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, Susanta Page 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 ground Page 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/ 325/323 /307/149 of the Indian Penal Code.
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