Orissa High Court
Prafulla Kumar Dehury And Ors vs State Of Odisha on 19 March, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.222 of 2001
(From the judgment and order dated 17.10.2001
passed by learned 2nd Addl. Sessions Judge,
Cuttack in S.T Case No.1 of 221 of 2000)
Prafulla Kumar Dehury and Ors. ... Appellants
-versus-
State of Odisha ... Respondent
Advocates appeared in the case through hybrid mode:
For Appellants : Mr. B.B.Routray,
Advocate
-versus-
For Respondent
: Ms. Subhalaxmi Devi,
A.S.C.
---------------------------------------------------------------------------
CORAM:
THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA
____________________________________________________________
Date of hearing-10.03.2026 Date of Judgment-19.03.2026
Sashikanta Mishra,J. The appellants faced trial for
murder in S.T. Case No. 221 of 2000 in the Court of
CRA No. 222 of 2001 Page 1 of 21
learned Second Additional Sessions Judge, Cuttack and
were convicted under Sections 302/34 of IPC and
sentenced to imprisonment for life. Be it noted that another
person namely, Bimala Dehury also faced trial in the
connected case, being S.T. Case No. 442 of 2000 but by the
same judgment, she was acquitted.
2. Prosecution case, briefly stated, is as follows:
The occurrence took place on 27.01.1999 at 7 a.m. in
village Nuasolabandha. It so happened that on the previous
night around 8 p.m., there was pelting of stones on the
house of the informant Sabar Nayak. The identity of
culprits could not be ascertained. On the next morning at
about 7 a.m., while Sabar Nayak, his nephew Jeevan
Nayak (deceased) and several villagers were discussing
about the stone-pelting incident, accused Prafulla Kumar
Dehury (appellant No. 1) suddenly rushed to the spot
holding an axe and assaulted the deceased with it, causing
grievous injury on his head. As a result, the deceased lost
consciousness. After attending to the deceased, the
informant went to Kanpur Police Station and submitted a
CRA. No.222 of 2001 Page 2 of 21
written report. Basing on such report, P.S. Case No. 4 of
1999 was registered under Sections 341/307/506 IPC
followed by investigation. In course of investigation, the
deceased, who was referred to Cuttack for treatment,
succumbed to the injury. As such, the case turned to
Section 302 of IPC. Upon completion of investigation,
charge-sheet was submitted against all the three
appellants.
3. The defence, apart from taking the plea of denial, took
the specific stand that the deceased had assaulted accused
Prafulla and fell down on rocks while running away,
resulting in injury on his head. The appellants were falsely
implicated.
4. To prove its case, prosecution examined 7 witnesses
and proved 11 documents and 3 material objects. On the
other hand, defence examined 2 witnesses and exhibited 3
documents.
5. The trial Court, after analyzing the evidence on
record, found that the prosecution case was well-
established against the accused persons. Relying on the
Page 3 of 21
CRA No. 222 of 2001
evidence of P.Ws.1, 2 and 3 along with medical evidence,
the trial Court held that it was amply proved that accused
Pratap and accused Pankaj caught hold of the deceased
while accused Prafulla dealt a Tangia blow on his head,
which ultimately led to his death. The trial Court
disbelieved the defence evidence on the ground that even if
it was accepted, it only proves that any injury sustained by
the accused would have arisen during the occurrence. The
trial Court, however, did not find any evidence to prove the
prosecution allegation that accused Bimala had instigated
Prafulla to assault the deceased. Thus, while acquitting
Bimala, the trial Court convicted the other three accused
persons and sentenced them as already stated
hereinbefore.
6. Heard Mr. B.B.Routray, learned counsel for the
appellants and Ms. Subhalaxmi Devi, learned ASC for the
State.
7. Mr. Routray assails the impugned judgment on the
following grounds:
CRA. No.222 of 2001 Page 4 of 21
(i) Though it is stated by the prosecution witnesses
that there was a huge gathering, yet no one came
forward to prevent appellant No.1 from assaulting
the deceased as alleged, which is not believable.
(ii) P.W. 2 admitted that by the time he rushed to
the spot the assault was already over and
therefore, he could not have been treated as an
eye-witness.
(iii) Though the witnesses stated that a Tangia was
used to commit the offence, yet a Farsa was sent
for examination by the doctor.
(iv)There was a counter-case against the deceased
and one Tuku Rana which suggests false
implication in the present case.
(v) The names of accused Pratap and Pankaj do not
find place in the FIR or in the first 161 statement of
the informant, which shows that they were
subsequently implicated after due deliberation.
(vi) The occurrence took place because of quarrel
between the parties and therefore, cannot be
Page 5 of 21
CRA No. 222 of 2001
treated as 'murder' within the meaning of Section
300 of IPC.
8. Per contra, Ms. Subhalxmi Devi would submit that
P.Ws.1, 2 and 3 clearly stated that they had seen the
occurrence being present nearby and described it vividly.
Their evidence remained unshaken in cross examination.
The ocular evidence is fully corroborated by medical
evidence. Even assuming that there was a tussle, accused
Prafulla was not a party to the same and therefore, the
benefit of Exceptions 1 and 4 of Section 300 cannot be
given to him.
9. We have given our anxious consideration to the rival
contentions and have also analysed the evidence on record.
It is seen that there are three eye-witnesses to the
occurrence-P.Ws.1, 2 and 3. All of them have unequivocally
stated that on the date of occurrence in the morning, when
the deceased asked accused Pankaj about the pelting of
stones, he admitted and threatened to do so also in future.
This was followed by a tussle between the deceased and
CRA. No.222 of 2001 Page 6 of 21
accused Pratap, who gave the deceased 2 to 4 slabs. At
that time, accused Prafulla, who was standing nearby with
a Tangia rushed towards the deceased and dealt a blow on
the left side of his head. All these witnesses were cross-
examined at length but nothing was elicited thereby to
discredit their version. It is further borne out from the
evidence that the deceased first received treatment at
Kanpur Hospital, where his injury was dressed up and he
was referred to Sub-divisional hospital, Athgarh. He was
further referred to Cuttack for treatment, where he
succumbed. The autopsy surgeon found a cut injury on the
left side of head along with other injuries over the body. He
opined that the cause of death was due to cranio-cerebral
injury. He also opined that the injury to the head would
have been caused by the weapon produced before him
(M.O.1). The above, in short, is the prosecution case
against the accused persons.
10. Having observed as above, we shall now proceed to
consider the rival contentions listed hereinbefore.
Page 7 of 21
CRA No. 222 of 2001
It is argued that there was a huge gathering during the
assault but no one came forward to prevent the
occurrence, for which the prosecution eye-witness
accounts should be disbelieved. We do not agree for the
reason that the occurrence appears to have taken place
within a short period of about 5 minutes as per the version
of P.W. 2 . Others may not have had the time to react. Even
otherwise, accused Prafulla being armed with Tangia and
in an apparently belligerent mood, no one would also have
dared to come forward out of fear. Only for such reason
therefore, the eye-witness accounts cannot be brushed
aside.
11. As regards the possibility of P.W. 2 having seen the
occurrence, we find that he clearly stated that at the
relevant time when he was cleaning his teeth in front of his
house, one Kalinga Nayak, accused Pankaj and accused
Pratap and others were warming their bodies while sitting
around a fire. The deceased arrived there and enquired
from the above-named persons as to who pelted stones on
the previous night. To this, accused Pankaj threatened of
CRA. No.222 of 2001 Page 8 of 21
committing graver offences in future and accused Pratap
gave 3 to 4 slaps to the deceased. Accused Prafulla then
took a Tangi and rushed towards the deceased and
assaulted him.
In cross-examination, he reiterated that he was
brushing his teeth at the time of occurrence and that the
assault took place within 5 minutes. He stated that by the
time he rushed to the spot, the assault was already over.
We have referred to the spot map marked Exhibit-9. We
find that the spot is on the road in Nuasolabandha village,
which consists of rows of houses on both sides. The names
of all the 14 house owners have been specifically
mentioned in Exhibit-9. Significantly, the house of P.W. 2
(Gobardhan Nayak ) does not find place in his said list. So
his statement that he was brushing his teeth in front of his
house becomes doubtful and that his house was about 15
to 20 cubits away from where the deceased was assaulted
also becomes doubtful. In such a situation, it is difficult to
treat P.W. 2 as an eye witness.
Page 9 of 21
CRA No. 222 of 2001
12. It has been urged that there is confusion as regards
the exact weapon used. According to the witnesses, a
Tangia was used but no Tangia was recovered, rather a
Farsa and sent to the medical officer for his opinion. The
opinion of the medical officer is marked Exhibit-4. Perusal
of Exhibit-4 reveals that the doctor has described the
weapon as 'Tangia (Farsa)' and has also mentioned its
dimensions.
It is argued that the weapon of offence seized by the
I.O. and proved in the Court as M.O.1 is a Farsa, whereas
according to the witnesses, the accused used a Tangia to
assault the deceased. Reading of the evidence of the
witnesses shows that none of them has stated about any
Farsa being used. The I.O. (P.W.7) describes the M.O.1 as
Tangia in Exhibit-6. The seizure list also mentions the
weapon as Tangia. Though there is some discrepancy in
this regard, yet we are not inclined to place much
importance on the same because the dimension of the
weapon has been described in Exhibit-6. That apart, the
Doctor (P.W.5) described the weapon in his opinion vide
CRA. No.222 of 2001 Page 10 of 21
Exhibit-4 as 'Tangia (Farsa)'. It is common knowledge that
both Taniga and Farsa are sharp cutting weapons though
the length of the handle and that of the blade may differ.
Even accepting the defence argument as above, it will not
take away the evidence of assault by a sharp cutting
weapon like Tangia/Farsa.
13. It is next argued that the occurrence had been arisen
out of a quarrel wherein both parties were engaged in
assaulting each other, which is evidenced by the fact that a
counter-case was lodged against the deceased and his
associate. Therefore, the trial Court could not have
brushed aside the same. It is also urged that the trial
Court committed manifest error in completely discarding
the defence evidence.
After going through the evidence, we find considerable
force in the above contention inasmuch as the I.O. (P.W.7)
admitted in cross-examination that Kanpur P.S. Case No. 5
/1999 is a counter to this case, where FIR was lodged on
27.01.1999 at 9.45 a.m. and that Jiban Nayak (deceased)
and Tuku Rana are the accused persons. Pankaj Dehury
Page 11 of 21
CRA No. 222 of 2001
(appellant No.2) is the complainant in the said case. He
also admitted that accused Prafulla Dehury was sent for
medical examination in the said case and was referred to
SCB Medical College by the Medical Officer at Kanpur PHC.
It is significant note the further admission of the I.O. that
he did not collect the injury certificate of Prafulla Dehury in
the counter case and could not assign any reason for such
omission.
14. Reading of the impugned judgment reveals that the
trial Court has in fact completely brushed aside the above
evidence by holding as follows:
"Of course, there is no cogent circumstance available
from the materials on record that the deceased had
ever caused any harm to the accused persons for
which a counter case as per the FIR under Ext. B
could be lodged. It is quite apparent and possible that
the accused persons in order to get rid of the rigours
of the present case, they have filed counter case to
save their skin. Even if there was any injury on the
person of any of the accused persons, the same can
be explained to have been caused during the course
of occurrence where there was tussle between the
accused persons and the deceased.
Therefore, the evidence of the defence witnesses (D.W
1 & 2) cannot be accepted to be true in view of the
material evidence even though they state that the
deceased died being fallen on a boulder. That part,
the documentary evidence in Exts. A, B and C also do
not help the defence in any manner whatsoever, to
prove the innocence of the accused persons."
CRA. No.222 of 2001 Page 12 of 21
The defence has examined two witnesses who have also
stated about the counter case.
15. It is trite law that defence evidence is to be
appreciated on the principle of preponderance of
probability and not on the strict parameters of beyond
reasonable doubt. The Court has to see if a plausible
defence has been made out or not. From the reasoning of
the trial Court as extracted hereinbefore, it can be seen
that the trial Court has discarded the defence evidence on
surmises and conjectures without citing any cogent reason
for not accepting the same. It is not a question of proving
the innocence of the accused persons beyond doubt, but
whether a plausible defence is set up or not. Therefore, the
documents marked Exhibits A, B and C assume
importance in consideration of the defence plea that the
occurrence had arisen out of a mutual fight. This changes
the whole scenario. We are therefore of the view that the
trial Court committed manifest error in not placing due
Page 13 of 21
CRA No. 222 of 2001
importance on the evidence relating to the counter case
wherein accused Prafulla was also injured.
16. Now, coming to the most important ground that the
prosecution story, as laid, is an exaggerated version of
what exactly transpired, we find that the FIR was lodged by
P.W.1 on 27.01.1999 at 9.15 a.m. He named only accused
Prafulla Dehury as having assaulted the deceased by
means of a Taniga. The names of the other two accused
persons are conspicuously absent. P.W.1 was examined by
the I.O. on 28.01.1999 and his statement was recorded
under Section 161 of Cr.P.C., which is on the next date of
the occurrence. Though he referred to the altercation
between the deceased and accused Pankaj and accused
Pratap, he specifically named only Prafulla Dehury as
having assaulted the deceased by means of a Tangia. Even
in the FIR, he did not whisper a word about the
involvement of accused Pratap and accused Pankaj. While
deposing in the Court however, he improved upon his
original version. Defence has tried to take mileage of this
apparent improvement in the version of the informant. We
CRA. No.222 of 2001 Page 14 of 21
find considerable force in the defence argument. This is a
case where the informant lodged FIR in writing himself
claiming to be an eye witnesses. There is no reason why he
would not mention the names of all persons involved in the
occurrence but name only one of them. In his initial
statement recorded under Section 161 of Cr.P.C. also, he
did not name the other two accused persons. Defence,
while cross-examining him, drew his attention to such
omission, but he denied. The I.O. however, admitted in his
cross-examination about such omission. This raise a
reasonable doubt. While we agree with the contention
raised by the State counsel that FIR is not supposed to be
an encyclopedia, yet it is settled law that omission of
important facts affecting the probabilities of the case is
relevant under Section 11 of the Evidence Act in judging
the veracity of the prosecution case. This was held by the
Supreme Court in the case of Ram Kumar Pandey v.
State of M.P.1, wherein the following observations would
be relevant:
1
(1975) 3 SCC 815
Page 15 of 21
CRA No. 222 of 2001
"9. No doubt, an FIR is a previous statement which
can, strictly speaking, be only used to corroborate or
contradict the maker of it. But, in this case, it had
been made by the father of the murdered boy to
whom all the important facts of the occurrence, so far
as they were known up to 9-15 p.m. on March 23,
1970, were bound to have been communicated. If his
daughers had seen the appellant inflicting a blow on
Harbinder Singh, the father would certainly have
mentioned it in the FIR We think that omissions of
such important facts, affecting the probabilities of the
case, are relevant under Section 11 of the Evidence
Act in judging the veracity of the prosecution case."
17. In the case of Anmol Singh v. Asharfi Ram & Ors.2,
the Supreme Court upheld the acquittal of the accused
persons on a similar ground that the version in the FIR
was different from the version given in the Court. The
above omission assumes significance in the present context
because as stated earlier, the occurrence arose out of
mutual quarrel involving both parties. Therefore, in the
absence of a cogent explanation being offered regarding the
omission to name all the accused persons at the first
instance, their subsequent implication becomes doubtful
and difficult to accept.
18. Having thus dealt with the grounds of challenge to the
impugned judgment as raised by the defence, we shall now
2
1998 SCC (Cri) 369
CRA. No.222 of 2001 Page 16 of 21
proceed to deal with the ultimate finding of the Court
regarding guilt of the accused persons. As stated earlier,
there is acceptable evidence of a counter-case being lodged
at the instance of the accused persons against the
deceased and also some evidence of accused Prafulla
having received injury. This lends considerable weight to
the supposition that the parties assulted each other in
course of a mutual quarrel/altercation.
The genesis of the dispute seems to lie in the incident
of pelting of stones at the house of the informant on the
previous night. There is nothing in the evidence to show
that accused Prafulla harbored any ill-will against the
deceased prior to the occurrence. We accept the evidence
that in course of altercation between the deceased and the
other two accused persons, accused Prafulla suddenly
rushed towards the deceased and assaulted him by means
of an axe causing injury which ultimately led to his death.
The assault was obviously not pre-planned but arose
suddenly in the heat of the moment. However, fact remains
that he assaulted the deceased with the axe on his head
Page 17 of 21
CRA No. 222 of 2001
causing a cut injury grievous enough to kill him. This
shows his intention to cause bodily injury sufficient to
cause death along with knowledge of the same. Exception 4
to Section 300 reads as follows:
"Exception 4.--Culpable homicide is not
murder if it is committed without
premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without
the offender's having taken undue advantage
or acted in a cruel or unusual manner."
We are convinced that the case squarely falls under
Exception- 4. We do not accept the prosecution argument
in this regard. In the case of Gurmukh Singh v. State of
Haryana3, the Supreme Court held as follows;
"23. These are some factors which are required to be
taken into consideration before awarding appropriate
sentence to the accused. These factors are only
illustrative in character and not exhaustive. Each
case has to be seen from its special perspective. The
relevant factors are as under:
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur
of the moment;
(c) The intention/knowledge of the accused while
inflicting the blow or injury;
(d) Whether the death ensued instantaneously or the
victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the
accused;
3
(2009) 15 SCC 635
CRA. No.222 of 2001 Page 18 of 21
(g) Whether the injury was caused without
premeditation in a sudden fight;
(h) The nature and size of weapon used for inflicting
the injury and the force with which the blow was
inflicted;
(i) The criminal background and adverse history of the
accused;
(j) Whether the injury inflicted was not sufficient in the
ordinary course of nature to cause death but the
death was because of shock;
(k) Number of other criminal cases pending against
the accused;
(l) Incident occurred within the family members or
close relations;
(m) The conduct and behaviour of the accused after
the incident. Whether the accused had taken the
injured/the deceased to the hospital immediately to
ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into
consideration while granting an appropriate sentence
to the accused."
19. From what has been narrated above, we are unable to
persuade ourselves to treat the act of accused Prafulla as
murder, rather it would be a case of culpable homicide not
amounting to murder punishable under Section 304 Part 1
of IPC. As regards the conviction of the other accused
persons, we hold that there being evidence of improvement
in the prosecution case to implicate them, their conviction
cannot be sustained.
20. From the conspectus of the analysis of evidence,
contentions raised and the discussion made, we hold that
Page 19 of 21
CRA No. 222 of 2001
the impugned judgment warrants interference by way of
modifying the conviction of accused Prafulla from murder
to culpable homicide not amounting to murder. We further
hold that the conviction of accused Pratap and accused
Pankaj cannot be sustained and is therefore, set aside to
such extent.
21. In the result the appeal is allowed in part. The
impugned judgment is modified in the following manner:
i) Accused Pankaj and accused Pratap are held not guilty
and are therefore, acquitted of the charges. They being on
bail, their bail bonds be discharged.
ii) Accused Prafulla is held guilty of commiting culpable
homicide not amounting to murder and is therefore,
convicted under Section 304 Part 1 IPC. The incident
occurred in the year 1999, that is, 26 years ago and arose
out of a mutual assault wherein the accused also
sustained some injury. He was in custody for some period
during trial. We are therefore of the view that ends of
justice would be best served if he is sentenced to 7 years
rigorous imprisonment with the usual set-off. His bail
CRA. No.222 of 2001 Page 20 of 21
bonds stands cancelled and he shall be taken into custody
forthwith to serve the remaining part of the sentence, if
any.
..........................................
Sashikanta Mishra, J.
Manash Ranjan Pathak, J. I agree.
........................................... (Manash Ranjan Pathak,J.) High Court of Orissa, Cuttack.
Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 19-Mar-2026 14:20:42 Page 21 of 21 CRA No. 222 of 2001