Orissa High Court
From Judgment And Order Dated ... vs State Of Orissa on 18 July, 2019
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO. 32 Of 2015
From judgment and order dated 09.03.2015/10.03.2015 passed
by the Addl. Sessions Judge, Koraput in Criminal Trial No. 223 of
2013.
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Dhana Jani ........ Appellant
-Versus-
State of Orissa ........ Respondent
For Appellant: - Mr. Soumitra Mohanty
For Respondent: - Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing & Judgment: 18.07.2019
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S. K. SAHOO, J. The appellant Dhana Jani faced trial in the Court of
learned Addl. Sessions Judge, Koraput in Criminal Trial No.223 of
2013 for the offence punishable under section 302 of the Indian
Penal Code for committing murder of Braja Paraja (hereafter 'the
deceased') on 09.09.2013 in village Nariaguda under Koraput
Sadar Police Station.
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The appellant was acquitted of the charge under
section 302 of the Indian Penal Code, however, he was found
guilty of the offence punishable under section 304 Part-I of the
Indian Penal Code and accordingly, the learned trial Court
convicted him of such offence and sentenced him to undergo
rigorous imprisonment for a period of ten years and to pay a fine
of Rs.10,000/- (rupees ten thousand), in default, to undergo
rigorous imprisonment for one year.
2. The prosecution case, as per the first information
report lodged by Bhakta Paraja (P.W.1), who is the brother of
the deceased, before the Inspector-in-charge, Koraput Sadar
Police Station is that on 09.09.2013 at about 12.15 p.m. the
deceased Braja Paraja was sitting on the verandah of his sister
Lilabati Kirsani (P.W.10) and the informant (P.W.1) was in his
house. At that time, the appellant was found chasing his wife
holding a tangia to assault but the latter managed to escape
from the spot. On seeing such incident, the deceased asked the
appellant as to why he was chasing his wife. On this, the
appellant being enraged, abused the deceased in filthy language
and challenged him for interfering and suddenly assaulted the
deceased by means of the tangia on his neck. Due to such
assault, the deceased died at the spot. The appellant was
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captured by the villagers and on being confronted, he confessed
his guilt and told that on being infuriated, he killed the deceased.
As per the F.I.R., the said incident was seen by Daimati Paraja
(P.W.9), Lilabati Kirsani (P.W.10), Bhima Muduli (P.W.11),
Tulasa Muduli and others.
3. The Inspector-in-charge of Koraput Sadar Police
Station on receipt of the written report from P.W.1 registered
Koraput Sadar P.S. Case No.61 of 2013 under section 302 of the
Indian Penal Code and directed Smt. Pramila Suna (P.W.14),
Sub-Inspector of Police to investigate into the matter. During
course of investigation, P.W.14 examined the informant,
recorded the statements of the witnesses, visited the spot and
prepared spot map (Ext.10), conducted inquest over the dead
body and prepared inquest report (Ext.1) and dispatched the
dead body for post mortem examination to District Headquarters
Hospital, Koraput, seized blood stained earth and sample earth
from the spot and prepared seizure list (Ext.5), seized one plastic
rope under seizure list (Ext.3). The appellant was arrested on
09.09.2013 and he confessed his guilt and after his statement
was recorded under section 27 of the Evidence Act, he led the
police party and other witnesses to the place of concealment of
the weapon of offence and accordingly, the axe (M.O.V)
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containing human blood was seized under seizure list (Ext.2).
The wearing banian shirt of the appellant stained with blood was
seized vide seizure list (Ext.4) and the wearing apparels of the
deceased were seized vide seizure list (Ext.8). The material
objects were sent to the R.F.S.L., Berhampur for chemical
analysis and after receipt of the post mortem report and on
completion of investigation, charge sheet was submitted on
11.11.2013 under section 302 of the Indian Penal Code against
the appellant.
4. After submission of charge-sheet, the case was
committed to the Court of Session for trial after observing due
committal procedure where the learned Trial Court charged the
appellant under section 302 of Indian Penal Code on 02.05.2014
and since the appellant refuted that charge, pleaded not guilty
and claimed to be tried, the sessions trial procedure was
resorted to prosecute him and establish his guilt.
5. The prosecution in order to establish its case
examined fourteen witnesses.
P.W.1 Bhakta Paraja, is the younger brother of the
deceased and he is the informant in the case. He stated that the
appellant was chasing his wife to assault her and at that time,
the deceased intervened and asked the appellant as to why he
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was chasing his wife. On this the appellant dealt a blow with an
axe over the neck just below the ear of the deceased, as a result
of which there was profuse bleeding and he died at the spot. He
further stated that the incident took place on the verandah of his
sister Lilabati. He further stated that after the assault, the
appellant tried to flee away from the village but P.W.3 captured
him and tied him on the village road and after the villagers came,
he reported the matter at the police station.
P.W.2 Paradesi Takiri is a co-villager of the informant,
who stated that the appellant assaulted the deceased by means
of a 'tangia' over his neck just below the ear and there was
profuse bleeding and the deceased died at the spot. He also
stated that the accused was chasing his wife to assault her and
at that time the deceased intervened to pacify and also asked the
appellant as to why he was chasing his wife. On this, the
appellant assaulted the deceased. He also stated that when he
and the other co-villagers asked the appellant about the incident,
the later confessed to have assaulted the deceased.
P.W.3 Bhagirathi Takiri is another co-villager of the
informant and a seizure witness, who stated that the appellant
was chasing his wife to assault her and when the deceased
intervened and asked the appellant as to why he was chasing his
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wife, at this juncture without any reason, the appellant assaulted
the deceased with an axe over his neck resulting bleeding injury
and the deceased died at the spot. He also stated that after the
assault when the appellant was running away, he chased him and
caught hold of him and kept him having tied with a rope in front
of his house. On being asked, the appellant confessed to have
assaulted the deceased. He further stated about the seizure of
blood stained axe in his presence on production by the appellant
under seizure list (Ext.2), seizure of one plastic rope from the
possession of the appellant under the seizure list (Ext.3), seizure
of blood stained wearing banian of the appellant under the
seizure list (Ext.4) and seizure of blood stained earth and sample
earth from the spot under the seizure list (Ext.5).
P.W.4 Subarnna Paraja is the widow of the deceased.
She stated that the occurrence took place in front of the house of
Lilabati Kirsani and the appellant assaulted the deceased with an
axe on his neck resulting profuse bleeding injury who died at the
spot. She also stated that when the appellant was chasing his
wife to assault, her husband intervened to protect his wife for
which the appellant assaulted her husband. She also stated that
after assaulting her husband, the appellant tried to run away but
7
P.W.3 brought him and tied with a rope and kept him on the
village road.
P.W.5 Beni Jani is a co-villager of the informant and
an eye witness to the occurrence. He stated that when the
appellant was chasing his wife to assault, at that time the
deceased questioned the appellant as to why he was chasing his
wife. The appellant turned towards the deceased and assaulted
him on his neck by means of an axe, as a result of which he
sustained bleeding injury and ultimately died at the spot. He
further stated that after the assault, the appellant ran away to
his house and P.W.3 brought him and tied him.
P.W.6 Jaya Paraja is the son of the deceased. He
stated that at the time of occurrence, he was in his house and at
about 12.00 noon, the appellant was chasing his wife and at that
time, the deceased was sleeping on the verandah of Lilabati
Kirsani. He further stated that when the deceased asked the
appellant as to why he was chasing his wife, at this the appellant
went to his house and came with a tangia and then assaulted
with the said tangia on the neck of his father resulting cut
bleeding injury and he died there. He further stated that after the
assault, the appellant went to his house, but P.W.3 managed to
tie the appellant with a rope and when the appellant was asked
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about the incident, he confessed his guilt that he killed the
deceased.
P.W.7 is the Medical Officer, D.H.H., Koraput, who
conducted the post mortem examination over the dead body of
the deceased and on examination, he opined that the cause of
death was due to laceration and haemorrhage of deep vessels of
the right side of neck and the injury was caused due to sharp and
heavy weapon. He proved the report vide Ext.6.
P.W.8 Daimati Majhi is a co-villager of the informant
as well as the deceased. She stated that the incident took place
on a Ganesh Puja day but she did not know how the deceased
died. She was declared hostile by the prosecution and cross
examined.
P.W.9 Daimati Paraja is the wife of the informant
(P.W.1). She stated that while the deceased was sitting on the
verandah of Lilabati Kirsani, at that time the appellant was
chasing his wife. She further stated that when the deceased
intervened and asked the appellant as to why he was chasing his
wife, the appellant assaulted the deceased with a tangia over his
neck resulting his death at the spot. She further stated while the
appellant was running away, P.W.3 chased and captured him and
tied him with a rope.
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P.W.10 Lilabati Kirsani is the sister of the informant
so also the deceased. She stated that while the deceased was
sitting on the verandah of her house, at that time the appellant
was chasing his wife and when the deceased asked him as to why
he was chasing his wife, he assaulted the deceased with an axe
over his neck, as a result of which, the deceased died at the spot.
P.W.11 Bhima Muduli is a co-villager of the informant.
He stated that after the incident, the appellant fled away to his
house but P.W.3 chased and captured him and in his presence,
P.W.3 asked the appellant the reason of assault on the deceased
to which the deceased confessed his guilt.
P.W.12 K. Sriharsha was the Home Guard attached to
the Koraput Sadar Police Station and he is a witness to the
seizure of nail clippings in two bottles and blood sample being
kept in separate bottle. He is also a seizure witness to the blood
stained white colour printed check shirts and a lungi mixed with
blue and violate colour both being stained with blood vide Ext.8.
P.W.13 G. Haddu Reddy was the constable attached
to the Koraput Sadar Police Station. He is a seizure witness to
the wearing apparels of the appellant so also the wearing
apparels of the deceased vide Exts.7 & 8 respectively.
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P.W.14 Smt. Pramila Suna was the Sub-Inspector of
Police of Koraput Sadar Police Station who is the Investigating
Officer in the case.
The prosecution exhibited sixteen documents. Ext.1 is
the inquest report, Ext.2 is the seizure list relating to seizure of
blood stained axe, Ext.3 is the seizure list relating to seizure of
one plastic rope, Ext.4 is the seizure list relating to seizure of
blood stained wearing banian of the appellant, Ext.5 is the
seizure list relating to seizure of blood smeared earth and sample
earth, Ext.6 is the report of the Medical Officer, Ext.7 is the
seizure list relating to seizure of two separate bottles containing
nail clippings and blood samples, Ext.8 is the seizure list relating
to seizure of wearing apparels and command certificate, Ext.9 is
the F.I.R., Ext.10 is the spot map, Ext.11 is the dead body
challan, Ext.12 is the statement leading to discovery, Ext.13 is
the medical requisition, Ext.14 is the requisition, Ext.15 is the
forwarding report and Ext.16 is the chemical examination report.
The prosecution proved eight material objects. M.O.I
is the printed full shirt, M.O.II is the lungi, M.O.III is the sealed
bottle containing nail clippings, M.O.IV is the bottle containing
dried blood, M.O.V is the blood stained axe, M.O.VI is the round
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neck banian with blood, M.O.VII is the sample earth and M.O.VIII
is the blood stained earth.
6. The defence plea of the appellant was one of denial
and false implication.
7. The learned trial Court, on overall evaluation of the
evidence on record, has been pleased to hold that P.W.3, P.W.5
and P.W.9 claimed to have seen the incident of assault. Though
other witnesses i.e. P.W.1, P.W.2, P.W.4, P.W.6 and P.W.10
deposed about the occurrence in their examination-in-chief but in
the cross examination, they admitted not to have seen the
occurrence and therefore, they are heresy witnesses. The learned
trial Court found the evidence of P.W.3, P.W.5 and P.W.9 to be
reliable and trustworthy. The learned trial Court analysed the
evidence relating to extra judicial confession of the appellant
before the villagers and found the same to be not voluntary one.
The learned trial Court believed the evidence relating to leading
to discovery of the axe at the instance of the appellant and held
that the prosecution successfully proved beyond reasonable
doubt that the appellant was the author of the crime resulting in
the death of the deceased. After holding that the prosecution has
not been able to prove the four clauses of section 300 of the
Indian Penal Code, found that the first exception to section 300
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of the Indian Penal Code is squarely applicable and accordingly,
the appellant was found guilty under section 304 Part-I of the
Indian Penal Code and sentenced thereunder.
8. Mr. Soumitra Mohanty, Advocate was engaged as the
counsel for the appellant to argue the appeal. He was supplied
with the copy of the paper book and given time to prepare the
case. After going through the case records, he placed the
impugned judgment so also the evidence of the witnesses and
contended that the impugned judgment and order of conviction
of the appellant under section 304 Part-I of the Indian Penal
Code is not sustainable in the eye of law and there are several
infirmities in the evidence of the eye witnesses which have been
overlooked by the learned trial Court. While concluding his
argument, it is submitted that the appellant is in judicial custody
since 10.09.2013 and taking into account the surrounding
circumstances under which the offence was alleged to have been
committed and the tribal background of the appellant, the
substantive sentence be reduced to the period already undergone
and the fine amount be waived.
Mr. Prem Kumar Patnaik, learned Additional
Government Advocate, on the other hand submitted that the
learned trial Court has rightly assessed the evidence on record
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and convicted the appellant under section 304 Part-I of the
Indian Penal Code and therefore, the appeal should be dismissed.
9. Now let me analyse how far the prosecution has
established that the death of the deceased Braja Paraja was
homicidal in nature.
In order to establish such aspects, apart from the
inquest report (Ext.1), the prosecution has examined the doctor
(P.W.7) who conducted autopsy over the dead body on
10.09.2013 at District Headquarters Hospital, Koraput. P.W.7 has
stated to have noticed one incised wound biconvex having
dimension 6 cm x 1 cm x 5 cm located about 1 cm below the
right ear lobule, horizontally placed. He found fracture of the
angle of right mandible with laceration of deep vessels of right
side neck. He opined that the cause of death was due to
laceration and haemorrhage of deep vessels of the right side of
neck and according to him, the injury was caused due to sharp
and heavy weapon. He proved his report as Ext.6. In the cross
examination, he has stated that the injury on the deceased is not
possible by falling over fixed pointed stone.
The learned trial Court has discussed about the
nature of death of the deceased with reference to the evidence
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of doctor (P.W.7) and post mortem report (Ext.6) and came to
hold that the death of the deceased was homicidal in nature.
The learned counsel for the appellant has also not
challenged such findings. After perusing the evidence on record,
the post mortem examination report (Ext.6) and the statement
of P.W.7, I am of the humble view that there is no infirmity in
the findings of the learned trial Court regarding the nature of
death of the deceased to be homicidal in nature and accordingly,
I concur with such findings.
10. Adverting the contentions raised by the learned
counsel for the respective parties, it appears that the order of
conviction of the appellant is based mainly relying on the
evidence of three eye witnesses i.e. P.W.3, P.W.5 and P.W.9.
The evidence of P.W.3 Bhagirathi Takiri indicates that
while the appellant was chasing to assault his wife, the deceased
intervened and asked him as to why he was chasing his wife and
at this, the appellant without any reason assaulted the deceased
with an axe over the neck, for which the deceased died at the
spot. In his cross-examination, he stated that the spot was not
visible from his house, however, he admitted that he had not
seen the occurrence of chasing of the appellant to his wife.
Though P.W.3 has been cross examined at length but his
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evidence relating to the assault on the deceased by the appellant
with an axe has remained unchallenged.
The evidence of P.W.5 Beni Jani indicates that the
appellant was chasing his wife to assault and at that time, when
the deceased questioned the appellant as to why he was chasing
his wife, the appellant turned towards the deceased and
assaulted him on his neck with an axe resulting bleeding injury
for which the deceased died at the spot. It has been confronted
to P.W.5 in cross-examination by the defence counsel that he
had not stated before the police that his father-in-law's house is
in village Nariaguda and that he had witnessed the occurrence
and it has been proved through the investigating officer (P.W.14)
that P.W.5 has not stated before her to have seen the
occurrence. Since P.W.5 deposed in Court for the first time as an
eye witness to the occurrence even though he has not stated so
in his statement recorded under section 161 of Cr.P.C., therefore,
the evidence of P.W.5 being an eye witness to the occurrence
cannot be accepted.
Coming to the evidence of P.W.9 Daimati Paraja, who
is the sister-in-law of the deceased, she stated about the assault
on the deceased by the appellant with a tangia over his neck
resulting his death at the spot. In the cross examination, she
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stated that her house is situated in front of the house of Lilabati
Kirsani and while the deceased was sitting on the verandah of
Lilabati Kirsani, he was assaulted by the appellant. Nothing has
been elicited in the cross-examination to disbelieve the evidence
of P.W.9.
Therefore, I am of the humble view that the learned
trial Court has rightly placed reliance on the evidence of P.W.3
Bhagirathi Takiri and P.W.9 Daimati Paraja.
11. Coming to the seizure of the blood stained axe at the
instance of the appellant, the investigating officer (P.W.14) has
stated that she arrested the appellant and recorded his
statement under section 27 of the Evidence Act who led to the
place of concealment of the weapon of offence and produced the
blood stained axe which was seized. The statement of the
appellant has been marked as Ext.1 and the seizure list of the
blood stained axe has been marked as Ext.2. The blood stained
axe has also been marked as M.O.V. P.W.3 and P.W.5 have also
stated about the seizure of the axe and also preparation of
seizure list Ext.2 in which they have put their signatures. Nothing
has been elicited in the cross examination to disbelieve the
evidence relating to leading to discovery of the axe at the
instance of the appellant.
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12. The banian shirt stained with blood was seized from
the appellant under seizure list (Ext.4). The banian of the
appellant, the axe (M.O.V) along with other articles seized during
investigation was sent for chemical examination. The chemical
examination report (Ext.16) indicates that in the banian of the
appellant as well as in the axe, human blood was noticed.
13. Therefore, in view of the evidence of eye witnesses
P.W.3 and P.W.9, post mortem report findings, the seizure of
blood stained axe at the instance of the appellant under section
27 of the Evidence Act and the seizure of blood stained banian of
the appellant, it can be said that the prosecution has successfully
established that the deceased died on account of the axe blow
given by the appellant on his neck.
14. The learned trial Court after analyzing the materials
on record, has held that while the appellant was chasing his wife
holding an axe in order to assault her, the deceased intervened
and asked him as to why he was chasing her and on the heat of
passion, the appellant assaulted the deceased. It was held that
when the appellant was questioned by the deceased, the anger
towards the wife transmigrated towards the deceased for which
he assaulted the deceased. It was further held that in view of the
scenario in which the occurrence has taken place, it can be said
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that the act of assault by the appellant falls within the first
exception to 300 of the Indian Penal Code and therefore, the
case under section 302 of the Indian Penal Code is not proved.
However, the learned trial Court found that the prosecution has
successfully proved the case under section 304 Part-I of the
Indian Penal Code against the appellant.
Section 304 Part-I of the Indian Penal Code applies
where the accused commits culpable homicide not amounting to
murder, if the act by which the death is caused is done with the
intention of causing death, or of causing such bodily injury as is
likely to cause death. Culpable homicide is not murder if it falls
within any of the five exceptions as enumerated under section
300 of the Indian Penal Code. Exception 1 to section 300 of the
Indian Penal Code states that if the offender, whilst deprived of
the power of self control by grave and sudden provocation,
causes the death of the person who gave the provocation or
causes the death of any other person by mistake or accident then
it would be culpable homicide not amounting to murder. Such
exception is however subject to the three provisos which are
enumerated under the exception as firstly, secondly and thirdly.
The explanation under the exception states that whether the
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provocation was grave and sudden enough to prevent the offence
from amounting to murder is a question of fact.
The appellant was chasing to assault his wife holding
an axe. The deceased intervened the appellant and asked him as
to why he was chasing his wife. The tribal persons used to have
volatile sentiments and temper. The possibility of the appellant
losing his self control suddenly on account of interference by the
deceased cannot be ruled out and such interference might have
caused grave and sudden provocation to the appellant. The
appellant seems to have acted in a heat of passion and dealt a
blow by the axe which he was holding at that time on the neck of
the appellant. There was no premeditation to assault the
deceased. However, the part of the body of the deceased where
the assault was made and the impact it caused, shows the
intention on the part of the appellant causing such bodily injury
as is likely to cause death. Therefore, the learned trial Court has
rightly applied Exception 1 to section 300 of the Indian Penal
Code and convicted the appellant under section 304 Part-I of the
Indian Penal Code.
Coming to the quantum of sentence imposed, the
appellant belongs to a tribal area and he is an illiterate person
and he was earning his livelihood by tending cattle of others. The
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financial condition of the petitioner is also very poor and on being
asked, he told to the learned trial Court that he had no means to
engage a counsel to defend his case and accordingly, a State
Defence Counsel was engaged to defend him in the trial. Before
this Court also, on the basis of his petition to the Legal Aid Board
through Jail Superintendent, this appeal has been filed. The
appellant is in judicial custody since 10.09.2013 and therefore,
he has already undergone the substantive sentence of five years
and ten months. In view of the foregoing discussions, while
confirming the order of conviction of the appellant under section
304 Part I of the Indian Penal Code, I reduce the substantive
sentence from R.I. for ten years to R.I. for seven years. Though
an amount of fine of Rs.10,000/- has been imposed by the
learned trial Court and in default of payment of fine, the
appellant has been directed to undergo further rigorous
imprisonment for one year, but taking into account his financial
background and in view of the ratio laid down by the Full Bench
of Allahabad High Court in the case of Sukhdev and others
-Vrs.- State of U.P. reported in 2017(2) Allahabad Criminal
Rulings 1227 wherein it is held that imposition of fine is not
mandatory in addition to substantive sentence even in a case
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under section 302 of the Indian Penal Code, I set aside that part
of the order of the learned trial Court.
Accordingly, the conviction of the appellant under
section 304 Part-I of the Indian Penal Code is upheld, but the
substantive sentence is reduced from rigorous imprisonment for
a period of ten years to rigorous imprisonment for a period of
seven years. The fine amount, which was imposed by the learned
trial Court is set aside.
Before parting with the case, I would like to put on
record my appreciation to Mr. Soumitra Mohanty, the learned
counsel for the appellant for rendering his valuable help and
assistance towards arriving at the decision above mentioned. The
learned counsel for the appellant shall be entitled to his
professional fees which is fixed at Rs.5,000/- (rupees five
thousand only).
Subject to the modification of sentence as above, the
JCRLA is dismissed.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 18th July 2019/PKSahoo/Pravakar/RKM. 22