evidence before the learned trial court conviction
ought to have been under Section 302/34 IPC and no
reasoning has been given by the learned trial court
while convicting the accused persons for a lesser
offence under Section 304-II/34 IPC. Therefore, the
conviction ought to be one under Section 302/34 IPC.
GA No.21 of 1999& CRA No.217 of 1998 Page 9 of 19
While referring to evidence of P.W 13 learned
counsel for the State further submitted that P.W 1 has
clearly stated that all the injuries were fatal in
ordinary course of nature to cause death.
It is further contended that P.Ws.1, 5 and 9 are
the eyewitnesses to the occurrence who categorically
deposed about the assault made by the Appellants.
P.Ws. 7 and 8 are the witnesses before whom the
deceased made dying declaration which was found to
be believable by the learned trial court. Thus the
credibility of evidence of P.Ws.1, 5, 7, 8, 9, 11 and 13
cannot be questioned.
7-A. Learned counsel for the Respondent-State in CRA
No.217 of 1998 and on behalf of the Appellant-State
in G.A. No.21 of 1999 submitted that the evidence of
the prosecution witnesses to the effect that these
accused persons assaulted the deceased by means of
tangia has gone unchallenged which the learned trial
court has rightly accepted as their versions contain no
such infirmity. It is his assertion that with such
evidence on record, keeping in view the manner in
which the incident took place as stated by P.W.1 and
others, since the accused persons had assaulted the
deceased by a dangerous weapon and ultimately the
injuries caused thereupon have led to the death of the
deceased, the conviction of the accused persons ought
GA No.21 of 1999& CRA No.217 of 1998 Page 10 of 19
to have been for commission of offence under Section
302 IPC and not under section 304-II IPC.
Learned Public Prosecutor submitted that the
conviction under Section 304-II IPC is outcome of
perverse appreciation of evidence and there being no
mitigating circumstance conviction should be altered
to one under Section 302 IPC. And, it is his further
submission that the disability certificate ought not to
weigh with this Court in assessing the evidence on
record qua the complicity of the sole surviving
Respondent (Appellant No.2 in CRA No.217 of 1998).
He also referred to the dying declaration of the
deceased.
Learned counsel for the State Sri Sahoo relied on
the judgment of the Apex Court in the case of Prasad
Pradhan & another vs. The State of Chhattisgarh,
(2023) 11 SCC 320 more particularly paragraph-6,
22 and 24 thereof which are quoted for reference;
6. Learned counsel for the appellants
also argues that the death of Vrindawan
took place after about 20 days of the
incident on account of complication in the
surgery and it cannot be said that the
cause of death was injury as the
prosecution could not prove that injury
caused to the deceased, in ordinary course
of nature, was sufficient to cause death.
Learned counsel highlighted that the injury
GA No.21 of 1999& CRA No.217 of 1998 Page 11 of 19
caused by the appellants, particularly the
head injury, was stitched in and had
healed. Learned counsel emphasized that
Vrindawan died as a result of cardio-
respiratory failure, as stated by PW14.
Such being the case, the finding of the
courts below that the appellants were
guilty of the offence of Section 302 IPC
was clearly in error of law. It was argued
that arguendo, if the prosecution could be
said to have proved the attack by the
appellants on the deceased, the cause of
death neither being immediate nor a direct
result of it, there is no question of the
ingredients of the offence of murder
under Section 302 IPC having been proved
beyond reasonable doubt.
22. The question then is – was there a
“sudden quarrel” between the deceased
and the appellants so that the case would
not be murder, but culpable homicide, in
terms of Exception 4 (“if it is committed
without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel
and without the offender having taken
undue advantage or acted in a cruel or
unusual manner”). In the opinion of this
court, there was no “sudden quarrel”. The
testimonies of the two important
eyewitnesses, PW1 and PW2, establish
that when the deceased was levelling the
septic tank on his property, the
accused/appellants started abusing him;
he asked them not to. The appellants, who
GA No.21 of 1999& CRA No.217 of 1998 Page 12 of 19
were in the adjacent property, climbed the
wall, entered the deceased’s house, and
attacked him with axes. These facts do not
constitute a “sudden quarrel”, given that
the appellants abused the deceased, in an
unprovoked manner, and then they went
to where he was, armed with axes, and
assaulted him. Arguendo, even if the facts
are assumed to disclose that there was a
sudden fight, it cannot be said that the
accused failed to act in a cruel manner, or
did not take undue advantage. This is
because they were armed: a fact which
shows pre-meditation on their part.
Moreover, they both attacked Vrindawan
on the head, which is a vital part of the
body, thus taking undue advantage of
their situation.
24. If one were to apply the above tests
to the present case, what is evident is that
while there were pre-existing disputes of
some vintage, between the appellants and
the deceased, there is nothing to show
that they had been aggravated. It is also,
likewise, not clear whether the deceased
said anything to the appellants which
triggered their ire, leading to loss of self-
control as to result in “grave and sudden
provocation”. In any case, if there were
something, the appellants ought to have
brought the relevant material or evidence
on record, as what facts did exist, was
within their peculiar knowledge.”
GA No.21 of 1999& CRA No.217 of 1998 Page 13 of 19
7-B. The judgment relied upon by the learned counsel
for the State in the case of Prasad Pradhan (supra) is
ex-facie distinguishable on facts, inter alia, on account
of the seat of the injury.
FINDINGS
8. Keeping in view the submissions made, this Court
carefully considered the judgment of conviction
impugned in these appeals, have also gone through
the depositions of all the witnesses P.W.1 to P.W.13
meticulously and perused the documents which have
been admitted in evidence and marked Ext. 1 to
Ext.20/1.
8-A. The question is whether the Appellants are guilty
of the offence of murder, punishable under Section
302 IPC, or whether they are criminally liable under
the less severe Section 304-II IPC as held by the
learned trial court or whether Appellant No.2 is
entitled to an order of acquittal as prayed for by the
learned counsel for the Appellant No.2 in CRA No.217
of 1998. The determinative fact would be the intention
to cause such injury and what was the degree of
probability (gravest, medium, or the lowest degree) of
death which determines whether the crime is culpable
homicide or murder.
GA No.21 of 1999& CRA No.217 of 1998 Page 14 of 19
Law is well settled that distinguishing factor as to
whether an act falls within the ambit of Section 299 or
300 IPC is mens rea. It would be apposite to refer to
the decision of the Apex Court in the case of
Pulicherla Nagoraju @ Nagaraja Reddy vs State
of Andhra Pradesh, (2006) 11 SCC 444 in this
regard and quote the following paragraph.:-
“29. Therefore, the Court should proceed to
decide the pivotal question of intention, with
care and caution, as that will decide whether the
case falls under Section 302 or 304 Part I or 304
Part II. Many petty or insignificant matters
plucking of a fruit, straying of cattle, quarrel of
children, utterance of a rude word or even an
objectionable glance, may lead to altercations
and group clashes culminating in deaths. Usual
motives like revenge, greed, jealousy or
suspicion may be totally absent in such cases.
There may be no intention. There may be no
premeditation. In fact, there may not even be
criminality. At the other end of the spectrum,
there may be cases of murder where the
accused attempts to avoid the penalty for
murder by attempting to put forth a case that
there was no intention to cause death. It is for
the courts to ensure that the cases of murder
punishable under Section 302, are not converted
into offences punishable under section 304 Part
I/II, or cases of culpable homicide not
amounting to murder are treated as murder
punishable under Section 302. The intention to
cause death can be gathered generally from a
combination of a few or several of the following,
among other, circumstances;
i. nature of the weapon used;
GA No.21 of 1999& CRA No.217 of 1998 Page 15 of 19
ii. whether the weapon was carried by the accused
or was picked up from the spot;
iii. whether the blow is aimed at a vital part of the
body;
iv. the amount of force employed in causing injury:
v. whether the act was in the course of sudden
quarrel or sudden fight or free for all fight;
vi. whether the incident occurs by chance or whether
there was any premeditation;
vii. whether there was any prior enmity or whether
the deceased was a stranger;
viii. whether there was any grave and sudden
provocation, and if so, the cause for such
provocation;
ix. whether it was in the heat of passion:
x. whether the person inflicting the injury has taken
undue advantage or has acted in a cruel and
unusual manner;
xi. whether the accused dealt a single blow or several
blows.
9-A. It is on record that the Appellants and the
deceased were co-villagers. On the fateful day the
deceased threw grasses on the field of the convict Panu
Bisoi, for which said Panu Bisoi called P.Ws. 2 and 3 for
amicable settlement. Said P.W.2 after finding the
mischief done by the deceased settled the matter,
advised both the parties to make peace and left for
their respective houses. However, there were further
altercation leading to death of the deceased at the
hands of the convicts. There is nothing on record to
show that the convicts had intention to kill the
deceased and in furtherance of such intention they
assaulted the deceased and caused his death.
GA No.21 of 1999& CRA No.217 of 1998 Page 16 of 19
Admittedly, P.Ws.7 and 8 before whom the
deceased allegedly named the Appellants as assailants
did not state before the I.O (P.W.11) regarding such
dying declaration allegedly made by the deceased
before them.
10. On the contrary from the post-mortem report
Ext.20 as well as evidence of P.W. 13 who conducted
post-mortem, it is seen that the injuries are not on the
vital organs of the body and this Court is persuaded to
agree with the submission of the learned counsel for
the convicts that the convicts never intended to cause
death of the deceased but due to sudden quarrel which
broke out after failed settlement at the instance of
P.Ws. 2 and 3, the convicts assaulted the deceased and
caused injury on his hand, leg, etc on the spur of the
moment on sudden provocation without any
premeditation. Since there is nothing on record to
suggest intention on the part of the convicts to cause
death of the deceased and evidence on record suggests
that both convicts and deceased suddenly fought,
learned trial court rightly recorded conviction under
Section 304-II/34 IPC instead of Section 302 IPC.
11. From the evidence of the Doctor P.W.13 who had
conducted the post-mortem examination, this Court
finds that the deceased had sustained three incised
wounds one on the right upper arm, another on the leftGA No.21 of 1999& CRA No.217 of 1998 Page 17 of 19
lower limb and the other on the right foot of the
deceased. His specific evidence, however, is that the
cumulative effects of all the external injuries were fatal
in ordinary course of nature to cause death and can be
possible by a sharp cutting weapon like tangia and the
life of the deceased could have been saved injuries
were attended at the nick of the moment. According to
him, cause of death was due to haemorrhagic shock
and has indicated all those in detail in his report
(Ext.20). This being the evidence of the Medical Expert
P.W.13 and the evidence of the prosecution witnesses
more particularly that of P.W.1 is accepted as reliable
and trustworthy in so far as the role ascribed to these
accused persons in assaulting the deceased when
viewed with the surrounding circumstances as those
emanate from evidence with the relationship of the
accused persons with the deceased as co-villagers, this
Court is of the considered view that the assessment of
evidence by the learned trial court and imposing of
sentence cannot be said to be perverse as alleged so as
to warrant interference in the appeal preferred by the
State.
12. On a conspectus of the evidence on record, it is
evident that the Appellants assaulted the deceased by
means of Axe having full knowledge that by their act
they might cause death of the deceased. This Court is
of the considered view that there is no infirmity in theGA No.21 of 1999& CRA No.217 of 1998 Page 18 of 19
impugned judgment and the conviction and sentence
imposed on the Appellants warranting interference in
the CRLA at the behest of the accused.
13. However, keeping in view the disability of
Appellant No.2-Prabhakar Bisoi and the period of
detention already undergone by the said
Appellant/Convict pre and post conviction stage, this
Court is of the considered view that reduction of
sentence to the period already undergone by the
Appellant No.2 would subserve the ends of justice and
the sentence is modified to that extent.
14. In the result CRA No.217/1998 is partly allowed
and G.A. No.21/1999 is dismissed. Bail bonds of
Appellant No.2 stand cancelled.
(V. Narasingh)
Judge
K.R. Mohapatra, J : I agree.
K.R. Mohapatra
Judge
Signature Not Verified
Digitally Signed
Signed by: PRADEEP KUMAROrissa SWAINHigh Court, Cuttack
Reason: Authentication
Dated
Location: Orissa High Court, Cuttack the 04.03.2025/Pradeep
Date: 05-Mar-2025 13:58:13
GA No.21 of 1999& CRA No.217 of 1998 Page 19 of 19
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