Abhaya Kumar Nayak Vs State of Orissa

IN THE HIGH COURT OF ORISSA, CUTTACK

CRA No.316 of 2000

An appeal under section 374 Cr.P.C. from the judgment and order dated 21.09.2000 passed by the 2^nd Addl. Sessions Judge, Cuttack in Sessions Trial No.377 of 1998.

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Abhaya Kumar Nayak 2. Akshaya Nayak ....... Appellants -VersusState of Odisha ....... Respondent For Appellants: - Mr. Sabyasachi Mishra Advocate For Respondent: - Mr. Partha Sarathi Nayak Addl. Govt. Advocate -----------------------------

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P R E S E N T:

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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 and Judgment: 28.10.2025

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By the Bench: The appellants namely, Abhaya Kumar Nayak and

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Akshaya Nayak faced trial in the Court of learned 2^nd Additional

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Sessions Judge, Cuttack in Sessions Trial No.377 of 1998 for offences punishable under sections 341, 302 and 307 read with section 34 of the Indian Penal Code (hereinafter ‘IPC’) on the accusation that on 21.01.1998 at about 11.00 p.m. at village Kapileswar Hadisahi under Choudwar Police Station, they wrongfully restrained Fakir Mallik (hereinafter ‘the deceased’), Sukaranjan Mirdha (P.W.1) and Amal Das (P.W.2) in furtherance of their common intention, committed murder of the deceased and also assaulted P.W.1 with an intention to commit his murder.

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The learned trial Court vide impugned judgment and order dated 21.09.2000, though acquitted the Appellants of the charge under section 341/34 of the IPC and also the Appellant No.1 Abhaya Kumar Nayak of the charge under section 307 of the IPC, but found both the Appellants guilty under section 302/34 of the IPC. The Appellant No.2 Akshaya Nayak was found guilty under section 307 of the IPC. Both the Appellants were sentenced to undergo imprisonment for life under section 302/34 of IPC and the Appellant No.2 Akshaya Nayak was sentenced to undergo R.I. for seven years for the offence under section 307 of the IPC and the sentences passed against the Appellant No.2 Akshaya Nayak were directed to run concurrently.

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Prosecution Case :

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The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) lodged by P.W.9 Sailen Mallik, in short, is that on 28.01.1998 at about 11.00 p.m., P.W.9 received message from his younger brother Rabin Mallik (P.W.11) that while the deceased was coming with P.Ws.1 and 2, near village Hadisahi, both the Appellants assaulted them by means of lathi. Receiving such message, P.W.9 rushed to the spot and found the deceased as well as P.W.1 was in bleeding condition. He sent them to the hospital and thereafter came to Choudwar P.S. and lodged the F.I.R., on the basis of which Choudwar P.S. Case No.16 dated 28.01.1998 was registered under sections 341/325/307/34 of the IPC against both the Appellants.

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P.W.13 Akuli Chandra Patra who was the S.I. of Police attached to Choudwar P.S., on the direction of the Officerin-charge of the P.S., took up investigation of the case. During course of investigation, he examined the informant, proceeded to the spot i.e. Kapileswar Sweeper Colony Chowk, prepared the spot map, examined some witnesses, seized blood-stained earth and sample earth from the spot under seizure list Ext.1/1. He searched the house of the Appellants and recovered some photographs of the Appellants which were seized under seizure

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list Ext.2/1. He received information from Mangalabag P.S. about the death of the deceased while he was undergoing treatment at S.C.B. Medical College & Hospital, Cuttack and proceeded to the Medical College. The I.O. seized the blood-stained clothes of P.W.1 at Medical College, while undergoing treatment as per seizure list Ext.11 and also examined P.W.1 and issued injury requisition in respect of the injured (P.W.1). On 31.01.1998, the I.O. arrested both the Appellants. While in police custody, both the Appellants led the police to poultry firm at Kapileswar Village and gave recovery of two bamboo lathies, which were seized under seizure list Ext.6. The Appellants were also medically examined and then forwarded to the Court. The I.O. received the injury report of P.W.1 from the Medical Officer. On 25.04.1998, he sent the seized incriminating materials to S.F.S.L., Bhubaneswar for chemical examination and received the chemical examination report vide Ext.12. He also received the post mortem examination report and the inquest report from Mangalabag P.S., seized the wearing apparels of the Appellants, which were stained with blood under seizure lists Exts.14 and 15. On completion of the investigation, on 28.04.1998 he submitted chargesheet against the Appellants under sections 302, 341, 307/34 of the IPC.

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Framing of charges :

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After submission of the charge sheet, the case was committed to the Court of Session upon compliance of the formalities. The learned trial Court framed charges against both the Appellants as aforesaid and since the Appellants refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them in order to establish their guilt.

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Prosecution Witnesses, Exhibits & Material Objects :

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The prosecution, in order to prove its case, examined as many as thirteen witnesses.

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P.W.1 Sukaranjan Mirdha stated that on 28.01.1998, he along with P.W.2 and the deceased had planned to go for fishing and had gone to the bazar to purchase betel, pan and bidi. However, as the weather was not conducive, all the three returned back towards their Sahi. Near Hadisahi Chhak, the Appellants suddenly started rebuking them. When he intervened, there was an exchange of words. The Appellants came being armed with bamboo lathis, attempted to assault them, but P.W.1 intervened and the Appellants momentarily moved ahead. Believing the situation had subsided, P.W.1 remained near Appellant Akshaya, when Appellant Akshaya suddenly struck him

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on the back of the head with a lathi, causing him to fall. The Appellant Abhaya and his brother attempted to assault him, but the blows struck the ground as he was lying down. Both the Appellants then assaulted the deceased with lathis. By that time, Amal Das (P.W.2) had fallen, having been pushed along with his cycle. After the assault, the Appellants fled away. The deceased sustained bleeding injuries and became unconscious. Amal Das (P.W.2) went to inform the family members of the deceased, who soon arrived at the spot. The injured persons were first taken to Anwar Khan Private Medical at Choudwar, where the doctors advised for immediate shifting of the injured to Cuttack. Owing to the seriousness of the condition of the deceased, he and the deceased were taken to S.C.B. Medical College and Hospital in the early morning, where the deceased succumbed to the injuries.

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P.W.2 Amal Das stated that the Appellants assaulted

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the deceased resulting in his death. The incident took place near Hadisahi Chhak at Nuasahi, while he, P.W.1 and the deceased were returning from Tarini Chhak Bazar. They had planned to go for fishing and had gone to the market to purchase betel, pan and cigarettes, but cancelled the plan for fishing due to cold weather. They were returning on two cycles. At the Chhak, they

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saw a quarrel involving Sukaranjan (P.W.1), Biranchi, Kulia and Basanta. When they approached, the Appellants abused them, calling them “Jangali-Fangali.” A quarrel ensued between Sukaranjan (P.W.1) and the Appellant Akshaya. As the three were leaving, Appellant Akshaya struck the deceased on the head with a bamboo lathi about two cubits long. When the deceased tried to intervene further, both the Appellants assaulted him with lathis bringing the same from a nearby place. During the commotion, the cycles got pushed, causing him to fall and he became unconscious. On regaining consciousness, he saw that the Appellants had fled away and both P.W.1 and the deceased were lying injured. He informed Robin Mallik (P.W.11), the deceased’s younger brother. The injured were taken to Anwar Khan Medical and then referred to S.C.B. Medical College and Hospital, where the deceased died early on the next morning.

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P.W.3 Brajabandhu Nayak stated that the police showed him some photographs and blood-stained earth in the P.S. and asked him to sign in a paper and he signed.

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P.W.4 Dr. Bhubanananda Moharana was the Casualty Medical Officer of SCB Medical College, Cuttack. He stated that

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on 28.01.1998, he was on duty from 10 a.m. to 8:00 p.m. when he received the injured Sukaranjan Mirdha (P.W.1) in the Casualty at 11:35 p.m. on being referred from Jansevak Hospital, Choudwar with complain of head reeling. He further stated that the patient was conscious but referred for surgical intervention by the Jansevak Nursing home and he was kept for observation in the casualty. He also stated that when the injured was received in the casualty, he had multiple abrasions on the face and stitched wound in the occipital region of the head and he had no head injury. Later on, the police requisition was placed before him and on the very day, with reference to OPD ticket, he prepared the injury report marked as Ext.3.

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P.W.5 Dr. Akhay Ku. Patra, Blood Bank Medical Officer, stated that on the requisition of the Professor and Head of the Department, F.M.T., he collected the blood samples of Appellant Abhaya Naik and conducted blood grouping. Abhaya’s blood group was found to be B positive, while the other sample showed AB positive. He prepared the respective reports, marked as Exts.4 and 5.

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P.W.6 Gouranga Charan Jena stated that he knew the Appellants, who were the residents of his Sahi as well as

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Sailen Mallik (P.W.9), the deceased Fakir Mallik, and the injured Sukaranjan Mirdha (P.W.1). He deposed that on the day following the occurrence, the police arrived in their Sahi at about 6:30 p.m. along with both the Appellants. The police questioned the Appellants about the lathis used in the assault. The Appellants disclosed that they had used a bamboo lathi and a wooden lathi, which they had concealed behind their house near a broiler farm beneath an Amari bush. The Appellants then led the police to the spot and the Appellant Akshaya produced both the lathis. P.W.6 identified the lathis. The police seized both lathis and prepared a seizure list, which P.W.6 signed after knowing its contents.

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P.W.7 Dr. Aktar Hussain Khan stated that his father

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had established a Nursing Home at Choudwar known as Jana Sevak Nursing Home, also referred to as Anwar Babu Hospital. He was managing the Nursing Home along with others and routinely attended to patients there. He deposed that on the relevant day, three to four persons had come to the hospital. He further explained that whenever they were not in a position to treat a patient, they would advise the patient to proceed to S.C.B. Medical College and Hospital.

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P.W.8 Dr. Nirupama Samantaray, the Assistant

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Professor of Department of F.M.T., SCB Medical College and Hospital stated that on 29.01.1998 at 2 p.m., she conducted P.M. examination over the dead body of Fakir Mallik of Kapileswar Nuasahi, P.S. Choudwar, the dead body was being identified by Constable No.142 Loknath Padhi and Salendra Mallik, brother of the deceased.

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P.W.9 Sailen Mallik stated that on 28th January

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1998, in between 10:30 and 11:00 p.m., the Appellants assaulted his brother Fakir, who later died in the hospital. He stated that around 11:00 p.m., while he was preparing to go to bed after dinner, his brother Rabin (P.W.11) informed him that the Appellants had assaulted the deceased and left him near Hadi Sahi Road. He immediately proceeded to the spot along with his brothers and several villagers. On arrival, he found the deceased and Sukaranjan Mirdha (P.W.1) were lying on the ground with bleeding injuries. He noted that P.W.1 had injuries on the back of his head but was conscious and able to speak. The deceased, however, had bleeding injuries on his head and his right hand appeared fractured; he was unable to speak. P.W.9 shifted both injured persons on a trolley to Jana Sevak Nursing Home. Upon the doctor’s advice to lodge a report, he

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had the written report scribed by Rajat Kumar Panda of his village as per his instructions and submitted it at the police station. The police directed that the injured to be taken to S.C.B. Medical College and Hospital, Cuttack due to their critical condition and accordingly both the injured were shifted, but the deceased succumbed to his injuries on the early morning of 29.01.1998. He further stated that P.W.1 was also admitted at Cuttack Medical.

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P.W.10 Sandhya Mallik, the widow of the deceased stated that on 29^th January 1998, the deceased died and she further stated that her husband was dealing with fish business; that she knew Sukaranjan Mirdha (P.W.1), who is the friend of her husband and was also accompanying her husband to catch fish. She further stated that on 28^th , her husband told her that he was going to catch fish along with P.W.1; that at about 06.00 p.m. in the evening, her husband went to Choudwar to catch fish; that on that night at about 11.00 p.m, Robin Mallik (P.W.11), her brother-in-law came and told that the deceased was lying near Hadisahi and asked her to accompany him to see, but she did not go and her elder brother too told her not to go.

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P.W.11 Rabin Mallik stated that the deceased was

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elder to him and he knew the Appellants. He further stated that on 28.01.1998 night at about 10:30 p.m. while he was in his house, Amal Das (P.W.2) came to his house, called him and told him that the Appellants were assaulting the deceased near Hadi Sahi and then he went to his brother Sailen (P.W.9) and informed that the Appellants were assaulting the deceased near Hadi Sahi and then he along with neighbours and his brother went to the place of occurrence and saw the deceased was lying on the ground with bleeding injury on his back side head and his hand was fractured and P.W.1 was also lying with bleeding injuries on his person. He further stated that they took both the injured in a Trolly to Jana Sevak Nursing Home; that the said nursing home was also known as Anwar Khan nursing home; that on arriving at the Nursing Home, the doctor saw the injured and directed to shift the injured to S.C.B. Medical College and Hospital; that his brother went to Police to report; that Police came and on being told by police to shift the injured, they took both the deceased and injured Sukaranjan (PW.1) to the medical and in the medical, they were treated and in the early morning, the deceased died.

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P.W.12 Debraj Bhuyan stated that on 29.01.1998, he was A.S.I. of Police attached to Medical Out Post, Cuttack and on that day at 6:00 a.m., the I.I.C. Niranjan Swain received a casualty report from Dr. Bhuban Moharana (P.W.4) regarding death of Fakir Mallik; that the IIC registered PS Case No.72/1998 and directed him to take up investigation. He further stated that on that day at 6:30 A.M., he commanded Constable No.142 Lokanath Barik to guard the dead body and at 11 a.m., he held inquest over the dead body and prepared inquest report vide Ext.9.

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P.W.13 Akuli Charan Patra is the S.I. of Police attached to Choudwar Police Station. He stated that on 28.01.1998, the OIC of Choudwar P.S. Sri Saral Kumar Swain registered the FIR on the written report of Sailen Mallik (P.W.9) and directed him to take up investigation of the case. He is the Investigating Officer.

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The prosecution exhibited fifteen documents. Exts.1/1, 2/1, 11, 6, 14, 15 are the seizure lists, Ext.3 is the injury report, Exts.4 and 5 are the examination of blood report of the appellants, Ext.7 is the post mortem report, Ext.8 is the written F.I.R., Ext.9 is the inquest report, Ext.10 is the dead

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body challan, Ext.12 is the chemical examination report and Ext.13 is the spot map.

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The prosecution also proved two material objects. M.O.I is bamboo lathi and M.O.II is the wooden lathi.

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Defence Plea :

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The defence plea of both the Appellants was one of denial.

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Findings of the Trial Court :

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The learned trial Court after considering the evidence of P.W.8, the doctor, who conducted post mortem examination and proved the P.M. Report vide Ext.7, came to hold that the deceased met with a homicidal death. The learned trial Court relied upon the evidence of P.Ws.1 and 2, the eye witnesses to the occurrence and found that the evidence could not be shaken in the cross-examination and it got corroboration from the medical evidence and accordingly, it was held that both the Appellants were the authors of the crime relating to the death of the deceased on account of the assault made by them. The Court further held that the evidence of P.W.11 supported the prosecution case and the evidence relating to the recovery of

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blood-stained lathis (M.Os.I and II) at the instance of the Appellants while in police custody has been considered by the learned trial Court and it was held that the prosecution has proved its case beyond all reasonable doubt against the Appellants that they committed the murder of the deceased and that the Appellant no.2 Akshaya Nayak attempted to commit the murder of P.W.1 by assaulting him. The learned Court, however, held that there was no proof of wrongful confinement of the victim persons by the Appellants so as to attract the provision under section 341 of the IPC. Though the learned defence counsel raised a submission regarding the exercise of right of private defence by the Appellants, who escaped from the attack by P.W.1, but the learned trial Court held such plea not to be acceptable. Accordingly, the learned trial Court passed the impugned judgment holding both the Appellants guilty under sections 302/34 of IPC so also the Appellant No.2 Akshaya Nayak guilty under section 307 of the IPC.

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The written instruction was received from the Inspector-in-Charge of Choudwar P.S. dated 12.08.2025 regarding the death of the Appellant No.2 Akshaya Nayak. As no legal heirs of the Appellant No.2 filed any application seeking leave to continue the Appeal, the Criminal Appeal stood abated

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so far as Appellant No.2 is concerned vide order dated 14.08.2025.

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Contentions of the Parties :

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Mr. Sabyasachi Mishra, learned counsel appearing for Appellant No.1 Abhaya Kumar Nayak contended that from the evidence of P.Ws.1 and 2, it appears that there are lot of contradictions in their version and that the evidence indicates that there was no premeditation on the part of the Appellants to assault the deceased, who were the peaceful interveners. When the deceased intervened and used some language aspersing on their caste, being enraged, the Appellants assaulted the deceased. The learned counsel further argued that from the evidence of P.W.2, it appears that it was Appellant No.2 (dead) who dealt the fatal blow on the head of the deceased by lathi and as per the post mortem report proved by P.W.8, the other injuries are mostly on the non-vital part of the body. He further argued that since the Appellant no.1 has been acquitted of the charge under section 307 of IPC and the fatal blow on the deceased has been attributed against Appellant No.2 (dead), considering the surrounding circumstances under which the offence is stated to have been committed, it cannot be said that the Appellant No.1 intended to commit the murder of the

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deceased and therefore, the case may come within the purview of culpable homicide not amounting to murder without any intention and since the Appellant no.1 has remained in judicial custody for about five years and eight months and he was on bail by virtue of the order of this Court vide order dated 21.10.2003 and the occurrence has taken place way back in the year 1998 and more than 27 years have passed in the meanwhile, considering the role played by the Appellant No.1, the sentence be reduced to the period already undergone.

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Mr. Partha Sarathi Nayak, learned Additional Government Advocate, on the other hand, supported the impugned judgment and submitted that the contradictions which are appearing in the evidence of P.Ws.1 and 2 are minor in nature and since P.W.1 is an injured witness, his presence at the spot cannot be doubted and his evidence is getting absolute corroboration from the medical evidence adduced by P.W.4, who examined P.W.1 at S.C.B. Medical College and Hospital, Cuttack so also by the doctor P.W.8, who conducted post mortem examination and the learned trial Court rightly placed reliance on the evidence of the two eye witnesses P.Ws.1 and 2, who had accompanied the deceased at the relevant time and their evidence has not been shaken in the cross-examination and

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since the deceased was assaulted on the vital part of the body like head and the doctor has specifically stated that the cause of death was on account of craniocerebral injuries and it appears that both the Appellants had participated in the assault of the deceased and since the death on account of the assault has taken place in furtherance of the common intention, the impugned judgment and order of conviction should not be interfered with.

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Whether the deceased died a homicidal death :

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Before adverting to the contentions of the learned counsel for the respective parties on other aspects, let us first examine the evidence on record to see how far the prosecution has successfully established the death of the deceased to be homicidal. Apart from the inquest report (Ext.9), the evidence of P.W.8 Dr. Nirupama Samantaray, Asst. Professor of S.C.B. Medical College & Hospital, Cuttack is very relevant on this issue, who conducted post mortem examination over the dead body of the deceased on 29.01.1998. She noticed the following external injuries:

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“ i) Surgically stitched wound over left side

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temporoparietal region of the scalp around

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which the scalp hair was shaved, the wound was 7 cms. long with stitches wound, situated 7 cms. above the root of left ear and was surrounded by swelling of the scalp over an arms 6 cm. X6 cm.;

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ii) Grazed abrasion 5 cm. X3 cm. situated 1

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cm. below right eye-brow;

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iii) Grazed abrasion 5 cm. X6 cm adjacent to the right angle of the mouth;

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iv) Swellings of left arm with abrased contusion on the dorsal aspect of the forearms 10 cms. below the elbow joint of size 4 cm. X1 cm.;

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v) Abrasion the ulnar boarder of the wrist 1

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cm. X .05 cm.;

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vi) Abrasion of the base of left thumb 1 cm. X 1 cm.;

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vii) Abrasion of left knee 1 cm. X 1 cm.

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On dissection, the following injuries were found:

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i) Corresponding external injury no.1, scalp contusion on the whole of the left temporal and

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parietal, temporal and left occipital region and extending also to adjacent frontal region with haematoma formation 1/2 on thick knees. Left temporalis muscle was contused with blows clots in it.

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ii) Fissure fracture of the skull corresponding 8 cm. on long situation 6 on shove root of the ear. Membrane found intact. Subdural haematoma on whole of the left temporal region and extending to right frontal and adjacent parietal region and was 1 cm. Brain tissue was lacerated over an area of 5 cm. X 5 cm. on with surface contusion in right frontal and temporal lobe, Fracture line extends the base of the skull in left mid-frontal fossa.

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OPINION :

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i) The injuries antemortem in nature should have been by blunt trauma.

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ii) Death was due to coma resulting from the craniocerebral injuries mentioned above. The head injury was fatal in ordinary coursed nature.

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iii) Time since death about 6 to 12 hours at the time of examination.

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iv) The patient was admitted to SCB Medical COPD vide ticket no.0194 dated 18.2.98 for head injury.

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v) The scalp hair and blood sample were collected and preserved and handed over to accompanying constable.”

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P.W.8 opined that all the injuries sustained by the deceased were antemortem in nature and that the death resulted from coma caused by craniocerebral injuries, which were sufficient in the ordinary course of nature to cause death. She further stated that at the time of examination, the estimated time of death was between six to twelve hours. In crossexamination, not a single question has been put to the doctor by the defence.

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The learned counsel for the Appellant has also not challenged before us regarding the homicidal nature of the death. In view of the inquest report, the doctor’s testimony and the findings recorded in the post-mortem report, the conclusion

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reached by the trial Court that the deceased died a homicidal death stands correctly established.

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The prosecution has examined P.W.1 and P.W.2 as the eye witnesses to the occurrence.

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As per the evidence of P.W.1, on the date of occurrence, there was a planning to catch fish with P.W.2 and the deceased and for the said purpose, they had come to the Bazar to take some articles and since it was a chilly weather, they cancelled the programme to go for fishing and they were returning from the Bazar and proceeding to their Sahi. P.W.1 further stated that on the way to their Sahi, near Hadisahi Chhak, the Appellants came and started abusing for which he intervened and there was also exchange of words. He further stated that the Appellant No.1 Abhay went away from the spot and called his brother Appellant No.2 Akshaya and both of them came with bamboo and lathi. P.W.1 further stated that when both of them were trying to assault, he intervened and thereafter both the Appellants went a little ahead. So, he thought that they would not create any trouble. He further stated that while he was standing, Appellant No.2 Akshaya dealt a lathi blow on the back of his head, as a result of which, he sustained

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injuries and fell down. Thereafter, both the Appellants assaulted him by lathi. He also stated that the lathi blow did not strike him as he was lying on the ground and it hit the ground instead. According to this witness, both the Appellants then assaulted the deceased and at that time, P.W.2 fell down on the ground and the Appellants pressed three cycles upon him. After assaulting, the Appellants fled away from the spot. The deceased was lying in an unconscious state with bleeding injuries on his person and P.W.2 went to inform in the house of the deceased for which some persons came and both P.W.1 and the deceased were taken to the private medical at Choudwar in a rickshaw and then they were taken to S.C.B. Medical College and Hospital, Cuttack, where they were given treatment, but while undergoing treatment, the deceased expired on 29.01.1998.

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In the cross-examination, P.W.1 stated that after reaching at sweeper colony Chhak, they saw Kalia and Biranchi of their Sahi and the deceased had exchange of words and when the Appellant No.1 Abhaya came and intervened and the deceased was asked as to why he was quarrelling, the deceased shouted at him saying “Tu Kie Be Third Person” and gave him two pushes. In the cross-examination, it has been further elicited that when there was quarrel between the Appellant No.1 Abhaya

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and the deceased for about 10 to 15 minutes, P.W.1 separated them and the deceased told the Appellant “Hadi Toka Tu Kahinki Bak Bak Karuchu”. The evidence of P.W.1 otherwise has not been demolished in the cross-examination and P.W.4, the doctor who examined P.W.1 at causality of S.C.B. Medical College and Hospital, Cuttack has stated that he noticed multiple abrasions on the face and there was a stitched wound on the occipital region of the head and the patient was discharged from the hospital on 29.01.1998 as there was no head injury. The doctor has proved the injury report marked as Ext.3 so also the OPD ticket marked as Ext.3/2. The defence, in cross-examination, elicited that the injuries on the face were superficial and could be caused by a fall. However, the testimony of P.W.1 that he was assaulted at the spot by the Appellants stood corroborated by the medical evidence of P.W.4. Since the presence of the injured witness (P.W.1) at the scene of occurrence cannot be doubted, his testimony which has withstood the scorching crossexamination, carries a high degree of credibility.

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P.W.2 has stated that he along with P.W.1 and the deceased were returning from Tarini Chhak bazar to their Sahi and at the Chhak, they found Biranchi, Akuli and Basanta and P.W.1 were quarrelling with each other and there was push and

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pull between them and the Appellants came there. He further stated that the Appellant No.2, Akshaya dealt a bamboo blow on the head of the deceased when he intervened and the Appellants also pushed him for which he fell down and both the cycles were lying over him and then the Appellants fled away from the spot. He further stated to have noticed P.W.1 and the deceased were lying on the ground and he went to inform the younger brother of the deceased and that they took the injured persons to the hospital where the deceased died during treatment.

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It has been confronted to P.W.2 and proved through the I.O. (P.W.13) that he has stated before police that when Abhaya interfered with the quarrel, the deceased told “Sala Tu Kie Be Third Person” and gave two blows to Appellant No.1 Abhaya and thereafter Appellant no.1 Abhaya went away from the spot. It has been further proved that he has not stated before Police that Appellant Akshaya dealt bamboo blow to P.W.1 and that the deceased intervened at that time and both the Appellants assaulted him. Though, there are some contradictions appearing in the evidence of the two witnesses, but we find that in material particulars, they corroborate each other and moreover, their evidence that the Appellants participated in the

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assault of the deceased is getting corroboration from the medical evidence adduced by the doctor (P.W.8).

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The learned counsel for the State submitted that the contradictions are very natural and it is not necessary that the witnesses would state in a parrot like versions and therefore, they are very natural witnesses and when they were coming together, their presence at the scene of occurrence cannot be doubted. The same has been reiterated by the Hon’ble Supreme Court in the case of Manoj Suryavanshi -Vrs.- State of Chhattisgarh reported in (2020) 4 Supreme Court Cases 451 , wherein it has held as follows:

¶122

“23....The minor discrepancies and inconsistencies in the statements of the prosecution witnesses and the minor lacuna in the investigation led by the police cannot be a reason for discarding the entire prosecution case, if the evidence is otherwise sufficient and inspiring to bring home the guilt of the accused.

¶123

As observed by this Court in the case of Leela Ram -Vs.- State of Haryana : AIR 1999 SC 3717 , there are bound to be some discrepancies between the narrations of different witnesses, when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. It is further observed that corroboration of evidence with mathematical niceties cannot be expected in

¶124

CRLA No.316 of 2000 Page 26 of 33

¶125

criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless; some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. So, it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive. Therefore, we are of the opinion that the so-called minor discrepancies/ contradictions do not ultimately affect the case of the prosecution. The benefit of such minor discrepancies/contradictions should not go to the accused, more particularly, when from the other evidences on record the guilt of the accused has been established and proved.”

¶126

In view of the evidence of P.W.1 and P.W.2, coupled with the evidence of the doctor (P.W.8), we are of the humble view that the learned trial Court is quite justified in holding that the deceased died on account of the assault of the two Appellants i.e. Appellant no.1 Abhaya Kumar Nayak and Appellant no.2 Akshaya Kumar Nayak (dead).

¶127

Now, coming to the sequence of events and the surrounding circumstances under which the offence is stated to

¶128

CRLA No.316 of 2000 Page 27 of 33

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have been committed, we find that there was no premeditation on the part of the Appellants to assault either the deceased or even to P.W.1. It appears that while there was a quarrel already underway between some persons including P.W.1 and P.W.2 and the deceased were present there, the Appellants came there. They intervened and attempted to pacify the situation, which led to the deceased challenging them. P.W.1 has stated that the deceased used words to the Appellants such as “Tu Kie Be Third Person’’, “ Hadi Toka, Tu Kahinki Bak Bak Karuchu ” and gave two pushes to the Appellant No.1, which might have provoked the Appellants and triggered their retaliation. P.W.2 stated that when they were quarrelling amongst themselves, Appellant No.1 objected and intervened by remaining at a distance of ten cubits from them and Appellant No.2 was also there with him. It has been confronted to P.W.2 and proved through the I.O. (P.W.13) that when the Appellant No.1 interfered in the quarrel, the deceased stated that “ Sala Tu Kie Be Third Person ’’ and gave two blows to the Appellant No.1.

¶130

It has reiterated in more than one cases right from

¶131

K.M. Nanavati -Vs.- State of Maharashtra : AIR 1962 SC

¶132

605 onwards that provocation itself is not enough to reduce the crime from murder to culpable homicide not amounting to

¶133

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murder. In order to convert a case of murder to a case of culpable homicide not amounting to murder, provocation must me such that would temporarily deprive the power of self-control of a "reasonable person". What has also to be seen is the time gap between this alleged provocation and the act of homicide; the kind of weapon used; the number of blows, etc. These are again all questions of facts. There is no standard or test as to what reasonableness should be in these circumstances as this would again be a question of fact to be determined by a Court. Nanavati (supra) answers this question as follows:

¶135

’’84. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country, there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the Court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are

¶136

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satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.

¶138

The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.’’

¶139

The distinction between Part I and Part II is crucial.

¶140

Under section 304 of I.P.C., culpable homicide not amounting to murder is classified into two parts; Part I applies when the act is committed with the intention of causing death or such bodily injury as is likely to cause death. This requires a higher degree of culpability (guilty intention) and Part II applies when the act is committed with the knowledge that the act is likely to cause

¶141

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death, but without the intention to cause death or such bodily injury. This requires only awareness of the likely consequences (guilty knowledge).

¶143

Having regard to the relevant circumstances, in which the altercation unfolded, it appears that the action of the Appellants were under deprivation of the power of self-control by grave and sudden provocation. They were the peaceful intervenors who tried to pacify the dispute, but the deceased used words such as “ Hadi Toka, Tu Kahinki Bak Bak Karuchu ”, “ Sala Tu Kie Be Third Person ’’ and given pushes to the Appellant No.1. Upon consideration of the evidence of P.W.2, it appears that it was Appellant No.2 Akshaya Kumar Nayak (dead) who dealt the lathi blow on the head of the deceased, which the doctor had identified to be the fatal injury. Although there is evidence that both Appellants continued to assault the deceased thereafter, but the injuries inflicted subsequently after the first blow given by the Appellant No.2 on the head, were on the nonvital parts of the body. As discussed earlier, apart from the fatal head injury attributable specifically to Appellant No.2 Akshaya Kumar Nayak (dead), the remaining injuries did not disclose to be serious ones which contributed to the death of the deceased.

¶144

CRLA No.316 of 2000 Page 31 of 33

¶145

Having regard to the overall factual matrix, we are of the considered view that the case falls within Exception 1 to section 300 of the IPC. Consequently, the offence does not attract section 302 IPC. The conviction of the Appellant No.1 is therefore altered from section 302 IPC to section 304 Part I IPC.

¶146

It further appears that the Appellant No.1 was in judicial custody for more than five years and eight months and he was granted bail by this Court vide order dated 21.10.2003. The occurrence took place approximately twenty-seven years ago and the Appellant No.2 who inflicted the fatal blow to the deceased has since dead, by reason of which the appeal against him stood abated. While altering the conviction of the surviving Appellant No.1 Abhaya Kumar Nayak to section 304 Part I of IPC, we sentence him to the period of imprisonment already undergone.

¶147

Accordingly, the Criminal Appeal is allowed in part.

¶148

Before parting with the case, we would like to put on record our appreciation to Mr. Sabyasachi Mishra, the learned counsel for the Appellant for rendering his valuable help and assistance towards arriving at the decision above mentioned. This Court also appreciates the valuable help and assistance

¶149

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provided by Mr. Partha Sarathi Nayak, learned Additional

¶151

Government Advocate.

¶152

The trial Court records along with a copy of the

¶153

judgment be sent forthwith to the Court concerned.

¶154

S.K. Sahoo, J.

¶155

……………………………… Chittaranjan Dash, J.

¶156

Orissa High Court, Cuttack The 28th October 2025/AKPradhan/Bijay/Sarbani

¶157

Signature Not Verified

¶158

Digitally Signed Signed by: SARBANI DASH Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Nov-2025 13:46:54

¶159

CRLA No.316 of 2000 Page 33 of 33

Abhaya Kumar Nayak v. State of Orissa

Case brief

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Abhaya Kumar Nayak v. State of Orissa

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