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IN THE COURT OF THE CIVIL JUDGE(SENIOR

DIVISION)­CUM­ASSISTANT SESSIONS JUDGE,
KUJANG.
Present : Sri Abhilash Senapati, B.A., LL.B.
(Hons.),
Civil Judge (Sr.Divn.)­cum­
Asst.Sessions Judge,
Kujang.

C.T. Case No.e­78­2018(156­2017)

(Arising out of Erasama P.S. Case No. 94 of

2016 corresponding to G.R. Case No. 698 of
2016 of learned J.M.F.C.(P), Kujang. )

Date of conclusion of argument : 26.12.2018.

Date of judgment : 10.01.2019

State

Vrs.

1. Deepak Pal aged about 19 years,

S/o. Basanta Pal, Vill. Khuranta Tutha,
P.S. Erasama, Dist. Jagatsinghpur.
2. Arati Pal aged about 72 years,
W/o. Bankim Pal, Vill. Khuranta Tutha,
P.S. Erasama, Dist. Jagatsinghpur.
3. Smt. Jayanti Pal aged about 47 years,
W/o. Basanta Pal, Vill. Khuranta Tutha,
 Page 2 of 69 .

P.S. Erasama, Dist. Jagatsinghpur.

4. Smt. Gita Pradhan aged about 43 years,
S/o. Sudhira Pradhan, Vill. Khuranta
Tutha,
P.S. Erasama, Dist. Jagatsinghpur.
… Accused persons
Status of the accused persons: on bail.

Counsel for the State: Sri S.C.Das, Addl. P.P.

Counsel for the accused persons : Sri Debasnana Das,
D.K.Nayak, T.K.Mohanty, CL M.R.Dalai & Associates.

Offence U/Ss. 294/323/307/354/506/34 of the I.P.C

//JUDGMENT//

The above named accused stands charged

for having committed offences U/s. 294/323/307/354/
506/34 of the Indian Penal Code (hereinafter referred
as I.P.C.)

2. The factual backdrop giving rise to the

prosecutrix allegation of a gruesome attack carried out
upon the informant and her kindred in a nutshell is
that:­
 Page 3 of 69 .

The informant and her husband were both

living a wretched life as they had been diagnosed with
Acquired Immuno Deficiency Syndrome. On 02.08.2016
at about 7 p.m. when the father­in­law of the
informant was sitting in their house, her mother­in­
law Arati Pal, along with other accused persons
namely Jayanti Pal, Basanta Pal, Gita Pradhan and
Sudhir Pradhan came in front of her house and asked

her father­in­law “Tu Kahinki Jauchu Se rogi taku

Chhuinle to dehare roga heba”. Out of the blue, the

accused persons dragged her father­in­law and started

to mercilessly carry onslaught upon him by fist and
kick blows. Her husband seeing the same, could not
help himself from intervening and tried to rescue her
father­in­law. Suddenly Deepak Pal being laced with a
Bhujali, came out and started to pitilessly attack her
husband. He gave a forcible blow with an iron rod on
the head of her husband and also stabbed her husband
with a Bhujali (short sword like weapon) causing
bleeding injury. All the accused persons attacked her
husband and tried to kill him. Accused Deepak Pal
thereafter abused her in obscene languages, dragged
and assaulted her. Seeing their merciless attack
Niranjan came to her rescue. Said Niranjan also
 Page 4 of 69 .

sustained injury caused by the accused persons who

remorselessly attacked him with Bhujali.

Basing on these accusations police took up

investigation vide Ersama P.S. Case No. 94 of 2016
and after completion of investigation submitted final
form against the accused persons U/s. 294/323/307/354/
506/34 of the I.P.C. On receiving the charge sheet
learned J.M.F.C.(P),Kujang took cognizance of the
offences and after observing all formalities committed
the case record to the Hon’ble District and Sessions
Judge, Jagatsinghpur who had subsequently
transferred the case record to this Court for disposal
according to law. Hence this case.

3. The plea of the accused persons were that of

complete denial simplicitor, false implication, for which
trial proceeded against them.

4. The points for determination in this

case are:
(i) Whether on 02.08.2016 at about 7.00 P.M.
at village Khuranta Tutha the accused persons in
furtherance of their common intention abused the
informant in obscene language by saying
 Page 5 of 69 .

‘BEDHA, CHHINDALA’ in or near a public place

causing annoyance to others and thereby
committed offence u/s 294 / 34 of I.P.C?

(ii) Whether on the said date, time and place

the accused persons in furtherance of their
common intention voluntarily caused hurt to the
husband of the informant by means of Bhujali
and thereby committed offence u/s 323 / 34 of
I.P.C?

(iii) Whether on the said date, time and place the

accused persons in furtherance of their common
intention assaulted to the husband of the
informant on his head by means of an iron rod and
stabbed Bhujali on his belly causing bleeding
injury and under such circumstances that if that
act they had caused the death of the said Prasant
Pal they would have been guilty of murder and
thereby committed offence u/s 307 / 34 of I.P.C ?

(iv) Whether on the said date, time and place

the accused persons in furtherance of their
common intention assaulted the husband of the
informant, intending to outrage her modesty and
thereby committed offence u/s 354 / 34 of I.P.C ?

(v) Whether on the said date, time and place

the accused persons in furtherance of their
common intention committed criminal
intimidation by threatening the informant and
her husband with injury to their person with
intent to cause alarm to the said informant and
thereby committed offence u/s 294 / 34 of I.P.C?
 Page 6 of 69 .

5. In order to prove its case, prosecution has

examined nine witnesses and exhibited five documents.
Out of the prosecution witnesses, P.W. 1 (Santilata
Pal) is the informant, P.W. 2(Prasanta Pal) is the
victim and the husband of the informant, P.W.3
(Niranjan Pal) is the niece of both the parties, P.W.4
(Maina Pal & Nayak) is the mother of P.W. 3, P.W.
5(Maheswar Majhi) is an independent witness, P.W. 6
(Bijay Pal) is the father of P.W.3, P.W. 7(Dr. Dillip
Kumar Sagar), P.W.8(Bijay Sutar) is an independent
witness, P.W. 9 (Bibhuti Bhusan Sethy) is the I.O of
this case.

The documents which were marked on

behalf of prosecution are : Ext.1 being the FIR, Ext. 1/1
is the signature of P.W. 1 on Ext. 1. Ext.2 being the X­
Ray report. Ext. 3 is the injury report of Prasant Pal.
Ext. 3/1 is the signature of P.W. 7. Ext. 4 is the injury
report of Nirajan Pal and Ext.4/1 is the signature of
P.W. 1. Ext. 5 is the injury report of Santilata Pal and
ext. 5/1 is the signature of P.W. 7. Ext. 6 is the Formal
FIR. Ext. 6/1 is the endorsement of IIC. Ext. ½ is the
endorsement of IIC. Ext. 5/2 is the Signature of P.W. 9
 Page 7 of 69 .

on Ext. 5. Ext. 3/2 is the signature of P.W. 9 on Ext. 3.

Ext. 4/2 is the signature of P.W. 9 on Ext. 4. Ext. 7 is
the spot map and Ext. 7/1 is the signature of P.W. 9 on
Ext. 7. Ext. A is the injury report of Dr. Amiya and Ext.
A/1 is the signature of Dr. Amiya.

In order to disprove this case, defence has

examined five witnesses and exhibited one document
on their brhalf. Out of the defence witnesses, D.W. 1
(Jayanti Pal) D.W. 2 (Babaji Pradhan), D.W. 3
(Harekrushna Mandal),D.W4 (Gita Prahdan) & D.W. 5
(Dipak Pal). The document marked on behalf of the
defence being Ext. A which is the minutes of village
meeting.

6. Let us now analyze the evidence adduced by

both prosecution and defence in this regard.

P.W. 1 who is the informant in the present

case has in her evidence stated that she knows all the
accused persons i.e. Arati, Gita, Jayanti and Deepak.
The occurrence took place on 02.08.2016 at about 6
p.m.. At that time her father­in­law was sitting in their
house when the accused persons stated to him that “Tu
 Page 8 of 69 .

Semanaka sahita basautha karuchhu semane AIDS

patients”. They then dragged her father­in­law and
started to mercilessly assault him by giving fist and
kick blows. Her husband rushed to intervene but
accused Deepak had assaulted her husband by means
of an iron rod and Bhujali and the rest accused persons
also joined Deepak. Accused Deepak gave a blow on the
head of her husband with the said rod and when her
husband raised both of his hands the accused again
gave a heavy blow on his shoulder. The accused also
stabbed a Bhujali inside the stomach of her husband.
The accused persons also pinned her down removed her
wearing apparels and stated to assault her. Niranjan
came to their rescue but he was also attacked and thus
sustained Bhujali blow on his neck along with assault
with a rod upon his shoulder. In her cross­examination,
she stated that the accused persons are all related to
her. She had not seen any injury in the body of the
accused Deepak. The dispute continued for about half
an hour. Hearing the shouts none of the villagers had
reached at the spot. They stayed in hospital for about 1
to 2 hours. When her husband was being bandaged
Niranjan was hospitalized. Niranjan had sustained a
cut near his ear and injury on his head. At about 7.30
 Page 9 of 69 .

p.m. on the date of occurrence, they had reached at a

nearby Police Station. After being discharged from
hospital he along with her husband had reached at P.S.
She and her husband had their wearing apparels blood
stained when they reached Police station for the second
time. The statement of her husband was not recorded
by the police on the date of occurrence due to his ill
health sustained by the occurence. After filling of FIR
she had returned.

7. P.W. 2 has in his evidence corroborated the

FIR and stated that on 02.08.2016 at about 6 p.m. the
misfortune took place. At that time his father was
sitting inside their house when the accused persons
suddenly appeared before them stating that “Tu ethi
basiparibuni, semanaku ta rogaheichi to kan roga
bansare pureibu”. The accused persons thereafter
dragged his father out, and started to mercilessly
shower blows upon him. On his intervention the
accused persons tried to assault him and suddenly
Deepak being laced with a rod gave a heavy blow on his
head. He also gave a heavy blow with a Bhujali upon
his stomach for which he sustained injury. The accused
persons thereafter assaulted and abused his wife, when
 Page 10 of 69 .

his nephew Niranjan had tried to intervene during the

occurrence for which he was also assaulted. In his
cross­examination he stated that there is no civil suit
in between the parties. As he is a HIV patient his co­
villager do not like him. His co­villagers know about
the entire incident. His head had a cut injury, he had
two other injuries in his stomach due to the unfortunat
occurence. His mother Arati now a widow is also an
accused in the present case. The I.O had seen their
blood stained wearing apparels but had not seized the
same. He was having profused bleeding on the spot.
Due to civil dispute between the warring parties,
village gentlemen have had on many occasions taken
part in their village meeting.

8. P.W.3 has in his evidence corroborated the

FIR and has stated about the occurrence taking place
on 02.08.2016 at about 6 p.m. When he tried to
intervene, the accused Deepak abused him in obscene
languages and then gave a blow with a Bhujali on the
left side of his neck. The accused thereafter gave a blow
with a rod on his hand for which his hand got broken.
In his cross­examination he stated that he was
returning from tuition when he saw the occurrence.
 Page 11 of 69 .

The house of Prasant is about one house away from

their house. He could not say how many houses are
present in their village. Due to severity of the
occurrence, he had rushed to rescue the victim. All the
accused persons are related to him. Deepak first gave
blow on his left hand with an iron rod and another
blow on the left corner of his jaw. He could not say for
how long the occurrence took place. The Bhujali with
which he was attacked was a sharp one. He could not
say about the number of injuries sustained to Deepak.

9. P.W. 4 has in her evidence also corroborated

the FIR and has stated that when she rushed home she
found her son having profused bleeding from his neck.
She then took the victim to medical wherein he was
examined. In her cross­examination she states that she
couldnot say the distance of her house from Paradeep.
She was straightaway asked to take the victim to
hospital. The wearing apparels of the victim were not
seized in the present case. The X­Ray report of broken
hand of Niranjan was prepared on the date of
occurrence. The X­ray report does not show the name of
the patient or the date of examination. She had given
all details in the Police Station.
 Page 12 of 69 .

10. P.W.5, has in his testimony stated that the

occurrence took place three years back. He had seen
Kalia i.e. the husband of Santi lying on the road and
bleeding profusely. The victim was taken to P.S and
thereafter taken to medical. In his cross­examination
he states that his house is less than half kilometer
from the house of the victim. He does not know about
the civil dispute in between the parties. He was driving
his vehicle alone when he reached at the sot. He does
not remember whether the wearing apparels of the
victim were blood stained, but when he reached at the
spot the wife of the victim was sobbing. He took the
informant to the medical. The police had also
accompanied them to the medical.

11. P.W.6 has in his evidence sated that on

02.08.2016 he found his son Niranjan and younger
brother Prasant being injured and being taken to
medical. His father had given some property to
Niranjan and his younger brother for which the
accused persons were assaulting his father. When his
son tried to intervene his son’s hand got broken and
Prasant’s head got injured. In his further cross­
 Page 13 of 69 .

examination he states that he was told by his daughter

about the occurrence. He could not say whether his
father had given any property to Basanta. C.S. No.
298/2016 is pending in which his son is a party. Both
the informant and her husband are AIDS victim and
for the said reason the accused persons have been
mistreating them since five years.

12. P.W. 7 who is a medical officer has in his

evidence stated that he had examined one Prasanta
Pal and had found a single injury over the vertex of his
head. The said injury was simple in nature and in his
opinion was caused by a hard and blunt object. He has
also examined Niranjan Pal and had found a single
injury over the left side of his neck caused by a hard
and blunt weapon and the injury being simple in
nature. He had also examined Santilata Pal and found
no external injury. In his cross­emanation he states
that if Bhujali is stabbed around belly there should be
a sharp cut injury. There should be laceration if an
iron rod is hit over head. None of the injuries were
stitched wounds.
 Page 14 of 69 .

13. P.W. 8 has in his evidence stated that on

the relevant date while he was going to his shop he
found the police near the house of Basanta Pal. The
parties have civil dispute for which many a times the
matter was brought before the village gentlemen but
nothing fruitful could happen. Bijay and Prasant were
both allotted Ac. 0.30 decimals by their father for
which the dispute arose. He had not seen the specific
occurrence. In his cross­examination he states that he
had not stated before police about the daughter of Bijay
threw stones towards Deepak and that due to tussle
both of them fell near a thorny fence sustaining injury
and then Prasant ha d given a bit to Deepak.

14. P.W. 9 who is the I.O in the present case in

his evidence stated that he had examined the
complainant and had issued injury requisition in
favour of Santilata Pal, Prasant Pal and Niranjan Pal.
On 03.08.2016 he had arrested Deepak and forwarded
him to the court. In his cross­examination he states
that the facts about the occurrence were written after
ascertaining the same from the victims. The
complainant had identified to him the spot. There were
no blood stains at the spot. He had not seized any
 Page 15 of 69 .

weapon of offence at the spot, Bankim had denied for

medical examination during his investigation. All the
victims were injured and were draped in their injured
part with bandage. His investigation reveals about
traces of civil dispute in between the parties. Bijay
Sutar is an eye witness to the occurrence. The
daughter of Bijay had thrown stones and both the
parties had quarrel and tussle for which both the
parties fell on a thorny place getting injured and that
Prasant had with his teeth bitten the shoulder of
Deepak. He has not made any query as to how the
injury had caused to the informant. Deepak, Prasant,
Niranjan, Santilata were sent for medical examination
in favour of the injury sustain by them.

15. D.W.1 has in her evidence stated that

Prasant was given 30 decimals of land along with
Niranjan Pal by his father­in­law. The matter was put
in a village meeting where­after they filed a civil suit.
After receiving notices the family of the informant
started quarreling with them and then Prasant gave a
sharp bite with his teeth to Deepak for which he fell
down near a thorny bush. In his cross­examination she
 Page 16 of 69 .

states that the conflict arose owing to landed properties

but on the date of occurrence there was no dispute.

16. D.W.2 in his evidence stated that the

dispute took place due to land disturbance. After filing
of the suit the agitation arose between the parties.
Thereafter no fight happened in between them but only
there was war of words.

17. D.W. 3 has in his evidence stated that he is

a village gentlemen. There was a village meeting with
respect to the dispute between the parties and the
matter was settled. However without agreeing to them,
Bankim went away. The informant and their family
created commotion. There was a fight on the date of
occurrence.

18. D.W. 4 has in her evidence stated that in

their village meeting her father­in­law was asked to
give 30 decimals to them but remained silent. There
was no conflict on the date of occurrence.

19. D.W. 5 has testified that on the date of

occurrence he was coming from Bhubaneswar and got
 Page 17 of 69 .

to know about the same dispute between the parties

originating from a civil case. Half an hour after the
occurrence he came to the spot.

20. This being the above state of evidence, let

us now analyze them in the lens of the alleged offences
with which the accused persons are embroilled.

21. Let us at upfront analyze the offence U/s.

294 of I.P.C. Section 294 of I.P.C. states that:­

“ whoever, to the annoyance of others­

a) does any obscene act in any public place, or
(b) sings, recites, or utters any obscene song,
ballad or words, in or near any public place, shall
be punished with imprisonment of either
description for a term which may extend to three
months, or with fine, or with both.

The essential ingredients of the offence U/s. 294

of IPC are as follows:

(1) The accused committed an obscene act or he

sang or recited or uttered any obscene songs, ballads or
words;
 Page 18 of 69 .

(2) The accused did so in or near any public

place;
(3) Such acts or utterances caused annoyance
to others.

In the present case although the witnesses

have corroborated about the occurrence and have
stated about the accused persons abusing the
informant and her family in obscene languages but
have not stated anything with respect to the place of
occurrence being a public place. To add to it none of the
witnesses have stated about annoyance being caused to
the informant or her husband due to the alleged
obscene action of the accused persons. Keeping into
view the above analysis of evidence, the prosecution
failing to show that the place of occurrence was a
public place and that the alleged actions of the accused
persons created any annoyance, it can be clearly held
that the prosecution has failed to bring home the
allegation leveled against the accused persons U/s.
294/34 of IPC.
 Page 19 of 69 .

Hence, it can be clearly held that offence

U/s. 294/34 of I.P.C. is not attracted and the accused
persons cannot be held guilty thereunder.

22. Coming into the offence U/s. 506 of I.P.C. it

is seen that section 503 of I.P.C defines criminal

intimidation. Section 503 of I.P.C. states that:­

“Whoever threatens another with any injury

to his person, reputation or property, or to the
person or reputation of anyone in whom that
person is interested, with intent to cause alarm to
that person, or to cause that person to do any act
which he is not legally bound to do, or to omit to
do any act which that person is legally entitled to
do, as the means of avoiding the execution of such
threat, commits criminal intimidation”

The most important ingredient under

Section 506 of IPC is that:

(1) The accused threatened with injury to his

person, reputation or property;
 Page 20 of 69 .

(2) The accused did so with an intention to

cause alarm;
(3) The accused did so to cause the victim to
perform any act which he was not legally bound
to do.

P.Ws. 1, 2 & 3 who are all the victims in the

present case, have stated about the abuse but have not
categorically averred about any threat. Neither P.ws. 1
to 3 nor any other witnesses on behalf of the
prosecution have stated anything with respect to the
actions of the accused persons causing alarm. To add to
it the accused persons through their alleged
intimidation had not made the victim perform any act
which they were not legally bound to do.

In Chandi Vs. Bhabataran (1964) 2 Crl.

L.J. 1985 it was held that:

“the threat must be communicated or

uttered with intention of it is being communicated
to the person threatened with the object of
infusing his mind. In the present case the
prosecution not only has failed to prove the above
 Page 21 of 69 .

ingredients but also ha s failed to show as to how

the victims got intimated if any”.

Hence, keeping into view the above

discussions, citation, it can be clearly held that offence
U/s. 506/34 of I.P.C. is not attracted and the accused
persons cannot be held guilty thereunder.

23. Let us now analyze the offence U/s. 354 of

I.P.C. Section 354 of I.P.C. states that:­

“Whoever assaults or uses criminal force to

any women, intending to outrage or knowing it to
be likely that he will thereby outrage her modesty,
shall be punished with imprisonment of either
description for a term which may extend to two
years or with fine or with both”

The most important ingredients under the

above Section 354 of IPC is that:

(1) A woman was assaulted or subjected to use

of assault or criminal force;
 Page 22 of 69 .

(2) The intention of the accused was to outrage

her modesty; or
(3) The accused knew that he modesty will be
outrage thereby.

In Kesab Vs. State (1976) Cuttack

L.R236 it was held that

“the test of outrage of modesty is whether a

reasonable man well think that the act of the
offender intended to or was known to be likely to
outrage the modesty of the woman”.

Intention or knowledge being the essential

ingredient of the offence, where an accused is tried for
an offence under this section, and the prosecution
succeeds in providing the assault by the accused, the
next question that arises to be considered is whether
he did so with intent to outrage the woman’s modesty
or with knowledge that it would be outraged.

Modesty is defined as the quality or being

modest; and in relation to a woman, “womanly
propriety of behavior, scrupulous chastity or thought,
 Page 23 of 69 .

speech and conduct”. It is the reserve or sense of shame

proceeding from instinctive aversion in to impure or
coarse suggestions.

In the present case at hand the allegation of

outraging of modesty has been raised by Santilata Pal
(P.W. 1) and corroborated by her husband (P.W. 2).
Apart from the above two witnesses no other witnesses
have corroborated about the outraging of modesty.
P.W. 1 i.e. Santilata Pal in her evidence at para­3
states that the accused persons pinned her down,
removed her wearing apparels and started to assault
her. P.W. 2 has also corroborated at para­2 by stating
that the accused persons started to assault his wife
after removing her wearing apparels. However, the
other victim i.e. Niranjan Pal has remained silent
about the same. None of the other prosecution
witnesses have stated anything with respect to
outraging of modesty. In the present case at hand
intention plays a very vital role.

In Raja Pandurang V. State (2004) 4

SCC 371: AIR 2004 SC 1677: 2004 Cr.L.J1441, the

 Page 24 of 69 .

apex court has laid down the essential ingredients of

offence under Section 354 as under.
(a) that the assault must be on woman;
(b) that the accused must have used criminal
force on her; and
(c) that the criminal force must have been used
on the woman intending thereby to outrage her
modesty or knowing that his acts would likely to
outrage her modesty.

The prosecution has failed to show the

intention of the accused persons to outrage the
modesty of the woman. Although there is proper
corroboration with respect to the hurt of victim
Santilata, Niranjan and Deepak but there being lack of
corroboration of outraging of modesty of Santilata and
the prosecution failing to show any intention to
outrage her modesty, none of the accused persons can
be convicted U/s. 354 / 34 of IPC. The culpable
intention of the accused persons being crux U/s. 354 of
IPC and the prosecution along with its witnesses
failing to prove the same it can be clearly held that the
offence U/s. 354 / 34 of IPC is not made out.
 Page 25 of 69 .

24. Let us now analyze the offence U/s. 307 of

I.P.C.Section 307 of the I.P.C. states that :­

“Whoever does any act with such intention or

knowledge, and under such circumstances that, if he by that act
caused death, he would be guilty of murder, shall be punished
with imprisonment of either description for a term which may
extend to ten years, and shall also be liable either to
imprisonment for life, or to such punishment as is hereinbefore

mentioned. “

The most important ingredients of Section 307 of

IPC as that:

(1) The accused did some act;

(2) Such act was done with intention or
knowledge that hurt was likely to be caused to
the victim by the act.

The wordings of the said section clearly

reveal that there must be an offence or knowledge that
by such act death shall be caused and that accused
would be guilty of murder. To constitute offence u/s.
307 of I.P.C. the intention or knowledge must be such
as is necessary to constitute an offence or more.
 Page 26 of 69 .

In 1997 CRLJ 932 it was held that :­

“ the injuries however, has to deduce or infer or

other facts such relevant facts are as follows :­
(1) Nature of weapon used;
(2) The place where injuries were inflicted;
(3) Nature of injuries caused;

(4)Opportunity available to the accused, if the

accused having dangerous weapon inflicted some minor
injury, then the offence of section 307 cannot be held to
be proved.

25. Firstly the alleged offence of weapon is an

iron rod and a Bhujali which has not been seized.
There should be a clear intention to cause death of the
victim. In the present case, no such intention has been
shown by the prosecution. Secondly as discussed above
the place of occurrence was not in side home but out in
the road. None of the prosecution witnesses have not
stated about the accused persons making any
preparation for carrying out the offence. Thirdly the
nature of injury caused to the victim are also very
simple in nature. P.W. 7 who is a medical officer has in
his evidence stated that the injuries to the victims
were simple. As the injuries are not vital in nature,
 Page 27 of 69 .

this suggests that there was no intention to cause

death to the victim. The prosecution ha clearly failed to
prove the intention of the accused persons to commit
murder which is ably corroborated by the nature of
injury which is simple in nature. Furthrmore there has
been no seizure of the alleged weapon of offence.
Hence,in the present case it can be clearly held that
the prosecution has not been able to prove the
ingredients of offence U/s. 307 of IPC.

Hence, it can be clearly held that offence

U/s. 307/34 of I.P.C. is not attracted and the accused
persons cannot be held guilty thereunder.

26. Coming into the offence U/s. 323 of I.P.C. it

is seen that section 319 of I.P.C defines hurt as:

“Hurt­ Whoever causes bodily pain,

disease or infirmity to any person is said to

cause hurt”.

The essential ingredients of the offence U/s. 323

of IPC are as follows:
 Page 28 of 69 .

(1) Accused voluntarily caused bodily pain,

deceased or infirmity to the victim;
(2) The accused did so with intention of causing
hurt or with the knowledge that he would thereby
cause heart to the victim.

27. The prosecution witnesses have

corroborated equivocally to the occurrence. All the
prosecution witnesses have stated about the assault by
an iron rod and Bhujali by Deepak to Prasant Pal.
P.W. 2 at para­2 states that the accused Deepak
assaulted Prasant by means of a rod and Bhujali and
the rest accused persons had also assaulted Prasant.
P.W. 2 at para­2 also corroborates the same. P.W. 3 at
para­2 corroborates both the P.Ws. 1 & 2. P.W. 5 at
para­2 corroborates about the injury of Prasant by
stating that he had taken Prasant to the medical. At
para­6 he states that when he reached at the spot he
found the victim was lying on the ground and his wife
was crying. P.W. 6 has also corroborated the injury by
stating that he got to know about Prasant being
assaulted and at para­2 states that the head of the
Prasant was also got injured during the occurrence.
P.W. 9 who is the I.O in the present case has in his
 Page 29 of 69 .

evidence at para­8 stated that the victim had injuries

over their bodies. At para­10 he further adds that
Santilata had stated before him that Deepak had
assaulted her husband with an iron road on his head.
These all corroborating witnesses clearly suggest that
Deepak had indeed assaulted Prasant with an iron rod
on his head. P.W. 1 and 2 have clearly stated that
apart from Deepak all the rest accused persons had
also assaulted them. Cross­examination with respect to
the rest accused persons is silent. Hence, it can be

clearly held that as per the oral testimony, all the

prosecution witnesses have corroborated about

Deepak assaulting Prasant with an iron rod over his

head causing simple injury , which also stood strong

during cross­examination and the rest accused persons
also assaulting Prasant.

28. The assault by Deepak to Niranjan has also

been corroborated by all most all prosecution
witnesses. P.W. 1 at para­4 states that seeing the
occurrence Niranjan tried to rescue them but the
accused gave blow by Bhujali on the neck of Niranjan
and also assaulted him with a rod on his shoulder.
P.W. 2 at para­2 also corroborated the same stating
 Page 30 of 69 .

about the accused Deepak assaulting Niranjan by a

Bhujali on his neck for which he got injured and fell
down. P.W. 3 at para­2 states that Deepak had given
blow with a Bhujali on the left side of his neck and
again on his hand. At para­4 he states that due to
severity of the occurrence he rushed to rescue the
victim and then he got deadly blows. At para­6 he
states that Deepak fist gave a blow on his left hand
and another blow near his neck. He also showed his
injury to the court. P.W. 4 corroborates the above
injury in para­2 of his evidence by stating that when he
reached at the spot she found his son Niranjan
bleeding from his neck. At para­4 she states that the
right hand side neck of Niranjan was injured. P.W. 6 at
para­1 also corroborates injury by stating that his son
Niranjan was assaulted by accused and was taken to
medical. At para­2 he further adds that when his son
tried to intervened into the attack to victim Prasant
his son got injured. P.W. 9 at para­8 states that all the
victims were injured and were draped in their injured
parts with bandage. These all corroborating evidence,
which stood strong during cross­examination clearly

suggests that Deepak has indeed caused injury to

the present victim Niranjan Pal.

 Page 31 of 69 .

29. Let us now come into the allegation of

assault to Santilata. P.W. 1 at para­3 clearly states
that when she saw her husband being attacked she
rushed for his help, whereby the accused persons
started to assault her. P.W. 2 at para­2 also
corroborates about his wife being assaulted. Cross­
examination with respect to the assault on P.W. 1 is
absolutely silent. P.W. 3 at para­2 states that when he
had reached at the spot he found the accused persons
assaulting the informant. P.W. 9 at para­8 states
thatall the victims were injured and were draped in
their injured parts with bandage. All the above
corroborating testimonies, which stood strong during
cross­examination with respect to the assault on
Santilata have virtually gone unchallenged and passed

under the watchful radar of defence and clearly

proves the accused persons having assaulted

Santilata.

30. Let us now come into the medical

examination and inquiry in this respect. P.W. 7 who

is the medical officer has corroborated to all the

injuries. P.W. 1 at para­2 states that the accused
 Page 32 of 69 .

Deepak had assaulted her husband by a rod and

Bhujali and all the rest accused persons had also
assaulted her husband. At para­4 she states that one
Maheswar Majhi had taken her and her husband to
the hospital, while Niranjan was taken by his mother
to the hospital. In her cross­examination at para­8 she
has corroborated her stand by stating that the victim
was taken to medical by Maheswar with her in a
motorcycle. They had deposed before the doctor about
the occurrence. At para­9 she in her cross­examination
states that there was cut near the ear of Niranjan.
P.W. 2 at para­2 states about the injures to the victim.
P.W. 3 at para­7 states about his medical treatment.
P.W. 4 who is the mother of P.W. 3 at para­2 states
about her taking P.W. 3 (one of the victim) to the
hospital. P.W. 5 who had helped P.W. 1 and 2 has

in his evidence corroborated about the

occurrence and medical examination by stating

at para­2 that he had taken the victim i.e. P.Ws. 1

& 2 with him to medical. At para­7 during his cross­

examination he states that in his motorcycle he took

the victim and her husband to the medical. P.W. 7 who
is the doctor in the present case has corroborated about
 Page 33 of 69 .

the above injuries. While both P.Ws. 1, 2 & 3 have

corroborated about the victim Prasant having injury
over his head, the doctor has corroborated the same in
para­1 of his evidence wherein he states that there was
a single injury on the head of the informant caused by
a hard and blunt weapon and the injury being simple
in nature. P.W. 7 has also corroborated about the
injury to P.W. 3 (Niranjan Pal) by stating that
Niranjan had one single injury on the left side of his
neck caused by a hard and blunt weapon. P.W. 7 also
corroborates about there being no visible external
injury on PW. 1 but states that the injuries were
simple in nature. The medical testimony clearly
corroborates the evidence of the prosecution witnesses.
It has also been corroborated by P.W. 1 at para­4, P.W.
2 at para­3 and P.W. 5 at para­2 and P.W. 7 i.e.
Maheswar had taken both Santilata and Prasant to
hospital. It has also been corroborated by P.Ws. 3 & 4
that Niranjan was taken to hospital by Maina Pal i.e.
P.W. 4. As stated, the above analysis of evidence

clearly suggests about their being simple injuries

on the body of the victims being caused by the

accused persons.
 Page 34 of 69 .

31. Let us now look into the chain of events and

see if there is any missing link in the entire
transaction. Let us also analyze the point of law in this

regard. Section 5 of the Indian Evidence Act states

that:
“Evidence may be given in any suit or
proceeding of the existence or non­existence of
every fact in issue and of such other facts as are
hereinafter declared to be relevant, and of no
others.”

Section 3 says that one fact is relevant to

another when one is connected with the other in

any of the ways referred in this chapter.
Relevancy to facts from section 5 to 11 deals with
co­related facts which are relevant.

Section 6 of EvidenceAct which described

the principles of res gestae states

“Facts which, though not in issue, are so

connected with a fact in issue as to form part of
the same transaction are relevant, whether they
 Page 35 of 69 .

occurred at the same time and place or at

different times and places.”

This section admits those facts the

admissibility of which comes under the technical
expression res gestae [ i.e. the things done(including
words spoken)in the course of a transaction], but such

facts must ‘form part of the same transaction’. If

facts form part of the transaction which is subject of

enquiry, manifestly evidence of them ought not to be
excluded. The question is whether they do form part or
are too remote to be considered really part of the
transaction before the Court. A transaction is a group
of facts so connected together as to be referred to by a
single legal name, as a crime, a contract, a wrong or
any other subject of inquiry which may be in issue.
Roughly, a transaction may be described as any
physical act, or a series of connected physical acts,
together with the words accompanying such act or
acts. Every fact which is part of the same transaction
as the fact in issue is deemed to be relevant to the fact
in issue although it may not be actually in issue, and
although if it were not part of the same transaction it
might be excluded as hearsay. Illustration (b)
 Page 36 of 69 .

indicates that acts done at different places and times

may form part of the same transaction. Thus, a
transaction consists both of the physical acts and the
words accompanying such physical acts, whether
spoken by the person doing such acts, the person to
whom they were done or any other person or persons.
Such words are admissible in evidence as parts of a
transaction The expression ‘by standers’ used in ill.(a)
of sec 6, means the persons who are present at the
time of the occurrence and not those who gather on the
spot after the occurrence. The remarks made by
persons other than the eye witnesses could only be
hearsay because they must have picked up the news
from others.” The illustration appended in Section 6
at (a) states that :­

“ A is the accused of the murder of B

by beating him. Whatever was said or done by A,
or B or the by­standers at the beating, or so
shortly before or after it as to form part of the
transaction, is a relevant fact.”

One of major ingredients of section 6 is that

facts which forms part of the same transaction are
 Page 37 of 69 .

relevant. In Chain Mahto v. The Emperor (1906)11

CWN 266, 271 it was held that :­

“Facts forming part of same transaction –

Statements of by­standers witnessing a
transaction are relevant if they are made while
the transaction is in progress or so shortly before
or after it as to form part of the same transaction”.

Similarly Section 7 states that:­

“ Facts which are the occasion, cause or

effect, immediate or otherwise, of relevant facts, or
facts in issue, or which constitute the state of
things under which they happened, or which
afforded an opportunity for their occurrence or
transaction, are relevant’.

32. There has been material corroboration with

respect to the assault on the father­in­law of P.W. 1.
P.W. 1 at para­2 of his evidence stated about the
accused persons dragging her father­in­law and
assaulting her. P.W. 2 at para­2 also corroborates the
same. P.W. 3 at para­2 has corroborated the same.
Cross­examination with respect to the assault on
 Page 38 of 69 .

Basanta Pal is virtually silent. Assault on Basanta

Pal forms part of a chain which caused the

occurrence to take place.

33. Intervention of Prasant is also a vital

link in the chain of the occurrence. P.W. 1 at para­

2 and P.W. 1 at para­1 state about the intervention of

Prasant in the occurrence. Intervention of Niranjan is
also a very important link which happened just prior to
the occurrence forming part of the same transaction.
This has been corroborated by P.W. 2 art para­4, P.W.
2 at para­3 and P.W. 3 at para­2. It has been a back

ground story of the prosecution that both P.Ws 1

& 2 are suffering from AIDS and for which the

accused persons had been mistreating them. P.W.

1 at para­1 stated that the accused personsstated to
her father­in­law “Tu semanaka sahita kahinki
basuchu semane AIDS patient tote roga heba”. Further
at parra­2 she states that “tuta AIDS patients to
Gharaku kan se jiba asiba kariba”. P.W. 2 at para­2
states that all the accused persons had stated to his
father “tu ethibasiparibuni semanaka ta roga haichi tu
kan roga bansare pureibu”. Further at para­2 he states
 Page 39 of 69 .

that “tu me mane ethu uthija, maghia to te jibanare

mariki sesa kari debi, to ra banchibar adhikar nahi, to

kan AIDS team karibu”. P.W. 9 who is the I.O in the

present case has in his evidence stated that

Prasant had during his recording of statement

u/s 161 CrPC stated before him that the accused

persons had told to him that “tu ethi basi

paribuni semanaku roga heichi to kan bansare

roga pureibu’. These all corroborating witnesses

clearly shows the chain which caused the occurrence.

The averments about P.W. 1 & 2 having AIDS and

their father being commented in that respect,

assault on their father, Prasant trying to

intervene and thereafter Niranjan trying to

intervene shows that they are all relevant fact

and in fact are very much connected with the

fact in issue i.e. assault to Prasant, Santilata and

Niranjan and do form the part of the same

transaction and are relevant.

The prosecution has clearly been able to

prove the above averments. In this respect P.W. 4 at
para­1 4 also helps the prosecution story when she
 Page 40 of 69 .

states at para­1 that at the time of occurrence she

received a telephone call from the victim P.W. 3 stating

her to rush back home (Bou tu Jaldi ase). This fact

has not been challenged during cross­examination.

This fact forms part of the same transaction and is
relevant to the prosecution case at it is the effect of the
fact in issue. In my opinion the prosecution has clearly
proven the injuries to Prasant being caused by Deepak
and others, the injuries to Niranjan being caused by
Deepak and the assault to Santilata caused by all the
accused persons, clearly. The prosecution has also
fitted in the entire vital clogs of chain by showing the
reason of assault, I.e of their being a civil dispute,
abuse to Basant Pal, intervention by Prasant, Niranjan
and thereafter the assault to all by linking all the same
in a perfect chain. As the above injuries to all three
victims are simple in nature, their being complete
corroboration by all proscution witnessess, it can be
clearly held that the offence U/s. 323 of IPC is clearly
attracted.

34. Section 34 of IPC states that: “Acts done

by several persons in furtherance of common intention­

When a criminal act is done by several persons in
 Page 41 of 69 .

furtherance of the common intention of all, each of such

persons is liable for that act in the same manner as if it
were done by him”.

In Dani Singh Vs. State it was held that:

“Common intention” does not mean

same or similar intention. It implies prearranged
plan and acting in concert pursuant to be said
plan. Though it may develop on the spot, it must
be anterior in point of time.”

In the present case the previous civil dispute, ,

the joint manner of attack, aspersions about the
victims having AIDS, joint attack to all the victims,
clearly shows the common intention of the accused
persons to carry on the offence.

35. The defence raises its stand on six

points, which are :

Firstly, the defence states about there

being suppression of FIR. The defence argues that

P.W. 1 at para­8 towards sixth line states about her

reaching at P.S at about 7.30 p.m. wherein she had
given a statement in writing which should have been
treated as FIR.
 Page 42 of 69 .

The defence relies upon a citation in

Pradip Giri Vs. State 1994 Vol.7 OCR­114 wherein

it has been held that

“when the FIR is suppressed and subsequent
FIR is taken the case of the prosecution is suspicions”.

The defence has also relied upon Section

114 (g) of Indian Evidence Act which states that:

“Presumption from withholding evidence­

This illustration lays down that if evidence which can
be put is not produced it may be presumed that if
produced it would be unfavourable to the person who
withheld it. The omission of party in a proceeding to
produce the evidence which he could have produced
raised a presumption against his claims. A refuse to
produce a deed which is the basis of the title which he
claims. The presumption is, that, if produced, the deed
would injury his claim. When a party does not produce
a document in his possession the Court may presume
that its production will damage his case”.
But it should be borne in mind that adverse
inference cannot be drawn by mere non­production of a
document by a party if the opposite party did not apply
for its production.
 Page 43 of 69 .

The presumption is only an option and one

fact depending upon whole set of facts.

36. Let us now see the alleged evidence of P.W.

1. P.W. 1 at para­8 clearly states that at about 7.30 ­8
p.m. they had reached at hospital. In fact at para­10
she states that they had reached P.S where in IIC had
directed them to immediately proceed to the hospital
while after being discharged she along with her
husband reached P.S. The FIR was scribed as per her
own direction. Nowhere P.W. 1 has in her evidence
stated about filing the FIR prior to going to the
hospital. The present stand of the defcence is neither
strong enough nor has been clearly put forth by the
defence. The prosecution on the other hand through
P.W. 1 at para­10 has clearly corroborated her FIR.
Hence, the present stand does not have any merit.

37. Second stand of the defence and the stand

which they have must vociferously stated is that, the
victims have stated false about all their injuries.

P.W. 2 at para­8 states about his head having cut

injury and stitched injury in his stomach. At para­10
he also states about the police seeing blood stains. P.W.
 Page 44 of 69 .

3 also testifies about the assault by a Bhujali on the

left side of his neck. The defence has stated that during
cross­examination of P.W. 7 who is a medical officer,
has clearly stated about the injuries if caused by a
Bhujali or an iron rod would have laceration injury or
sharp cut injury which are not present, hence the
defence states that in view of such medical evidence it
can be clearly stated that the evidence of the
prosecution witnesses are clearly exaggerated and
needs to be thrown out of the window, as
untrustworthy and unreliable.

They have also relied upon a citation in

2016 Vol. 65, OCR­11 of Gheno Sahoo Vs. State

wherein it has been held that:

“in case of inconsistency between the
medical and ocular evidence, medical evidence
assumes greater importance”.

38. The present ground raised by the defence of

medical opinion not corroborating the prosecution case
is under two heads. Firstly the evidence of P.W. 2 at

para­10 where he states about the I.O having seen the

 Page 45 of 69 .

blood stains and secondly, that the ocular testimony

of injuries and medical opinion being quite opposite.

Coming first into the averments about I.O.
seeing the blood stains, it is seen that P.W. 1 who has
clearly stated in Para­8 that “Bankim had denied for
medical examination during my investigation as he did
not have any visible injury. All the victims had injures
and were draped in their injured parts with bandage”.
This evidence clearly states about there being injuries.
Coming into the 2nd point, While P.W. 1 who
is the informant states about the weapon of offence
used by Deepak was an iron rod, which has more or
less has been corroborated by everyone. But P.W. 2 has
added about Bhujali being used along with the iron rod
upon him. P.W. 2 states that he was given a blow with
an iron rod on his head causing injury. P.W. 2 states
that the accused had given a heavy blow with iron rod
with his head and had also tried to assault him with a
Bhujali for which he got injured upon his stomach and
belly. The medical report of P.W. 2 which is marked as
ext. 3 clearly shows about one injury on his head.
However, the medical report reveals about Prasant
stating the doctor and I.O about the injury on his head
and belly. Some exaggerations clearly have been done.
 Page 46 of 69 .

Coming into Ext. 4, it is seen that Niranjan Pal has

sustained a simple injury on his left side neck which
clearly corroborates the prosecution story and all the
prosecution witnesses. However his allegation of
swelling injury on his left hand clearly shows some
exaggeration as nothing in that sort has been shown by
the doctor. Ext. 5 which is the medical report of
Santilata clearly shows about her pain over her body
but does not show any external injury. Santilata had in
fact stated about her not sustaining any injury due to
the occurrence.

In State Of U.P vs Naresh And Ors on 8

March, 2011, ( 2011) 4 SCC 324 it was held that,

“The court has to form its opinion about the

credibility of the witness and record a finding as to
whether his deposition inspires confidence.

Exaggerations per se do not render the

evidence brittle. But it can be one of the factors to test
credibility of the prosecution version, when the entire
evidence is put in a crucible for being tested on the
touchstone of credibility." Therefore, mere marginal
variations in the statements of a witness cannot be
 Page 47 of 69 .

dubbed as improvements as the same may be

elaborations of the statement made by the witness
earlier. The omissions which amount to contradictions
in material particulars i.e. go to the root of the
case/materially affect the trial or core of the
prosecution's case, render the testimony of the witness
liable to be discredited.”

In Bharwada Bhoginbhai Hirjibhai vs

State Of Gujarat on 24 May, 1983 (Equivalent

citations: 1983 AIR 753, 1983 SCR (3) 280)it was

held that,

“ Much importance cannot be attached to

minor discrepancies. The reasons are obvious:

(1) By and large a witness cannot be expected to possess

a photographic memory and to recall the details of an
incident. It is not as if a video tape is replayed on the
mental screen. (2) ordinarily it so happens that a
witness is overtaken by events. The witness could not
have anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the details.
 Page 48 of 69 .

(3) The powers of observation differ from person to

person. What one may notice, another may not. An
object or movement might emboss its image on one
person's mind whereas it might go unnoticed on the
part of another.

(4) By and large people cannot accurately recall a

conversation and reproduce the very words used by
them or heard by them. They can only recall the main
purport of the conversation. It is unrealistic to expect a
witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time

duration of an occurrence, usually, people make their
estimates by guess work on the spur of the moment 1.1
at the time of interrogation. And one cannot expect
people to make very precise or reliable estimates in such
matters. Again, it depends on the time­ sense of
individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall

accurately the sequence of events which take place in
rapid succession or in a short time span. A witness is
 Page 49 of 69 .

liable to get confused, or mixed up when interrogated

later on.

(7) A witness, though wholly truthful, is liable to be

overawed by the court atmosphere and the piercing
cross examination made by counsel and out of
nervousness mix up facts, get confused regarding
sequence of events, or fill up details from imagination
on the spur of the moment. The sub­conscious mind of
the witness sometimes so operates on account of the fear
of looking foolish or being disbelieved though the
witness is giving a truthful and honest account of the
occurrence witnessed by him­Perhaps it is a sort of a
psychological defence mechanism activated on the spur
of the moment.”

Discrepancies which do not go to the

root of the matter and shake the basic version of

the witnesses therefore cannot be annexed with

undue importance. More so when the all important

"probabilities­factor" echoes in favour of the version

narrated by the witnesses, much undue importance to
minor contradictions cannot be echoed.
 Page 50 of 69 .

The above citation clearly shows that

contradictions if any which do not hit the root of
the prosecution case, can’t be treated as vital in
the present case. Minor contradictions, if any
would in no way can put a question mark on the
story of the prosecution.
These evidences clearly show

about there being corroboration with respect

to the occurrence, injury.

39. Let us see the point of law in this

respect. In Basappa Vs. State of Mysore AIR

1961, Maysore­81 it was held that:

“opinion of the medical officer cannot be

taken as contradicting the positive evidence
of the witnesses to the fact”.

In Panjab Sing Vs. state of Haryana

AIR 1984 SC 1233 it was held that:

“when direct evidence about assault by

a particular person is satisfactory and reliable,
medical evidence cannot override that because the
later is hypothetical”.
 Page 51 of 69 .

Arjuna Nayak Vs. State of Orissa

2002 Crl. L.J 2785 it was held that

“in case of discrepancy between

medical evidence and ocular evidence, the
later will prevail because the medical
evidence is only a opinion”.

M. Thakur and others Vs. State AIR

1955 Allahabad it was held that:

“The opinion of a physician or a surgeon

may be admitted to show the physical condition of a
man, the nature of a disease, the nature of injures and
the weapon with which they were caused.”

40. Where there is a conflict between the

medical evidence and oral testimony of witnesses, the

evidence can be assessed only in two ways. A Court

can either believe prosecution witness

unreservedly and explain away the conflict by

holding that the witnesses have merely

exaggerated incidence or rely upon the medical

evidence and approach the oral testimony with

caution testing it in the light of medical

 Page 52 of 69 .

evidence. The first method can be applied only in

those cases where he oral evidence is above reproach

and creates confidence and there is no appreciable
reason for the false implication of any accused where
the evidence is not of that character and the medical
evidence is not open to any doubt or suspicion, the only
safe and judicial method of assessing evidence is the
second method’.

As discussed above all the witnesses have

corroborated to the occurrence about the assault by
Deepak and others. The specific allegation of falsity
and exaggeration has been made against Deepak of his
assault by an iron rod and this has been corroborated
by all the witnesses. The injury to Niranjan pal is
clearly proved as his injury is on his neck as stated by
him and Medical Officr. The injuries to Prasant is also
clearly proved as he states about the injury on his
head. Only with respect to the nature of injury is where
the defence hits. While the defense states that iron rod
should have caused even greater injury as corroborated
by medical officer but nevertheless at the specific place
there lies simple injury. As discussed above the
medical opinion cannot be taken contradicting the
 Page 53 of 69 .

positive evidence of the witnesses to the facts.

Furthermore the direct evidence with respect to the
assault by Deepak and others is not only satisfactory
and reliable but also linked through chain of evidence
corroborated by medical report. Hence, minor
exaggerations as discussed above would in noway hit
the prosecution case. Hence, it can be clearly held that
the prosecution has clearly been able to prove their
injuries and the medical opinion nowhere helps the
defence case.

41. The next point raised by the defence is that

as per the evidence of P.W. 8, is that there was a
quarrel between both the parties and as stated

by the I.O the daughter of Bijay had thrown

stones and both the parties after having tussle

fell down nearby a thorny plant getting injured.

All the defence witnesses have also corroborated to the

same. The I.O also corroborates about this story of
defence of falling over a thorny plant creating injury to
both the warring parties. But in the present case the
daughter of Bijay has not been examined as a defence
witness. It is the bounden duty of defence to examine
the said daughter which the defence did not. Bijay has
 Page 54 of 69 .

also denied the above averments about throwing of

stones by his daughter. The defence witnesses have
stated about previous dispute between the parties
giving rise to the present case. The above discussion
about the previous enmity would be dealt later on. At
this stage when the defence has not examined the
daughter of Bijay and Bijay specifically denied
throwing of stones and the corroboration of I.O falling
flat as the I.O only states about the statement to Bijay
given before him, which Bijay himself denied in Court.
Hence, this story of defence does not have much
strength.

42. Next ground raised by the defence is of

previous enmity:

The defence claims about the previous

enmity between the parties as a reason for filing such

baseless claims. In the citation of State Of

Maharashtra vs Tulshiram Bhanudas Kamble &

Ors on 21 August, 2007Appeal (crl.) 85­87 of 2000 in

SC it was held that:

 Page 55 of 69 .

“34. Each of the reasoning assigned by the High Court,

in our opinion, is contrary to the well­settled legal
principle. The witnesses examined on behalf of the
prosecution, apart from being eye­witnesses, were
injured witnesses. Their presence at the place of
occurrence, therefore, cannot be doubted. Only because
they were inimical to the respondents, the same by itself
cannot be a ground to discard their evidences. Although
in accepting the same, some amount of caution is
required to be maintained.”

In Ramashish Rai vs. Jagdish Singh

[(2005) 10 SCC 498], Apex Court held:

"7. We are clearly of the view that the findings of the

High Court were erroneous, resulting in grave
miscarriage of justice. The eyewitnesses # PWs 1, 2, 3,
5, 8 and 10 consistently supported the case of the
prosecution throughout. They were subjected to lengthy
cross­examination but nothing could be elicited from
their mouth so as to discard the creditworthiness of
their statements. The ocular evidence of the
eyewitnesses was corroborated in material particulars
 Page 56 of 69 .

by the medical evidence. In our view, therefore, the

acquittal recorded by the High Court on the aforesaid
reasoning is perverse. The High Court discarded the
eyewitness account, branded them as inimical
witnesses. This is not the requirement of law. The
requirement of law is that the testimony of inimical
witnesses has to be considered with caution. If
otherwise the witnesses are true and reliable their
testimony cannot be thrown out on the threshold by
branding them as inimical witnesses. By now, it is well­
settled principle of law that enmity is a double­edged
sword. It can be a ground for false implication. It also
can be a ground for assault. Therefore, a duty is cast
upon the court to examine the testimony of inimical
witnesses with due caution and diligence. In the present
case the High Court has rejected the otherwise
creditworthy testimony of eyewitness account merely on
the ground that there was enmity between the
prosecution party and the accused party."

In State of U.P. vs. Kishan Chand and

others [(2004 7 SCC 629], this Court observed :

 Page 57 of 69 .

"9. The submission of the counsel for the accused that

the testimony of PWs cannot be acted upon as they are
interested witnesses is to be noted only to be rejected. By
now, it is well­settled principle of law that animosity is
a double­edged sword. It cuts both sides. It could be a
ground for false implication and it could also be a
ground for assault. Just because the witnesses are
related to the deceased would be no ground to discard
their testimony, if otherwise their testimony inspires
confidence. In the given facts of the present case, they
are but natural witnesses. We have no reason to
disbelieve their testimony. Similarly, being relatives, it
would be their endeavour to see that the real culprits
are punished and normally they would not implicate
wrong persons in the crime, so as to allow the real
culprits to escape unpunished."

In Baitullah and another vs. State of

U.P. [1998) 1 SCC 509], this Court noticed Arjun

vs. State of Rajasthan [(1994) Supp. (3) SCC 189],

wherein it was observed :

 Page 58 of 69 .

"9. Learned counsel for the appellants first contended

that there was long­standing enmity between the
complainant and some of the witnesses on one hand
and the appellants on the other and some criminal
proceedings between them were going on when the
alleged incident took place and hence it was due to this
enmity that the appellants were falsely implicated. It
was also submitted that Bahori, PW1 and Sat Pal
Singh, PW7 are also relatives of the deceased and other
prosecution witnesses are also close associates and,
therefore, there is possibility of false implication of the
appellants in the crime in question. It is an admitted
fact that the complainant and the appellants were on
inimical terms and some criminal proceedings
wereending between them even at the time when the
occurrence took place. It is equally true that Bahori,
PW1 is the brother of the deceased and informant Sat
Pal Singh, PW7 is the son of the deceased. But we are
not convinced by the aforesaid arguments that either on
account of animosity or on account of relationship they
did not divulge the truth but fabricated a false case
against the appellants. It is needless to emphasize that
enmity is a double­edged sword which can cut both
 Page 59 of 69 .

ways. However, the fact remains that whether the

prosecution witnesses are close relatives of the deceased
victim or are on inimical terms with the deceased
involved in the crime of murder, the witnesses are
always interested to see that the real offenders of the
crime are booked and they are not, in any case, expected
to leave out the real culprits and rope in the innocent
persons simply because of the enmity. It is, therefore,
not a safe rule to reject their testimony merely on the
ground that the complainant and the accused persons
were on inimical terms. Similarly the evidence could
not be rejected merely on the basis of relationship of the
witnesses with the deceased. In such a situation it only
puts the Court with the solemn duty to make a deeper
probe and scrutinize the evidence with more than
ordinary care which precaution has already been taken
by the two courts below while analyzing and accepting
the evidence."

43. As regards enmity, it is well known that

enmity is a double edged weapon. Prosecution has
clearly been able to prove about occurrence and the
intention of the accused. D.W.1 and D.W. 2 have
pictured a story about the previous grudge of the
 Page 60 of 69 .

family of the informant against them. D.W2, who is the

father of the accused states that there was a civil
dispute between the parties which got settled. He
further adds that due to the previous dispute the
present case has been filed. In that respect the defence
has filed village compromise. I do not think said
compromise can be looked into as it is a private
document. This being a previous dispute as raised by
the defence, can also prove the prosecution case about
the present accused getting enraged and committing
the offence. Furthermore, the offence in the present
case and in the case alleged by the defence are totally
different. The story of the defence rather than proving
their case, has clearly acted like a double edged
weapon, which very well proves the intention of the
accused to cause the offence. Hence, evidence of the
defence witnesses is neither believable nor
trustworthy.

As discussed above the previous enmity is a

double edged weapon. P.W. 8 at para­1 in his evidences
states about the civil dispute between the parties and
the accused persons getting enraged for the same. P.W.
9 at para­11 also states about the civil dispute between
 Page 61 of 69 .

the parties. P.W. 6 at para­2 states about the reason

for the accused persons assaulting the victims having
its origin to some property dispute. At para­5 he also
corroborates by stating that Prasant and his wife were
both AIDS victims and due to such reason the accused
persons had been mistreating them. As stated above

previous enmity is a double edged weapon and

rather than hitting on the other side it hits back

on the person holding it, more so often. In the

present case the defence has raised ground about

previous enmity and as the prosecution has proved the
occurrence it clearly goes to show the intention of the
accused persons to carry out the offence U/s. 323 / 34 of
IPC.

44. Now coming into last point raised by the

defence wherein he states that P.W. 3 is a highly

interested witness and his evidence is an

exaggerated one and that the I.O has clearly stated

about the contradictions in the evidence of other
witnesses. As regards to the question of exaggeration
those have been exclusively dealt above. As P.W. 3 is
the victim having corroborated his stand by all the
prosecution witnesses being strengthened by medical
 Page 62 of 69 .

report his evidence cannot be said to be an exaggerated

one and also it no way hits the prosecution case. So far
as the stand taken by the defence that the I.O has
made oral contradictions it is seen that the I.O in para­
8 of his evidence clearly states about the injuries and
admits about not seizing of wearing apparels despite
there being apparels draped on the injured persons and
also admits about Deepak assaulting the husband of
the informant with an iron rod on his head) Para­10.
These evidences clearly shows that the defence has
failed to disprove the allegation leveled against the
accused persons.

45. The defence has also stated that there has

been no seizure of weapon of offence in this case of

any iron rod or Bhujali.

In Gurjant Singh vs State Of

PunjabJT 2002 (8) SC 238 it was held that:
“It is well settled that from the mere non­recovery
of the weapon alone, the case against the accused
concerned cannot be held to be not substantiated when
there is otherwise positive, convincing and credible
ocular evidence to prove the presence of the said
 Page 63 of 69 .

accused and his participation in the crime, as in this

case corroborated also by medical evidence so far as the
appellant is concerned.”

In this instant case when prosecution has clearly

proved the motive, the intention, the offence, the joint
attack, I donot think non seizure of weapon of

offence plays any vital role.

46. In the present case at hand the attack by

Deepak on the head of the Prasanta and on the neck of
Niranjan and the attack by the rest accused persons
on all three victims including Santilata, having
common intention, in broad daylight shows there
intention and preparation towards execution of the
offence U/s. 323 / 34 of IPC. Hence, in view of the above
discussion as the defence witnesses were not able to
prove their plea it can be clearly held that the defence
has failed to raise there defence.

47. In fact all the major grounds of the defence

raised by the accused persons have not been able to in
any way negate the allegations raised against them.
 Page 64 of 69 .

All the allegations of the defence appears shaky and

the evidence of the witnesses of the defence is neither
believable nor trustworthy.

48. In the net result, I find the present accused

persons guilty of the offence u/s. 323 / 34 of I.P.C. and
thereby convict him U/s. 235 (2) Cr.P.C. and not guilty
under section 307/ 294/ 354 / 506 / 34 of I.P.C.and
acquit him thereunder U/s. 235 (1) Cr.P.C.

49. Considering the nature of allegation and the

gravity of the offence against the present accused, the
same is found to be very serious in nature. The
occurrence being carried out early in the morning
where the accused persons having jointly planned the
same and carrying out the entire attack together and
in such a brutal manner, does not inspire for any
leniency. The benefit under P.O. Act if extended to
them, might encourage them to commit similar / graver
type of offence in future, by taking it for granted that
the courts are flexible while awarding the sentences.
Hence I am not inclined to grant any benefit of P.O. Act
 Page 65 of 69 .

to the convict and hence the benefit thereunder is

refused to him.

Civil Judge (Senior Division)­cum­

A.S.J., Kujang.

HEARING ON THE QUESTION OF SENTENCE

50. Heard the learned counsel for the convicts

on the question of sentence in presence of convicts
namely Arati Pal, Jayanti Pal, Gita Pradhan and
Deepak Pal. The learned counsel in this context
submits that, the offence committed by the convicts are
not so serious in nature and that they have no previous
criminal antecedents i.e they have not been convicted
in any case. So he submits to release the convicts under
the beneficial provision of P.O. Act. It is needless to
mention here that, I have already refused to grant any
benefit of P.O. Act to these convicts and therefore, the
same cannot be reconsidered. However, taking into
consideration the offence of voluntarily causing hurt,
committed by the accused Arati Pal, Jayanti Pal, Gita
Pradhan, against Prasanta Pal, Niranjan Pal and
Shantilata Pal, submission of the learned counsel for
 Page 66 of 69 .

the convicts, the age of the convicts, some of the

convicts being women and specially when, the
prosecution has not proved any previous conviction of
said convicts, I deem it proper to inflict some moderate
sentence, which in my considerate opinion would be
sufficient to prevent the convicts from commission of
any similar / graver type of offence in future as well as
to deter public for commission of such offence by taking
the nature of punishment into account. As far as the
accused Deepak Pal is concerned, I am not inclined to
moderate or decrease his sentence due to his active and
aggressive role in execution of the offence.

51. In the result, the convicts namely Arati Pal,

Jayanti Pal, Gita Pradhan of village­Khuranatutha,
PS­Ersama, Jagatsinghpur, are sentenced to undergo
R.I for 6 months and to pay a fine of Rs.1,000/­ (Rupees
one thousand) each only i.d. to one month R.I for the
offence punishable U/s.323 I.P.C. The convict namely
Deepak Pal of village­Khuranatutha, PS­Ersama,
Jagatsinghpur, is sentenced to undergo R.I for one
year and to pay a fine of Rs.1,000/­ (Rupees one
thousand) only i.d. to one month R.I for the offence
punishable U/s.323 I.P.C. The U.T.P period if any be
 Page 67 of 69 .

set off against the substantive sentence imposed under

the provision of Sec. 428 Cr.P.C.

52. Before parting with my verdict, I

remind myself regarding the provision of Sec.357
Cr.P.C for awarding compensation to the
victims/injured persons. It goes without saying
that the injured persons namely Prasanta Pal,
Niranjan Pal and Shantilata Pal have sustained
injuries on their person due to the gruesome
attack by the above named convicts. Obviously,
they would have undergone medical treatment and
must have incurred expenses to that respect. It is
necessary for the ends of justice to compensate
something to them by way of money so as to
mitigate their grief as well as to make them aware
regarding the smooth administration of the
criminal justice in the court. So a sum of Rs.3,000/­
(Rupees Nine thousand), in total, be paid to the
injured person namely Prasanta Pal, Niranjan Pal
and Shantilata Pal , of village­Khurantatutha, PS­
Ersama, Dist. Jagatsinghpur out of the total fine
amount of Rs.4,000/­(Rupees Four Thousand)
imposed on the convicts, if paid by them.
 Page 68 of 69 .

Civil Judge (Senior Division)­cum­A.S.J.,

Kujang.

The judgment is transcribed to my dictation,

computerized, corrected by me and pronounced in the open
Court today on this the 10th day of January, 2019 given
under my hand and seal of this Court.

Civil Judge (Senior Division)­cum­A.S.J.,

Kujang.

List of P.Ws examined:

P.W. 1 : Santilata Pal

P.W. 2 : Prasant Pal
P.W. 3 : Niranjan Pal
P.W. 4 : Maina Pal
P.W. 5 : Maheswar Majhi
P.W. 6 : Bijay Pal
P.W. 7 : Dr. Dillip Kumar Agar
P.W. 8 : Bijay Sutar
P.W. 9 : Bibhuti Bhusan Sethy

List of D.Ws examined:

D.W. 1 : Jayanti Pal

D.W. 2 : Babaji Pradhan
D.W. 3 : Harekrushna Mandal
D.W. 4 : Gita Pradhan
 Page 69 of 69 .

D.W. 5 : Deepak Pal

List of Exts. marked on behalf of prosecution:

Ext. 1 : FIR
Ext. 1/1 : Signature of P.W. 1 on Ext. 1
Ext. 2 : X­Ray report
Ext. 3 : Injury Report
Ext. 3/1 : Signature of P.W. 7 on Ext. 3
Ext. 4 : Injury Report
Ext. 4/1 : Signature of P.W. 7 on Ext. 4
Ext. 5 : Injury Report
Ext. 5/1 : Signature of P.W. 7 on Ext. 5
Ext. A : Injury Report of Dr. Amiya
Ext. A/1 : Signature of Dr. Amiya
Ext. 1/2 : Endorsement of IIC
Ext. 6 : Formal FIR
Ext. 6/1 : Endorsement of IIC
Ext. 5/2 : Signature of P.W. 9 on Ext. 5
Ext. 3/2 : Signature of P.W. 9 on Ext. 3
Ext. 4/2 : Signature of P.W. 9 on Ext. 4
Ext. 7 : Spot Map
Ext. 7/1 : Signature of P.W. 9 on Ext. 7.
List of Exts. marked on behalf of defence:
Ext. A : Signature of P.W. 2 in the minutes of village
meeting (Photocopy)
List of M.Os marked on behalf of prosecution:

: Nil

Civil Judge (Senior Division)

­cum­A.S.J., Kujang.