Orissa High Court
Abhaya Kumar Nayak vs State Of Odisha on 28 October, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRA No.316 of 2000
An appeal under section 374 Cr.P.C. from the judgment and
order dated 21.09.2000 passed by the 2nd Addl. Sessions Judge,
Cuttack in Sessions Trial No.377 of 1998.
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1. Abhaya Kumar Nayak
2. Akshaya Nayak ....... Appellants
-Versus-
State of Odisha ....... Respondent
For Appellants: - Mr. Sabyasachi Mishra
Advocate
For Respondent: - Mr. Partha Sarathi Nayak
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing and Judgment: 28.10.2025
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By the Bench: The appellants namely, Abhaya Kumar Nayak and
Akshaya Nayak faced trial in the Court of learned 2nd Additional
Sessions Judge, Cuttack in Sessions Trial No.377 of 1998 for
offences punishable under sections 341, 302 and 307 read with
section 34 of the Indian Penal Code (hereinafter 'IPC') on the
accusation that on 21.01.1998 at about 11.00 p.m. at village
Kapileswar Hadisahi under Choudwar Police Station, they
wrongfully restrained Fakir Mallik (hereinafter 'the deceased'),
Sukaranjan Mirdha (P.W.1) and Amal Das (P.W.2) in furtherance
of their common intention, committed murder of the deceased
and also assaulted P.W.1 with an intention to commit his murder.
The learned trial Court vide impugned judgment and
order dated 21.09.2000, though acquitted the Appellants of the
charge under section 341/34 of the IPC and also the Appellant
No.1 Abhaya Kumar Nayak of the charge under section 307 of
the IPC, but found both the Appellants guilty under section
302/34 of the IPC. The Appellant No.2 Akshaya Nayak was found
guilty under section 307 of the IPC. Both the Appellants were
sentenced to undergo imprisonment for life under section 302/34
of IPC and the Appellant No.2 Akshaya Nayak was sentenced to
undergo R.I. for seven years for the offence under section 307 of
the IPC and the sentences passed against the Appellant No.2
Akshaya Nayak were directed to run concurrently.
CRLA No.316 of 2000 Page 2 of 33
Prosecution Case:
2. The prosecution case, as per the first information
report (hereinafter 'F.I.R.') lodged by P.W.9 Sailen Mallik, in
short, is that on 28.01.1998 at about 11.00 p.m., P.W.9 received
message from his younger brother Rabin Mallik (P.W.11) that
while the deceased was coming with P.Ws.1 and 2, near village
Hadisahi, both the Appellants assaulted them by means of lathi.
Receiving such message, P.W.9 rushed to the spot and found the
deceased as well as P.W.1 was in bleeding condition. He sent
them to the hospital and thereafter came to Choudwar P.S. and
lodged the F.I.R., on the basis of which Choudwar P.S. Case
No.16 dated 28.01.1998 was registered under sections
341/325/307/34 of the IPC against both the Appellants.
P.W.13 Akuli Chandra Patra who was the S.I. of
Police attached to Choudwar P.S., on the direction of the Officer-
in-charge of the P.S., took up investigation of the case. During
course of investigation, he examined the informant, proceeded to
the spot i.e. Kapileswar Sweeper Colony Chowk, prepared the
spot map, examined some witnesses, seized blood-stained earth
and sample earth from the spot under seizure list Ext.1/1. He
searched the house of the Appellants and recovered some
photographs of the Appellants which were seized under seizure
CRLA No.316 of 2000 Page 3 of 33
list Ext.2/1. He received information from Mangalabag P.S. about
the death of the deceased while he was undergoing treatment at
S.C.B. Medical College & Hospital, Cuttack and proceeded to the
Medical College. The I.O. seized the blood-stained clothes of
P.W.1 at Medical College, while undergoing treatment as per
seizure list Ext.11 and also examined P.W.1 and issued injury
requisition in respect of the injured (P.W.1). On 31.01.1998, the
I.O. arrested both the Appellants. While in police custody, both
the Appellants led the police to poultry firm at Kapileswar Village
and gave recovery of two bamboo lathies, which were seized
under seizure list Ext.6. The Appellants were also medically
examined and then forwarded to the Court. The I.O. received the
injury report of P.W.1 from the Medical Officer. On 25.04.1998,
he sent the seized incriminating materials to S.F.S.L.,
Bhubaneswar for chemical examination and received the
chemical examination report vide Ext.12. He also received the
post mortem examination report and the inquest report from
Mangalabag P.S., seized the wearing apparels of the Appellants,
which were stained with blood under seizure lists Exts.14 and 15.
On completion of the investigation, on 28.04.1998 he submitted
chargesheet against the Appellants under sections 302, 341,
307/34 of the IPC.
CRLA No.316 of 2000 Page 4 of 33
Framing of charges:
3. After submission of the charge sheet, the case was
committed to the Court of Session upon compliance of the
formalities. The learned trial Court framed charges against both
the Appellants as aforesaid and since the Appellants refuted the
charges, pleaded not guilty and claimed to be tried, the sessions
trial procedure was resorted to prosecute them in order to
establish their guilt.
Prosecution Witnesses, Exhibits & Material Objects:
4. The prosecution, in order to prove its case, examined
as many as thirteen witnesses.
P.W.1 Sukaranjan Mirdha stated that on 28.01.1998,
he along with P.W.2 and the deceased had planned to go for
fishing and had gone to the bazar to purchase betel, pan and
bidi. However, as the weather was not conducive, all the three
returned back towards their Sahi. Near Hadisahi Chhak, the
Appellants suddenly started rebuking them. When he intervened,
there was an exchange of words. The Appellants came being
armed with bamboo lathis, attempted to assault them, but P.W.1
intervened and the Appellants momentarily moved ahead.
Believing the situation had subsided, P.W.1 remained near
Appellant Akshaya, when Appellant Akshaya suddenly struck him
CRLA No.316 of 2000 Page 5 of 33
on the back of the head with a lathi, causing him to fall. The
Appellant Abhaya and his brother attempted to assault him, but
the blows struck the ground as he was lying down. Both the
Appellants then assaulted the deceased with lathis. By that time,
Amal Das (P.W.2) had fallen, having been pushed along with his
cycle. After the assault, the Appellants fled away. The deceased
sustained bleeding injuries and became unconscious. Amal Das
(P.W.2) went to inform the family members of the deceased,
who soon arrived at the spot. The injured persons were first
taken to Anwar Khan Private Medical at Choudwar, where the
doctors advised for immediate shifting of the injured to Cuttack.
Owing to the seriousness of the condition of the deceased, he
and the deceased were taken to S.C.B. Medical College and
Hospital in the early morning, where the deceased succumbed to
the injuries.
P.W.2 Amal Das stated that the Appellants assaulted
the deceased resulting in his death. The incident took place near
Hadisahi Chhak at Nuasahi, while he, P.W.1 and the deceased
were returning from Tarini Chhak Bazar. They had planned to go
for fishing and had gone to the market to purchase betel, pan
and cigarettes, but cancelled the plan for fishing due to cold
weather. They were returning on two cycles. At the Chhak, they
CRLA No.316 of 2000 Page 6 of 33
saw a quarrel involving Sukaranjan (P.W.1), Biranchi, Kulia and
Basanta. When they approached, the Appellants abused them,
calling them "Jangali-Fangali." A quarrel ensued between
Sukaranjan (P.W.1) and the Appellant Akshaya. As the three
were leaving, Appellant Akshaya struck the deceased on the
head with a bamboo lathi about two cubits long. When the
deceased tried to intervene further, both the Appellants
assaulted him with lathis bringing the same from a nearby place.
During the commotion, the cycles got pushed, causing him to fall
and he became unconscious. On regaining consciousness, he saw
that the Appellants had fled away and both P.W.1 and the
deceased were lying injured. He informed Robin Mallik (P.W.11),
the deceased's younger brother. The injured were taken to
Anwar Khan Medical and then referred to S.C.B. Medical College
and Hospital, where the deceased died early on the next
morning.
P.W.3 Brajabandhu Nayak stated that the police
showed him some photographs and blood-stained earth in the
P.S. and asked him to sign in a paper and he signed.
P.W.4 Dr. Bhubanananda Moharana was the Casualty
Medical Officer of SCB Medical College, Cuttack. He stated that
CRLA No.316 of 2000 Page 7 of 33
on 28.01.1998, he was on duty from 10 a.m. to 8:00 p.m. when
he received the injured Sukaranjan Mirdha (P.W.1) in the
Casualty at 11:35 p.m. on being referred from Jansevak
Hospital, Choudwar with complain of head reeling. He further
stated that the patient was conscious but referred for surgical
intervention by the Jansevak Nursing home and he was kept for
observation in the casualty. He also stated that when the injured
was received in the casualty, he had multiple abrasions on the
face and stitched wound in the occipital region of the head and
he had no head injury. Later on, the police requisition was placed
before him and on the very day, with reference to OPD ticket, he
prepared the injury report marked as Ext.3.
P.W.5 Dr. Akhay Ku. Patra, Blood Bank Medical
Officer, stated that on the requisition of the Professor and Head
of the Department, F.M.T., he collected the blood samples of
Appellant Abhaya Naik and conducted blood grouping. Abhaya's
blood group was found to be B positive, while the other sample
showed AB positive. He prepared the respective reports, marked
as Exts.4 and 5.
P.W.6 Gouranga Charan Jena stated that he knew
the Appellants, who were the residents of his Sahi as well as
CRLA No.316 of 2000 Page 8 of 33
Sailen Mallik (P.W.9), the deceased Fakir Mallik, and the injured
Sukaranjan Mirdha (P.W.1). He deposed that on the day
following the occurrence, the police arrived in their Sahi at about
6:30 p.m. along with both the Appellants. The police questioned
the Appellants about the lathis used in the assault. The
Appellants disclosed that they had used a bamboo lathi and a
wooden lathi, which they had concealed behind their house near
a broiler farm beneath an Amari bush. The Appellants then led
the police to the spot and the Appellant Akshaya produced both
the lathis. P.W.6 identified the lathis. The police seized both
lathis and prepared a seizure list, which P.W.6 signed after
knowing its contents.
P.W.7 Dr. Aktar Hussain Khan stated that his father
had established a Nursing Home at Choudwar known as Jana
Sevak Nursing Home, also referred to as Anwar Babu Hospital.
He was managing the Nursing Home along with others and
routinely attended to patients there. He deposed that on the
relevant day, three to four persons had come to the hospital. He
further explained that whenever they were not in a position to
treat a patient, they would advise the patient to proceed to
S.C.B. Medical College and Hospital.
CRLA No.316 of 2000 Page 9 of 33
P.W.8 Dr. Nirupama Samantaray, the Assistant
Professor of Department of F.M.T., SCB Medical College and
Hospital stated that on 29.01.1998 at 2 p.m., she conducted
P.M. examination over the dead body of Fakir Mallik of
Kapileswar Nuasahi, P.S. Choudwar, the dead body was being
identified by Constable No.142 Loknath Padhi and Salendra
Mallik, brother of the deceased.
P.W.9 Sailen Mallik stated that on 28th January
1998, in between 10:30 and 11:00 p.m., the Appellants
assaulted his brother Fakir, who later died in the hospital. He
stated that around 11:00 p.m., while he was preparing to go to
bed after dinner, his brother Rabin (P.W.11) informed him that
the Appellants had assaulted the deceased and left him near
Hadi Sahi Road. He immediately proceeded to the spot along
with his brothers and several villagers. On arrival, he found the
deceased and Sukaranjan Mirdha (P.W.1) were lying on the
ground with bleeding injuries. He noted that P.W.1 had injuries
on the back of his head but was conscious and able to speak.
The deceased, however, had bleeding injuries on his head and
his right hand appeared fractured; he was unable to speak.
P.W.9 shifted both injured persons on a trolley to Jana Sevak
Nursing Home. Upon the doctor's advice to lodge a report, he
CRLA No.316 of 2000 Page 10 of 33
had the written report scribed by Rajat Kumar Panda of his
village as per his instructions and submitted it at the police
station. The police directed that the injured to be taken to S.C.B.
Medical College and Hospital, Cuttack due to their critical
condition and accordingly both the injured were shifted, but the
deceased succumbed to his injuries on the early morning of
29.01.1998. He further stated that P.W.1 was also admitted at
Cuttack Medical.
P.W.10 Sandhya Mallik, the widow of the deceased
stated that on 29th January 1998, the deceased died and she
further stated that her husband was dealing with fish business;
that she knew Sukaranjan Mirdha (P.W.1), who is the friend of
her husband and was also accompanying her husband to catch
fish. She further stated that on 28th, her husband told her that
he was going to catch fish along with P.W.1; that at about 06.00
p.m. in the evening, her husband went to Choudwar to catch
fish; that on that night at about 11.00 p.m, Robin Mallik
(P.W.11), her brother-in-law came and told that the deceased
was lying near Hadisahi and asked her to accompany him to see,
but she did not go and her elder brother too told her not to go.
CRLA No.316 of 2000 Page 11 of 33
P.W.11 Rabin Mallik stated that the deceased was
elder to him and he knew the Appellants. He further stated that
on 28.01.1998 night at about 10:30 p.m. while he was in his
house, Amal Das (P.W.2) came to his house, called him and told
him that the Appellants were assaulting the deceased near Hadi
Sahi and then he went to his brother Sailen (P.W.9) and
informed that the Appellants were assaulting the deceased near
Hadi Sahi and then he along with neighbours and his brother
went to the place of occurrence and saw the deceased was lying
on the ground with bleeding injury on his back side head and his
hand was fractured and P.W.1 was also lying with bleeding
injuries on his person. He further stated that they took both the
injured in a Trolly to Jana Sevak Nursing Home; that the said
nursing home was also known as Anwar Khan nursing home;
that on arriving at the Nursing Home, the doctor saw the injured
and directed to shift the injured to S.C.B. Medical College and
Hospital; that his brother went to Police to report; that Police
came and on being told by police to shift the injured, they took
both the deceased and injured Sukaranjan (PW.1) to the medical
and in the medical, they were treated and in the early morning,
the deceased died.
CRLA No.316 of 2000 Page 12 of 33
P.W.12 Debraj Bhuyan stated that on 29.01.1998, he
was A.S.I. of Police attached to Medical Out Post, Cuttack and on
that day at 6:00 a.m., the I.I.C. Niranjan Swain received a
casualty report from Dr. Bhuban Moharana (P.W.4) regarding
death of Fakir Mallik; that the IIC registered PS Case No.72/1998
and directed him to take up investigation. He further stated that
on that day at 6:30 A.M., he commanded Constable No.142
Lokanath Barik to guard the dead body and at 11 a.m., he held
inquest over the dead body and prepared inquest report vide
Ext.9.
P.W.13 Akuli Charan Patra is the S.I. of Police
attached to Choudwar Police Station. He stated that on
28.01.1998, the OIC of Choudwar P.S. Sri Saral Kumar Swain
registered the FIR on the written report of Sailen Mallik (P.W.9)
and directed him to take up investigation of the case. He is the
Investigating Officer.
The prosecution exhibited fifteen documents.
Exts.1/1, 2/1, 11, 6, 14, 15 are the seizure lists, Ext.3 is the
injury report, Exts.4 and 5 are the examination of blood report of
the appellants, Ext.7 is the post mortem report, Ext.8 is the
written F.I.R., Ext.9 is the inquest report, Ext.10 is the dead
CRLA No.316 of 2000 Page 13 of 33
body challan, Ext.12 is the chemical examination report and
Ext.13 is the spot map.
The prosecution also proved two material objects.
M.O.I is bamboo lathi and M.O.II is the wooden lathi.
Defence Plea:
5. The defence plea of both the Appellants was one of
denial.
Findings of the Trial Court:
6. The learned trial Court after considering the evidence
of P.W.8, the doctor, who conducted post mortem examination
and proved the P.M. Report vide Ext.7, came to hold that the
deceased met with a homicidal death. The learned trial Court
relied upon the evidence of P.Ws.1 and 2, the eye witnesses to
the occurrence and found that the evidence could not be shaken
in the cross-examination and it got corroboration from the
medical evidence and accordingly, it was held that both the
Appellants were the authors of the crime relating to the death of
the deceased on account of the assault made by them. The Court
further held that the evidence of P.W.11 supported the
prosecution case and the evidence relating to the recovery of
CRLA No.316 of 2000 Page 14 of 33
blood-stained lathis (M.Os.I and II) at the instance of the
Appellants while in police custody has been considered by the
learned trial Court and it was held that the prosecution has
proved its case beyond all reasonable doubt against the
Appellants that they committed the murder of the deceased and
that the Appellant no.2 Akshaya Nayak attempted to commit the
murder of P.W.1 by assaulting him. The learned Court, however,
held that there was no proof of wrongful confinement of the
victim persons by the Appellants so as to attract the provision
under section 341 of the IPC. Though the learned defence
counsel raised a submission regarding the exercise of right of
private defence by the Appellants, who escaped from the attack
by P.W.1, but the learned trial Court held such plea not to be
acceptable. Accordingly, the learned trial Court passed the
impugned judgment holding both the Appellants guilty under
sections 302/34 of IPC so also the Appellant No.2 Akshaya Nayak
guilty under section 307 of the IPC.
7. The written instruction was received from the
Inspector-in-Charge of Choudwar P.S. dated 12.08.2025
regarding the death of the Appellant No.2 Akshaya Nayak. As no
legal heirs of the Appellant No.2 filed any application seeking
leave to continue the Appeal, the Criminal Appeal stood abated
CRLA No.316 of 2000 Page 15 of 33
so far as Appellant No.2 is concerned vide order dated
14.08.2025.
Contentions of the Parties:
8. Mr. Sabyasachi Mishra, learned counsel appearing for
Appellant No.1 Abhaya Kumar Nayak contended that from the
evidence of P.Ws.1 and 2, it appears that there are lot of
contradictions in their version and that the evidence indicates
that there was no premeditation on the part of the Appellants to
assault the deceased, who were the peaceful interveners. When
the deceased intervened and used some language aspersing on
their caste, being enraged, the Appellants assaulted the
deceased. The learned counsel further argued that from the
evidence of P.W.2, it appears that it was Appellant No.2 (dead)
who dealt the fatal blow on the head of the deceased by lathi
and as per the post mortem report proved by P.W.8, the other
injuries are mostly on the non-vital part of the body. He further
argued that since the Appellant no.1 has been acquitted of the
charge under section 307 of IPC and the fatal blow on the
deceased has been attributed against Appellant No.2 (dead),
considering the surrounding circumstances under which the
offence is stated to have been committed, it cannot be said that
the Appellant No.1 intended to commit the murder of the
CRLA No.316 of 2000 Page 16 of 33
deceased and therefore, the case may come within the purview
of culpable homicide not amounting to murder without any
intention and since the Appellant no.1 has remained in judicial
custody for about five years and eight months and he was on
bail by virtue of the order of this Court vide order dated
21.10.2003 and the occurrence has taken place way back in the
year 1998 and more than 27 years have passed in the
meanwhile, considering the role played by the Appellant No.1,
the sentence be reduced to the period already undergone.
Mr. Partha Sarathi Nayak, learned Additional
Government Advocate, on the other hand, supported the
impugned judgment and submitted that the contradictions which
are appearing in the evidence of P.Ws.1 and 2 are minor in
nature and since P.W.1 is an injured witness, his presence at the
spot cannot be doubted and his evidence is getting absolute
corroboration from the medical evidence adduced by P.W.4, who
examined P.W.1 at S.C.B. Medical College and Hospital, Cuttack
so also by the doctor P.W.8, who conducted post mortem
examination and the learned trial Court rightly placed reliance on
the evidence of the two eye witnesses P.Ws.1 and 2, who had
accompanied the deceased at the relevant time and their
evidence has not been shaken in the cross-examination and
CRLA No.316 of 2000 Page 17 of 33
since the deceased was assaulted on the vital part of the body
like head and the doctor has specifically stated that the cause of
death was on account of craniocerebral injuries and it appears
that both the Appellants had participated in the assault of the
deceased and since the death on account of the assault has
taken place in furtherance of the common intention, the
impugned judgment and order of conviction should not be
interfered with.
Whether the deceased died a homicidal death:
9. Before adverting to the contentions of the learned
counsel for the respective parties on other aspects, let us first
examine the evidence on record to see how far the prosecution
has successfully established the death of the deceased to be
homicidal. Apart from the inquest report (Ext.9), the evidence of
P.W.8 Dr. Nirupama Samantaray, Asst. Professor of S.C.B.
Medical College & Hospital, Cuttack is very relevant on this issue,
who conducted post mortem examination over the dead body of
the deceased on 29.01.1998. She noticed the following external
injuries:
"i) Surgically stitched wound over left side
temporoparietal region of the scalp around
CRLA No.316 of 2000 Page 18 of 33
which the scalp hair was shaved, the wound was
7 cms. long with stitches wound, situated 7 cms.
above the root of left ear and was surrounded by
swelling of the scalp over an arms 6 cm. X6 cm.;
ii) Grazed abrasion 5 cm. X3 cm. situated 1
cm. below right eye-brow;
iii) Grazed abrasion 5 cm. X6 cm adjacent to
the right angle of the mouth;
iv) Swellings of left arm with abrased contusion
on the dorsal aspect of the forearms 10 cms.
below the elbow joint of size 4 cm. X1 cm.;
v) Abrasion the ulnar boarder of the wrist 1
cm. X .05 cm.;
vi) Abrasion of the base of left thumb 1 cm. X
1 cm.;
vii) Abrasion of left knee 1 cm. X 1 cm.
On dissection, the following injuries were found:
i) Corresponding external injury no.1, scalp
contusion on the whole of the left temporal and
CRLA No.316 of 2000 Page 19 of 33
parietal, temporal and left occipital region and
extending also to adjacent frontal region with
haematoma formation 1/2 on thick knees. Left
temporalis muscle was contused with blows clots
in it.
ii) Fissure fracture of the skull corresponding 8
cm. on long situation 6 on shove root of the ear.
Membrane found intact. Subdural haematoma on
whole of the left temporal region and extending
to right frontal and adjacent parietal region and
was 1 cm. Brain tissue was lacerated over an
area of 5 cm. X 5 cm. on with surface contusion
in right frontal and temporal lobe, Fracture line
extends the base of the skull in left mid-frontal
fossa.
OPINION:
i) The injuries antemortem in nature should
have been by blunt trauma.
ii) Death was due to coma resulting from the
craniocerebral injuries mentioned above. The
head injury was fatal in ordinary coursed nature.
CRLA No.316 of 2000 Page 20 of 33
iii) Time since death about 6 to 12 hours at the
time of examination.
iv) The patient was admitted to SCB Medical
COPD vide ticket no.0194 dated 18.2.98 for
head injury.
v) The scalp hair and blood sample were
collected and preserved and handed over to
accompanying constable."
P.W.8 opined that all the injuries sustained by the
deceased were antemortem in nature and that the death resulted
from coma caused by craniocerebral injuries, which were
sufficient in the ordinary course of nature to cause death. She
further stated that at the time of examination, the estimated
time of death was between six to twelve hours. In cross-
examination, not a single question has been put to the doctor by
the defence.
The learned counsel for the Appellant has also not
challenged before us regarding the homicidal nature of the
death. In view of the inquest report, the doctor's testimony and
the findings recorded in the post-mortem report, the conclusion
CRLA No.316 of 2000 Page 21 of 33
reached by the trial Court that the deceased died a homicidal
death stands correctly established.
10. The prosecution has examined P.W.1 and P.W.2 as
the eye witnesses to the occurrence.
As per the evidence of P.W.1, on the date of
occurrence, there was a planning to catch fish with P.W.2 and
the deceased and for the said purpose, they had come to the
Bazar to take some articles and since it was a chilly weather,
they cancelled the programme to go for fishing and they were
returning from the Bazar and proceeding to their Sahi. P.W.1
further stated that on the way to their Sahi, near Hadisahi
Chhak, the Appellants came and started abusing for which he
intervened and there was also exchange of words. He further
stated that the Appellant No.1 Abhay went away from the spot
and called his brother Appellant No.2 Akshaya and both of them
came with bamboo and lathi. P.W.1 further stated that when
both of them were trying to assault, he intervened and
thereafter both the Appellants went a little ahead. So, he
thought that they would not create any trouble. He further stated
that while he was standing, Appellant No.2 Akshaya dealt a lathi
blow on the back of his head, as a result of which, he sustained
CRLA No.316 of 2000 Page 22 of 33
injuries and fell down. Thereafter, both the Appellants assaulted
him by lathi. He also stated that the lathi blow did not strike him
as he was lying on the ground and it hit the ground instead.
According to this witness, both the Appellants then assaulted the
deceased and at that time, P.W.2 fell down on the ground and
the Appellants pressed three cycles upon him. After assaulting,
the Appellants fled away from the spot. The deceased was lying
in an unconscious state with bleeding injuries on his person and
P.W.2 went to inform in the house of the deceased for which
some persons came and both P.W.1 and the deceased were
taken to the private medical at Choudwar in a rickshaw and then
they were taken to S.C.B. Medical College and Hospital, Cuttack,
where they were given treatment, but while undergoing
treatment, the deceased expired on 29.01.1998.
In the cross-examination, P.W.1 stated that after
reaching at sweeper colony Chhak, they saw Kalia and Biranchi
of their Sahi and the deceased had exchange of words and when
the Appellant No.1 Abhaya came and intervened and the
deceased was asked as to why he was quarrelling, the deceased
shouted at him saying "Tu Kie Be Third Person" and gave him
two pushes. In the cross-examination, it has been further elicited
that when there was quarrel between the Appellant No.1 Abhaya
CRLA No.316 of 2000 Page 23 of 33
and the deceased for about 10 to 15 minutes, P.W.1 separated
them and the deceased told the Appellant "Hadi Toka Tu Kahinki
Bak Bak Karuchu". The evidence of P.W.1 otherwise has not
been demolished in the cross-examination and P.W.4, the doctor
who examined P.W.1 at causality of S.C.B. Medical College and
Hospital, Cuttack has stated that he noticed multiple abrasions
on the face and there was a stitched wound on the occipital
region of the head and the patient was discharged from the
hospital on 29.01.1998 as there was no head injury. The doctor
has proved the injury report marked as Ext.3 so also the OPD
ticket marked as Ext.3/2. The defence, in cross-examination,
elicited that the injuries on the face were superficial and could be
caused by a fall. However, the testimony of P.W.1 that he was
assaulted at the spot by the Appellants stood corroborated by
the medical evidence of P.W.4. Since the presence of the injured
witness (P.W.1) at the scene of occurrence cannot be doubted,
his testimony which has withstood the scorching cross-
examination, carries a high degree of credibility.
P.W.2 has stated that he along with P.W.1 and the
deceased were returning from Tarini Chhak bazar to their Sahi
and at the Chhak, they found Biranchi, Akuli and Basanta and
P.W.1 were quarrelling with each other and there was push and
CRLA No.316 of 2000 Page 24 of 33
pull between them and the Appellants came there. He further
stated that the Appellant No.2, Akshaya dealt a bamboo blow on
the head of the deceased when he intervened and the Appellants
also pushed him for which he fell down and both the cycles were
lying over him and then the Appellants fled away from the spot.
He further stated to have noticed P.W.1 and the deceased were
lying on the ground and he went to inform the younger brother
of the deceased and that they took the injured persons to the
hospital where the deceased died during treatment.
It has been confronted to P.W.2 and proved through
the I.O. (P.W.13) that he has stated before police that when
Abhaya interfered with the quarrel, the deceased told "Sala Tu
Kie Be Third Person" and gave two blows to Appellant No.1
Abhaya and thereafter Appellant no.1 Abhaya went away from
the spot. It has been further proved that he has not stated
before Police that Appellant Akshaya dealt bamboo blow to P.W.1
and that the deceased intervened at that time and both the
Appellants assaulted him. Though, there are some contradictions
appearing in the evidence of the two witnesses, but we find that
in material particulars, they corroborate each other and
moreover, their evidence that the Appellants participated in the
CRLA No.316 of 2000 Page 25 of 33
assault of the deceased is getting corroboration from the medical
evidence adduced by the doctor (P.W.8).
The learned counsel for the State submitted that the
contradictions are very natural and it is not necessary that the
witnesses would state in a parrot like versions and therefore,
they are very natural witnesses and when they were coming
together, their presence at the scene of occurrence cannot be
doubted. The same has been reiterated by the Hon'ble Supreme
Court in the case of Manoj Suryavanshi -Vrs.- State of
Chhattisgarh reported in (2020) 4 Supreme Court Cases
451, wherein it has held as follows:
"23....The minor discrepancies and
inconsistencies in the statements of the
prosecution witnesses and the minor lacuna in
the investigation led by the police cannot be a
reason for discarding the entire prosecution
case, if the evidence is otherwise sufficient and
inspiring to bring home the guilt of the accused.
24. As observed by this Court in the case
of Leela Ram -Vs.- State of Haryana : AIR
1999 SC 3717, 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. It is further
observed that corroboration of evidence with
mathematical niceties cannot be expected in
CRLA No.316 of 2000 Page 26 of 33
criminal cases. Minor embellishment, there may
be, but variations by reason therefore should
not render the evidence unbelievable. Trivial
discrepancies ought not to obliterate 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. So, 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
of his reaction not falling within a set pattern is
unproductive. Therefore, we are of the opinion
that the so-called minor discrepancies/
contradictions do not ultimately affect the case
of the prosecution. The benefit of such minor
discrepancies/contradictions should not go to
the accused, more particularly, when from the
other evidences on record the guilt of the
accused has been established and proved."
In view of the evidence of P.W.1 and P.W.2, coupled
with the evidence of the doctor (P.W.8), we are of the humble
view that the learned trial Court is quite justified in holding that
the deceased died on account of the assault of the two
Appellants i.e. Appellant no.1 Abhaya Kumar Nayak and
Appellant no.2 Akshaya Kumar Nayak (dead).
11. Now, coming to the sequence of events and the
surrounding circumstances under which the offence is stated to
CRLA No.316 of 2000 Page 27 of 33
have been committed, we find that there was no premeditation
on the part of the Appellants to assault either the deceased or
even to P.W.1. It appears that while there was a quarrel already
underway between some persons including P.W.1 and P.W.2 and
the deceased were present there, the Appellants came there.
They intervened and attempted to pacify the situation, which led
to the deceased challenging them. P.W.1 has stated that the
deceased used words to the Appellants such as "Tu Kie Be Third
Person'', "Hadi Toka, Tu Kahinki Bak Bak Karuchu" and gave two
pushes to the Appellant No.1, which might have provoked the
Appellants and triggered their retaliation. P.W.2 stated that when
they were quarrelling amongst themselves, Appellant No.1
objected and intervened by remaining at a distance of ten cubits
from them and Appellant No.2 was also there with him. It has
been confronted to P.W.2 and proved through the I.O. (P.W.13)
that when the Appellant No.1 interfered in the quarrel, the
deceased stated that "Sala Tu Kie Be Third Person'' and gave two
blows to the Appellant No.1.
It has reiterated in more than one cases right from
K.M. Nanavati -Vs.- State of Maharashtra : AIR 1962 SC
605 onwards that provocation itself is not enough to reduce the
crime from murder to culpable homicide not amounting to
CRLA No.316 of 2000 Page 28 of 33
murder. In order to convert a case of murder to a case of
culpable homicide not amounting to murder, provocation must
me such that would temporarily deprive the power of self-control
of a "reasonable person". What has also to be seen is the time
gap between this alleged provocation and the act of homicide;
the kind of weapon used; the number of blows, etc. These are
again all questions of facts. There is no standard or test as to
what reasonableness should be in these circumstances as this
would again be a question of fact to be determined by a Court.
Nanavati (supra) answers this question as follows:
''84. Is there any standard of a reasonable man
for the application of the doctrine of "grave and
sudden" provocation? No abstract standard of
reasonableness can be laid down. What a
reasonable man will do in certain circumstances
depends upon the customs, manners, way of
life, traditional values etc.; in short, the cultural,
social and emotional background of the society
to which an accused belongs. In our vast
country, there are social groups ranging from
the lowest to the highest state of civilization. It
is neither possible nor desirable to lay down any
standard with precision: it is for the Court to
decide in each case, having regard to the
relevant circumstances. It is not necessary in
this case to ascertain whether a reasonable man
placed in the position of the accused would have
lost his self-control momentarily or even
temporarily when his wife confessed to him of
her illicit intimacy with another, for we are
CRLA No.316 of 2000 Page 29 of 33
satisfied on the evidence that the accused
regained his self-control and killed Ahuja
deliberately.
85. The Indian law, relevant to the present
enquiry, may be stated thus: (1) The test of
"grave and sudden" provocation is whether a
reasonable man, belonging to the same class of
society as the accused, placed in the situation in
which the accused was placed would be so
provoked as to lose his self-control. (2) In India,
words and gestures may also, under certain
circumstances, cause grave and sudden
provocation to an accused so as to bring his act
within the First Exception to Section 300 of the
Indian Penal Code. (3) The mental background
created by the previous act of the victim may be
taken into consideration in ascertaining whether
the subsequent act caused grave and sudden
provocation for committing the offence. (4) The
fatal blow should be clearly traced to the
influence of passion arising from that
provocation and not after the passion had cooled
down by lapse of time, or otherwise giving room
and scope for premeditation and calculation.''
The distinction between Part I and Part II is crucial.
Under section 304 of I.P.C., culpable homicide not amounting to
murder is classified into two parts; Part I applies when the act is
committed with the intention of causing death or such bodily
injury as is likely to cause death. This requires a higher degree of
culpability (guilty intention) and Part II applies when the act is
committed with the knowledge that the act is likely to cause
CRLA No.316 of 2000 Page 30 of 33
death, but without the intention to cause death or such bodily
injury. This requires only awareness of the likely consequences
(guilty knowledge).
Having regard to the relevant circumstances, in
which the altercation unfolded, it appears that the action of the
Appellants were under deprivation of the power of self-control by
grave and sudden provocation. They were the peaceful
intervenors who tried to pacify the dispute, but the deceased
used words such as "Hadi Toka, Tu Kahinki Bak Bak Karuchu",
"Sala Tu Kie Be Third Person'' and given pushes to the Appellant
No.1. Upon consideration of the evidence of P.W.2, it appears
that it was Appellant No.2 Akshaya Kumar Nayak (dead) who
dealt the lathi blow on the head of the deceased, which the
doctor had identified to be the fatal injury. Although there is
evidence that both Appellants continued to assault the deceased
thereafter, but the injuries inflicted subsequently after the first
blow given by the Appellant No.2 on the head, were on the non-
vital parts of the body. As discussed earlier, apart from the fatal
head injury attributable specifically to Appellant No.2 Akshaya
Kumar Nayak (dead), the remaining injuries did not disclose to
be serious ones which contributed to the death of the deceased.
CRLA No.316 of 2000 Page 31 of 33
Having regard to the overall factual matrix, we are of
the considered view that the case falls within Exception 1 to
section 300 of the IPC. Consequently, the offence does not
attract section 302 IPC. The conviction of the Appellant No.1 is
therefore altered from section 302 IPC to section 304 Part I IPC.
12. It further appears that the Appellant No.1 was in
judicial custody for more than five years and eight months and
he was granted bail by this Court vide order dated 21.10.2003.
The occurrence took place approximately twenty-seven years
ago and the Appellant No.2 who inflicted the fatal blow to the
deceased has since dead, by reason of which the appeal against
him stood abated. While altering the conviction of the surviving
Appellant No.1 Abhaya Kumar Nayak to section 304 Part I of IPC,
we sentence him to the period of imprisonment already
undergone.
Accordingly, the Criminal Appeal is allowed in part.
Before parting with the case, we would like to put on
record our appreciation to Mr. Sabyasachi Mishra, the learned
counsel for the Appellant for rendering his valuable help and
assistance towards arriving at the decision above mentioned.
This Court also appreciates the valuable help and assistance
CRLA No.316 of 2000 Page 32 of 33
provided by Mr. Partha Sarathi Nayak, learned Additional
Government Advocate.
The trial Court records along with a copy of the
judgment be sent forthwith to the Court concerned.
.................................
S.K. Sahoo, J.
.................................... Chittaranjan Dash, J.
Orissa High Court, Cuttack The 28th October 2025/AKPradhan/Bijay/Sarbani Signature Not Verified Digitally Signed Signed by: SARBANI DASH Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Nov-2025 13:46:54 CRLA No.316 of 2000 Page 33 of 33