Bijaya Vs State

IN THE HIGH COURT OF ORISSA, CUTTACK

Criminal Appeal No.252 of 1998

An appeal from the judgment and order dated 26.09.1998 passed by the Sessions Judge, Sundargarh in Sessions Trial No.47 of 1997.

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Satyajit Mohapatra	.......	Appellant
	-Versus-
State of Odisha	.......	Respondent
For Appellant:	-	Mr. Akash Bhuyan Advocate
For Respondent:	-	Mr. Sarat Ch. Pradhan Addl. Standing Counsel

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Criminal Appeal No.290 of 1998

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Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Jul-2025 10:52:51

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Bijaya Kumar Rout	.......	Appellant
	-Versus-
State of Odisha	.......	Respondent
For Appellant:	-	Mr. Akash Bhuyan Advocate
For Respondent: ----	- --------------	Mr. Sarat Ch. Pradhan Addl. Standing Counsel ---

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Criminal Appeal Nos.252 & 290 of 1998

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P R E S E N T:

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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AND

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THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH

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--------------------------------------------------------------------------------------Date of Hearing & Date of Judgment: 22.07.2025 ---------------------------------------------------------------------------------------

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By the Bench: Satyajit Mohapatra and Jogeswar Suna were the appellants in Criminal Appeal No.252 of 1998 and Bijaya Kumar Rout and A. Jagadiswar Rao were the appellants in Criminal Appeal No.290 of 1998. Appellant Jogeswar Suna in Criminal Appeal No.252 of 1998 and appellant A. Jagadiswar Rao in Criminal Appeal No.290 of 1998 expired during the pendency of appeals and as such, as per order dated 10.09.2024, the criminal appeals have been directed to be abated in respect of those appellants. Thus Criminal Appeal No.252 of 1998 survives only in respect of appellant Satyajit Mohapatra and Criminal Appeal No.290 of 1998 survives only in respect of appellant Bijaya Kumar Rout.

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All the four i.e. Satyajit Mohapatra, Jogeswar Suna, Bijaya Kumar Rout and A. Jagadiswar Rao faced trial in the Court of learned Sessions Judge, Sundargarh in Sessions Trial No.47 of 1997 for the offence punishable under section 302 read with section 34 of the Indian Penal Code (hereafter „I.P.C.‟) on the

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accusation that on 29.10.1996 at about 1.00 p.m. at Sundargarh Bus Stand area, in front of Debasis Lodge, in furtherance of their common intention, they committed the murder of Amiya Das (hereinafter „the deceased‟). The appellants were also additionally charged for the offence under section 307 read with section 34 of the I.P.C. on the accusation of attempting to commit murder of M.D. Suresh Purty (P.W.1), the informant in the case and for the offences under sections 25/27 of the Arms Act on the accusation that they were found in unlawful possession of fire arms i.e. pistols and also they have used fire arms i.e. pistols which resulted in the death of the deceased.

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The learned trial Court vide impugned judgment and order dated 26.09.1998 found the appellants guilty of the offences charged and sentenced each of them to undergo R.I. for life for the offence under section 302 read with section 34 of the Indian Penal Code, to undergo R.I. for seven years each for the offence under section 307 read with section 34 of the Indian Penal Code and both the sentences were directed to be run concurrently. Appellants Bijaya Kumar Rout and A. Jagadiswar Rao were also sentenced to undergo R.I. for a period of five years each for the offence under section 27 of the Arms Act, which was directed to run concurrently along with the sentences

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awarded for the offence under sections 302/307/34 of the Indian Penal Code.

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Prosecution Case :

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The prosecution case, as per the oral report of P.W.1 M.D. Suresh Purty submitted before Bijaya Kumar Nayak (P.W.18), S.I. of Police, Town P.S., Sundargarh on 29.10.1996, while he was undergoing treatment in the District Headquarters Hospital, Sundargarh, in short, is that he was the driver of the vehicle of the deceased bearing registration no. OR-05A 1867. On 27.10.1996 (Sunday) morning, he brought the deceased and P.W.8 Ahindra Kumar Adhya in the car from Rourkela to Sundargarh and both the deceased and P.W.8 stayed in room no.32 of Debasis Lodge. They had come in connection with a murder case to Sundargarh Court. On 28.10.1996, P.W.1 took both of them to Sundargarh Court and after the Court work was finished, he brought them back to Debasis Lodge. On 29.10.1996, again he took them to Sundargarh Court at about 10.00 a.m. and they returned to lodge at 12.00 noon and at about 1.00 p.m., the deceased decided to return to Rourkela and accordingly, P.W.1 brought the luggage from the room of the lodge and loaded the same in the car and sat in the driver‟s seat. At first, P.W.8 came and sat in the left side of rear seat and five

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to seven minutes thereafter, the deceased came and he was trying to sit to the right side of the rear seat and at that time, someone suddenly fired gunshot at his right side chest and the told, “you killed my father Ananta Rout so also killed my brother and assisted in the acquittal of the culprits in that case. I am his son. I will not spare to you.” After such threatening words, they again came to assault P.W.8 and when P.W.1 got down from the car and came to the rescue of the deceased, he was caught hold off by the appellant Bijaya Kumar Rout from his back. Out of the three other culprits, who were there with the appellant Bijaya Kumar Rout, one of them tried to kill P.W.1 and assaulted P.W.1 on his head by means of a sharp cutting weapon. At that time, the deceased was shouting, “Bijaya Rout shot me. I am going to die. Please save me”. When the persons of the locality rushed near the car, the culprits fled away leaving their car bearing registration no. OR-E 510 as the driver was not there in the car and he had left the car seeing the incident for which the culprits finding no other alternative, ran towards Rourkela road. The people congregated at the spot and someone in his car took the deceased as well as the informant (P.W.1) to the hospital, but by the time they reached at the hospital, the deceased had already expired and there was bleeding injury from his chest and from

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the back. It is further stated in the first information report that in connection with the murder case of the father of appellant Bijaya Kumar Rout, there was hostility between the parties and for such reason, the incident took place. The dead body of the deceased was lying on the varandah of the hospital. It is stated that four persons participated in the crime and one of them was appellant Bijay Kumar Rout.

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On the basis of the oral report submitted by P.W.1, P.W.18 (I.O.) reduced the same into writing and sent the same to the I.I.C. for its registration and accordingly, the I.I.C. registered Sundargarh Town P.S. Case No.120 dated 29.10.1996 under sections 302/307/34 of the Indian Penal Code and sections 25/27 of the Arms Act against the appellant Bijaya Kumar Rout and three others.

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The I.I.C. directed P.W.18 to continue the investigation and accordingly, P.W.18 proceeded to the spot for apprehending the accused persons directing the constable U.N. Laria (P.W.14) to guard the dead body of the deceased. On reaching at the spot, he came to know that the S.P. and other police officers and public were chasing the accused persons and accordingly, he proceeded in the same direction and in course of chase, P.W.18 apprehended the appellants at different parts of

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the Subalaya Jungle at about 2.45 p.m. and brought them to the hospital. He held inquest over the dead body of the deceased and prepared the inquest report vide Ext.3. P.W.18 then dispatched the dead body of the deceased for post mortem examination, examined the witnesses including P.W.1, the informant, who is also an injured in the case and was undergoing treatment in the hospital. The statements of the appellants Bijaya Kumar Rout, A. Jagadiswar Rao, Satyajit Mohapatra and Jogeswar Rao were recorded under section 27 of the Evidence Act as per Exts.19/1, 20/1, 21/1 & 22/1 respectively. As per the statement of appellant Bijaya Kumar Rout, one pistol (country made) was seized from Subalaya Jungle containing one empty cartridge in its barrel, one country made six chamber revolver (M.O.III) containing one empty cartridge and two numbers of life cartridges in its chamber, one life cartridge of pistol having a firing pin mark and other life cartridge of a pistol containing no sign of firing pin mark as per seizure list Ext.23/1. On the basis of the statement of appellant A. Jagadiswar Rao and at his instance, one country made pistol with white wooden grip (M.O.IV) containing one life cartridge was recovered from inside the bush as per the seizure list Ext.24/1. Similarly, on the basis of the statement of appellant Jogeswar Suna and at his instance,

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one plastic yellow handle barber razor (M.O.V) and one spring knife with a handle of red and black print (M.O.VI) were recovered inside the bush and seized as per seizure list Ext.25/1. Similarly, on the basis of the statement of appellant Satyajit Mohapatra and at his instance being led by him, one iron Bhujali fitted with a wooden handle (M.O.I) was seized from inside the bush leading towards Rourkela as per seizure list Ext.26/1. P.W.18 seized one Ambassador Car bearing registration no.ORE-510 in front of Debasis Lodge as per seizure list Ext.4. On 29.10.1996, P.W.18 sent the appellants Bijaya Kumar Rout, A. Jagadiswar Rao and Jogeswar Suna for their medical examination. P.W.18 also seized Ambassador Car bearing registration no.OR-05A 1867 of the deceased as per seizure list Ext.6/1. P.W.18 sent requisition to D.F.S.L., Rourkela for deputing a Scientific Officer to come to the police station to examine the seized cars, the spot and the weapons of offence and he also seized one bullet of a pistol after being produced by one constable from the doctor having collected from the dead body of the deceased as per seizure list Ext.7/2. P.W.18 sent the bullet (M.O.IX) and wearing apparels of the deceased i.e. shirt (M.O.VII) and banion (M.O.VIII) to the R.F.S.L., Sambalpur for examination through Court. Thereafter, P.W.18 forwarded the

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appellants to the Court on 30.10.1996. On 31.10.1996, P.W.18 made a prayer to the learned S.D.J.M., Sundargarh to conduct T.I. parade in respect of the appellants. He also seized the register of customers i.e. entry and exit of the Debasis Lodge vide Ext.5. P.W.18 seized the Bhujali (M.O.I) and sent the same to the doctor for examination and opinion and on the same day, he received the injury reports of the appellants, who were sent for their medical examination. P.W.18 sent the seized articles to R.F.S.L., Sambalpur through learned S.D.J.M., Sundargarh for examination and received the C.E. report vide Ext.32. P.W.18 released the seized vehicle in the zima of one Surendra Das as per Zimanama Ext.33. After receipt of post mortem examination report, P.W.18 made a query to the doctor regarding possibility of the injury by bullet shot noticed on the deceased. P.W.18 also released the seized vehicle (OR-E 510) in the zima of P.W.15 as per Zimanama Ext.34 and released the register of Debasis Lodge in zima of P.W.4 as per Zimanama Ext.35 and he received the sanction order of the District Magistrate to prosecute the appellants under the Arms Act and on completion of investigation, he submitted charge sheet against the appellants on 24.01.1997.

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Framing of Charges :

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After submission of charge sheet, following due procedure, the case was committed to the Court of Session where the learned trial Court framed charges as aforesaid and since the accused persons pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prove their guilt.

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Prosecution Witnesses, Exhibits & Material Objects :

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In order to prove its case, the prosecution examined as many as eighteen witnesses.

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P.W.1 M.D. Suresh Pusty is the informant in the case

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and he is an eye witness to the occurrence. He supported the prosecution case.

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P.W.2 Kunu Tripathy is a hearsay witness and P.W.5 Srimanta Kumar Panda is a post-occurrence witness. They partly supported the prosecution case for which they were declared hostile by the prosecution.

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P.W.3 Soumen Barik is a witness to the inquest over

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the dead body of the deceased Amiya Das as per inquest report marked as Ext.3.

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P.W.4 Shaktipada Jena & P.W.17 Suresh Chandra

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Prusty are the witnesses to the seizure of one Ambassador car

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bearing registration no.OR-E 510 and one register of the Debasis lodge vide Exts.4 & 5 respectively.

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P.W.6 Viku Oram was the Gramarakhi of Sundargarh

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Town P.S. He is a witness to the seizure of one gold ring, pant and shirt as per seizure list Ext.7.

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P.W.7 Raju Ghasi & P.W.9 Pradeep Kumar Sahu are

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the witnesses to the seizure of one shirt and one banion of deceased as per seizure list Ext.2.

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P.W.8 Ahindra Kumar Adhya is an Advocate, who had

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been to the Court of Sessions Judge, Sundargarh in connection with a case matter along with the deceased. He is an eye witness to the occurrence and supported the prosecution case.

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P.W.10 Gopal Chandra Patnaik, the S.D.J.M.,

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Sundargarh conducted test identification parade in respect of the appellants inside the Headquarters District Jail, Sunargarh and proved his report vide Ext.9.

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P.W.11 Dr. Manorama Satapathy was the Asst.

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Surgeon attached to Dist. Headquarters Hospital, Sundargarh, who examined P.W.1 and proved her report vide Ext.12. She also proved her opinion report vide Ext.13.

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P.W.12 Dillip Kumar Mishra was the Assistant

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Surgeon attached to District Headquarters Hospital, Sundargarh,

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who conducted post mortem over the dead body of the deceased Amiya Das and proved his report vide Ext.14.

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P.W.13 Prasanta Kumar Pradhan was the Scientific Officer attached to District Forensic Science Laboratory, Rourkela, who submitted his report vide Ext.16 after taking photographs of the chance finger prints found on the body of the car bearing registration no.OR-05A 1867 and also took the finger prints of all the appellants and sent it to the Director of Finger Print Expert, Bhubaneswar for comparison. He also examined the seized fire arm, cartridges and advised the I.O. to send it to Director, RFSL, Sambalpur for ballistic examination. He proved his reports vide Exts.17 & 18.

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P.W.14 Udayanath Laria was the constable attached to Town P.S. Sundargarh, who escorted the dead body of the deceased Amiya Das for post mortem examination and after the post mortem was over, he brought the wearing apparels of the deceased and produced it before P.W.18. He is a witness of the seizure of one full shirt, one banion, one full pant and a chadi of deceased as per seizure list Ext.7/2.

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P.W.15 Birsa Oram and P.W.16 Pradeep Kumar Sahu pleaded their ignorance about the case for which they were declared hostile by the prosecution.

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P.W.18 Bijaya Kumar Nayak was the Sub-Inspector

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of Police attached to Town police station, Sundargarh and he is the Investigating Officer in the case.

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The prosecution exhibited thirty nine documents. Ext.1 is the F.I.R., Ext.2 is the seizure list in respect of one shirt and ganji of P.W.1, Ext.3 is the inquest report, Ext.4 is the seizure list in respect of one car bearing regd. No.OR-E 510, Ext.5 is the seizure list in respect of register of one Debasis Lodge, Ext.6/1 is the seizure list in respect of one car bearing regd. No.OR-15A 1867, Ext.7/2 is the seizure list in respect of one gold ring, pant and shirt of deceased, Ext.8 is the S.R. summons issued to P.W.1, Ext.9 is the T.I. parade report, Ext.10 is the statement of P.W.15 recorded under section 164 Cr.P.C. by P.W.10, Ext.11 is the statement of Ranjan Kumar Das recorded under section 164 Cr.P.C. by P.W.10, Ext.12 is the injury report submitted by P.W.11, Ext.13 is the opinion report of P.W.11, Ext.14 is the post mortem report, Ext.15 is the query report of P.W.18, Ext.15/1 is the report of P.W.12, Ext.16 is the spot visit report of P.W.13, Exts.17 & 18 are the examination reports of P.W.13, Ext.19/1 is the confessional statement of appellant Bijaya Kumar Rout, Ext.20/1 is the confessional statement of appellant A. Jagadiswar Rao, Ext.21/1 is the

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confessional statement of appellant Satyajit Mohapatra, Ext.22/1 confessional statement of appellant Jogeswar Suna, Ext.23/1 is the seizure list in respect of M.O.II and M.O.III, Ext.24/1 is the seizure list in respect of M.O.IV, Ext.25/1 is the seizure list in respect of M.O.V and M.O.VI. Ext.26/1 is the seizure list in respect of M.O.I, Ext.27 is the dead body challan, Ext.28 is the command certificate, Ext.29 is the copy of V.H.F. message, Ext.30, Ext.33, Ext.34 & 35 are the Zimanamas, Ext.31 is the office copy of forwarding report of S.D.J.M., Sundargarh, Ext.32 Chemical Examiner‟s report, Ext.36 is the sanction order, Ext.37 is the statement of P.W.15 recorded under section 164 Cr.P.C., Ext.38 is the statement of P.W.16 recorded under section 164 Cr.P.C. and Ext.39 is the report of finger print expert.

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The prosecution also proved nine material objects. M.O.I is the bhujali, M.O.II is the revolver, M.O.III and M.O.IV are the pistols, M.O.V is the razor, M.O.VI is the spring knife, M.O.VII is the shirt, M.O.VIII is the banian and M.O.IX is the bullet.

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Defence Plea :

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The defence plea of the appellants is of complete denial to the prosecution case. The appellant Satyajit Mohapatra took a specific stand in his 313 Cr.P.C. statement that while he

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was returning from tuition at about 9.00 p.m. on 29.10.1996 at Rourkela, he was caught and brought by the police and he could not assign any reason why he had been implicated in this case. Similarly, the appellant Bijaya Kumar Rout took a stand in his 313 Cr.P.C. statement that he was taken to the hospital where P.W.1 was undergoing treatment and therefore, P.W.1 could be able to identify him in the T.I. parade. He also took a stand that while he was in his house at Rourkela, he was brought in the night of 29.10.1996 and falsely implicated in the case as his father was not pulling on well with the deceased Amiya Das. He also took another stand that the deceased was one of the accused in the murder case of his father and after his acquittal from that case, he was killed by somebody but the police instead of apprehending the real killer, implicated him in the case.

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Findings of the Trial Court:

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The learned trial Court after assessing the oral as well as documentary evidence available on record, came to hold that the deceased had died a homicidal death and considering the evidence of the eye witnesses to the occurrence i.e. P.W.1 so also P.W.8 and the identification made by P.W.1 in the T.I. parade, which was conducted by P.W.10 and the leading to discovery of the weapons of offences, found the appellants guilty

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of the offences charged under sections 302/307/34 of the Indian Penal Code and the appellant Bijaya Kumar Rout along with A. Jagadiswar Rao were additionally found guilty under section 27 of the Arms Act.

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Contentions of the parties :

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Mr. Akash Bhuyan, learned counsel appearing for the appellants in both the appeals argued that so far as the appellant Satyajit Mohapatra in Criminal Appeal No.252 of 1998 is concerned, there is absolutely no material on record against him relating to his involvement in the crime. Neither his name finds place in the first information report as an accused nor he has been identified in the T.I. parade nor have any of the two eye witnesses uttered his name at the time of identification in Court. The only material available on record against the appellant Satyajit Mohapatra is that, at his instance, Bhujali (M.O.I) was recovered by the I.O. (P.W.18), which on chemical examination was found to be containing human blood but the grouping could not be ascertained as it has been deteriorated and no link between the seizure of Bhujali (M.O.I) and the crime was established and therefore, the conviction of appellant Satyajit Mohapatra is not sustainable in the eyes of law. He further argued that so far as the appellant Bijaya Kumar Rout is

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concerned, the learned trial Court has mainly relied upon the evidence of P.W.1 but the specific defence plea is that the said appellant was shown to P.W.1 before the T.I. parade and therefore, the test identification parade conducted by P.W.10 lost all its sanctity and the learned trial Court should not have relied upon the same. Learned counsel further argued that it is a fit case where benefit of doubt should be extended in favour of the appellant.

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Mr. Sarat Chandra Pradhan, learned Addl. Standing Counsel appearing for the State of Odisha, on the other hand, supported the impugned judgment and argued that not only the name of appellant Bijaya Kumar Rout finds place in the first information report as the deceased uttered his name to be his assailant, which can be used as dying declaration but also he was identified in the T.I. parade so also in Court by P.W.1 and the link of appellant Satyajit Mohapatra with the crime has been established with the recovery of iron Bhujali fitted with wooden handle (M.O.I) at his instance from inside the bush, which was used in the crime and therefore, it is not a case to interfere with the impugned judgment and order of conviction and as such the appeals should be dismissed.

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Whether the deceased met with a homicidal death? :

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Adverting to the contentions raised by the learned counsel for the respective parties, let us first examine the evidence on record as to how far the prosecution has successfully proved that the deceased met with a homicidal death.

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P.W.12 conducted the post mortem examination over the dead body of the deceased Amiya Das on 29.10.1996 in District Headquarters Hospital, Sundargarh and he has noticed the following injuries:

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External injuries:

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“ i. There was one entry wound lacerated in nature of the size of 1.5 c.m. x 5 c.m. x chest cavity, 2 c.ms. medial to the right nipple of the chest. The margins of the wound were inverted. Blood coming out from the wound on movement of the body;

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ii. There was one exist wound which was lacerated of the size of 7.5 c.m. x 2 c.m. x chest cavity over the back on the left side 2” posterior to the mid posterior axillary line. The margins of the wound were everted and blood was coming out of the wound on movement of the body. Upon opening the chest, the whole chest cavity was found to be filled with fluid blood. There

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was fracture of the fourth rib interiorly on the right side corresponding to wound no.1 and bone chips were present under the wound. The right auricle of the heart was lacerated and also the left ventricle of the heart was lacerated. Both the chambers of the heart were empty. The left lung was lacerated at the lower lobe region. There was also fracture of the 7^th rib at the back on the left side corresponding to injury no.2. Multiple bone fragments were present below the wound. There was laceration of the adjacent muscle near the wound no.2. All the abdominal visceras were intact and normal. The stomach was full of food particle. The bladder was empty. The scalp, skull and vertebra were intact and normal. The brain and spinal cord were intact and normal.”

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The doctor opined the cause of death was due to shock and hemorrhage due to injury to the vital organs like heart and lungs due to fire arm injury. He further opined that all the injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature. He proved the post mortem examination report vide Ext.14.

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The I.O. (P.W.18) also made a query to the doctor (P.W.12) regarding the possibility of the injuries of the deceased by the bullet and the doctor (P.W.12) has opined that the

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injuries were possible by bullet and proved the query report vide Ext.15/1.

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Nothing has been brought in the cross-examination to demolish the evidence of P.W.12. In fact, learned counsel for the appellants has not challenged the findings arrived at by the doctor (P.W.12) in his post mortem report (Ext.14).

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In view of the post mortem report (Ext.14), inquest report (Ext.3) and the evidence of the doctor (P.W.12) so also eye witnesses account, we are of the humble view that the learned trial Court has rightly came to the conclusion that the deceased met with a homicidal death.

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Assessment of evidence of eye witnesses P.W.1 and

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P.W.8 :

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The two star witnesses examined on behalf of the prosecution are P.W.1 M. D. Suresh Purty, the informant of the case and P.W.8 Ahindra Kumar Adhya and they are the eye witnesses to the occurrence.

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P.W.1, the informant has stated in his evidence that he had taken the deceased and P.W.8 in a car to Debasis Lodge and then from Debasis Lodge to Court premises and he was staying in room no.35 of the Debasis Lodge and on the date of

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occurrence, he was sitting in the driver‟s seat inside the car and P.W.8 was sitting in the rear seat in the left side and deceased came from the lodge to the left side of the car and when P.W.8 told him to sit in the right side, the deceased was going to sit on the right side and at that point of time, somebody fired on the chest of the deceased and he found that the appellant Bijaya Kumar Rout was standing and fired on the chest of the deceased by a revolver. At that time, the deceased shouting “MAA LO MOTE BANCHAO, BIJAYA ROUT MOTE GULI MARILA” and then the appellant Bijaya Kumar Rout assaulted the deceased on his head by the revolver on the left side. He further stated that when he caught hold of appellant Bijaya Kumar Rout, the appellant A. Jagadiswar Rao dealt Bhujali (M.O.I) blow on his head and when at that point of time, other persons came running to the scene of occurrence, on seeing them, the accused persons left the place and went near the car. He further stated that the appellant Bijaya Kumar Rout told him that “MO BAPA KU MARITHILA, MORA BHAI KU MAREI DELA, COURT RE MUDULA MANANKU KHALAS KAREI DELA, MU TARA PUA BIJAYA ROUT, MU TATE CHHADIBI NAHIN” and at that point of time, the driver of the car in which the appellant Bijaya Kumar Rout had come was not there and he had gone somewhere and the accused persons

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ran towards Rourkela. He further stated that T.I. parade was conducted in which he identified the appellant Bijaya Kumar Rout so also the appellant A. Jagadiswar Rao. He also identified them in Court.

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In the cross-examination, P.W.1 has stated that appellant Bijay Kumar Rout fired bullet from the revolver keeping it on the chest of the deceased who was standing close to the car door. He further stated that he did not know the appellant Bijay Kumar Rout or Satyajit Mohapatra earlier prior to the occurrence. He further stated that there were many shops near the place of occurrence, however no shopkeeper or outsider came to the place of occurrence. He further stated that many outsiders came to the place of occurrence before he was shifted to the hospital. He further stated that he saw the accused persons on the day of occurrence and thereafter he saw them in the T.I. Parade and thereafter in Court on the date of deposition. He stated that he had not given the description and features of the accused persons who had taken part in the occurrence in his F.I.R. and statement.

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Coming to the evidence of P.W.8, he has stated about the occurrence but he stated that he did not know any of the appellants and he has not even participated in the T.I.

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parade. The prosecution has offered no explanation as to why he was not taken as an identifying witness to identify the suspects. Therefore, from his evidence though it is proved that an occurrence had taken place on 29.10.1996 at about 1.00 p.m. in front of Debasis Lodge and the deceased sustained fire arm injury so also P.W.1 sustained injuries on his person by a sharp cutting weapon but the identity of the culprits has not been established from his evidence.

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Appellant Satyajit Mohapatra (CRA No.252 of 1998) :

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The appellant Satyajit Mohapatra in CRA No.252 of 1998 was found guilty under sections 302/307/34 of I.P.C.

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The evidence of P.W.1 is completely silent against him. Neither has he stated anything against appellant Satyajit Mohapatra in the F.I.R. nor in his evidence. P.W.1 was examined by the doctor (P.W.11), who has noticed one incised wound of size 4” x 1“ x 1” fracturing the outer table of the right parietal bone in its whole length transversely near the parietal suture and opined the injury to be grievous in nature and it could have been possible by sharp cutting weapon. The police sent one iron Bhujali (M.O.I) for her opinion regarding possibility of the injury

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Criminal Appeal Nos.252 & 290 of 1998

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sustained by P.W.1 by such weapon and P.W.11 has given her opinion in affirmative.

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Therefore, the presence of P.W.1 on the scene of

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occurrence cannot be doubted as he is an injured witness. However, when none of the two eye witnesses have implicated the appellant Satyajit Mohapatra in connection with the crime and though he was placed in the T.I. parade but not identified and even the deceased had not uttered his name in the dying declaration at the spot and the only evidence available against him is the seizure of Bhujali (M.O.I) at his instance as deposed to by the I.O. (P.W.18) and from the said Bhujali (M.O.I), though human blood was found but the grouping could not be ascertained due to deterioration, in view of such evidence on record, we are of the humble view that since the prosecution has failed to establish any link between the seizure of Bhujali (M.O.I) with the crime in question, on the basis of such evidence, the learned trial Court should not have convicted the appellant under sections 302/307/34 of the I.P.C.

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Most peculiarly, the learned trial Court while arriving at the conclusion of the guilt against the appellant Satyajit Mohapatra, has held that when the Bhujali (M.O.I) was recovered at the instance of the appellant Satyajit Mohapatra

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Criminal Appeal Nos.252 & 290 of 1998

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and the evidence of P.W.1 disclosed that he was assaulted with M.O.I by the appellant A. Jagadiswar Rao, the same can only be considered to be a mistake committed on confusion and as such, no serious notice of the same can be given. We are not inclined to accept such reasoning assigned by the learned trial Court inasmuch as P.W.1 was there at a close distance from the assailant and identified his assailant to be the appellant A. Jagadiswar Rao and he has also identified appellant A. Jagadiswar in the T.I. parade and also in Court during trial and therefore, the learned trial Court seems to have made out a third case by convicting the appellant Satyajit Mohapatra.

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We are of the humble view that the conviction of the appellant Satyajit Mohapatra under sections 302/307/34 of the I.P.C. in absence of any cogent material on record is not sustainable in the eyes of law and accordingly, the same is liable to be set aside and as such, he is acquitted of all the charges.

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Appellant Bijaya Kumar Rout (CRA No.290 of 1998) :

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The appellant Bijaya Kumar Rout in CRA No.290 of 1998 was found guilty under sections 302/307/34 I.P.C. read with section 27 of the Arms Act.

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Criminal Appeal Nos.252 & 290 of 1998

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Apart from the fact that P.W.1 has named him in the F.I.R. on the basis of dying declaration made by the deceased, he also identified him in the T.I. parade so also in Court while deposing and his evidence that the bullet shot was fired by the appellant Bijaya Kumar Rout is getting corroboration from the medical evidence adduced by the doctor (P.W.12), who conducted the post mortem examination. At his instance, the revolver (M.O.II) and the bullets were seized. The contention of the learned counsel for the appellants that appellant Bijaya Kumar Rout was shown to P.W.1 in the hospital for which he could be able to identify him in T.I. Parade, is based on no evidence rather P.W.1 specifically stated in the crossexamination that after the occurrence, he saw the appellant in the T.I. Parade and then on the date of deposition in Court which rules out showing the appellant to him in the hospital. We are of the humble view that the learned trial Court has rightly found him guilty under section 302/307/34 of the I.P.C. so also under section 27 of the Arms Act is quite justified. The submission of the learned counsel for the appellants that other persons present in the scene of occurrence have not been examined to depose that the appellant participated in the crime, cannot be a ground to disbelieve the evidence of P.W.1 as it is quality of evidence

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Criminal Appeal Nos.252 & 290 of 1998

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and not quantity of evidence which is material. Quantity of evidence was never considered to be a test for deciding a criminal trial and the emphasis of Courts is always on quality of evidence. Section 134 of the Evidence Act does not provide for any particular number of witnesses for proving any fact and it would be permissible for the Court to record a finding regarding any particular aspect of the prosecution case on the evidence of a solitary witness, if his evidence is found to be credible, reliable, in tune with the case of the prosecution and inspires implicit confidence. The testimony of a sole witness must be confidenceinspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court. Moreover, testimony of the injured witness stands on a higher pedestal than other witnesses and reliance should be placed on it unless there are strong grounds for rejection of his evidence. In view of the foregoing discussions, we have no hesitation to accept the evidence of P.W.1, the injured eye witness as truthful to convict the appellant Bijaya Kumar Rout.

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Conclusion :

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In the result, Criminal Appeal No.252 of 1998 in respect of appellant Satyajit Mohapatra is allowed. The appellant Satyajit Mohapatra is acquitted of the charges under sections

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Criminal Appeal Nos.252 & 290 of 1998

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302/307/34 of the Indian Penal Code. The appellant, who is on bail by order of the Court, is hereby discharged from liability of the bail bonds and the surety bonds shall also stand cancelled.

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Criminal Appeal No.290 of 1998 is dismissed. The conviction of the appellant Bijaya Kumar Rout under section 302/307/34 of the Indian Penal Code and section 27 of the Arms Act and the sentence passed thereunder stands confirmed. The appellant was directed to be released on bail vide order dated 20.01.2004 in Misc. Case No.174 of 2003. His bail bonds and surety bonds stand cancelled. He shall surrender before the learned trial Court within fifteen days from today to serve out the sentence awarded by the learned trial Court which is confirmed by us, failing which, the learned trial Court shall take appropriate steps for his arrest and send him to judicial custody.

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The trial Court records with a copy of this judgment be sent down to the Court concerned forthwith for information and compliance.

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Before parting with the case, we would like to put on record our appreciation to Mr. Akash Bhuyan, Advocate for both the appellants rendering his valuable help and assistance towards arriving at the decision above mentioned. This Court

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Criminal Appeal Nos.252 & 290 of 1998

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also appreciates the valuable help and assistance provided by Mr. Sarat Chandra Pradhan, Addl. Standing Counsel.

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S.K. Sahoo, J.

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….................................... Chittaranjan Dash, J.

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Orissa High Court, Cuttack. The 22^nd July 2025/Sipun/Rajesh