THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 83 of 2002 (In the matter of an application under Section 374(2) of Criminal Procedure Code) Papuli @ Saumya Prakash Das ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Smruti Ranjan Dash, Amicus Curiae For the Respondent : Mr. Jateswar Naik, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 12.02.2026 : Date of Judgment: 19.02.2026 S.S. Mishra, J. The sole appellant has assailed the judgment of conviction and order of sentence dated 25.09.2002 passed by the learned Sessions Judge, Khurda at Bhubaneswar in S.T. Case No. 27 of 2002 arising out of G.R. Case No. 3310 of 2000, whereby he has been convicted for offence punishable under Section 323 of IPC and has been sentenced to undergo R.I. for one year. 2. Heard Mr. Smruti Ranjan Dash, learned Amicus Curiae for the appellant and Mr. Jateswar Naik, learned Addl. Government Advocate for the State. 3. As per the prosecution report, there were two accused persons including the present appellant. One Amar Mohanty had accompanied with the present appellant and participated in the crime. The occurrence took place on 23.09.2000 and on the very next day, i.e. on 24.09.2000, the said Amar Mohanty committed suicide. Therefore, the present appellant was only stood charged for offence under Section 302 of IPC, although Section 34 of IPC was also invoked. 4. The prosecution report, as per the FIR is that the deceased owned a three roomed shop house at Sahid Nagar weekly market (Hat), where two lessees namely, Bipin and Banchha were running shops. The deceased used to visit his shop house on the weekly market day. In the evening of 23.09.2000 he had been to Sahid Nagar weekly market and at about 9.25 p.m., while urinating by the side of a tubewell near the compound wall, the accused and his accomplice taunted him leading to an altercation between them. The deceased came to the shop room leased out to Bipin being followed by the accused and his accomplice. They pushed the deceased as a result of which his head came in contact with the door latch causing injury. The accused and the accomplice soured fist blows and kicks on the abdomen, chest and back of the deceased. Thereafter they dragged the deceased to the road in front of Arya Samaj building outside the market and there again they assaulted the deceased in the similar fashion by dealing fist blows and kicks on his abdomen, chest and back. P.Ws.3 and 5 and others sent the deceased home by an auto rickshaw of the P.W.1. The deceased succumbed to the injuries on 24.09.2000 while being shifted to the Capital Hospital, Bhubaneswar. 5. On the basis of the written report of the informant, police registered the case and investigation was conducted and charge sheet has been filed in the present case against the accused u/s.302/34 I.P.C. 6. The prosecution in order to bring home charges examined as many as eight witnesses and exhibited ten documents along with M.O.I & II. Page 4 of 10 7. The prosecution case stands on the legs of the evidence of P.Ws.3 and 5, those who are the eye witnesses to the occurrence. The learned Trial Court found corroboration of their evidences with the evidence of the doctor P.W.2 and the post occurrence witnesses, i.e., P.Ws.1 and 6. P.W.3 in his evidence has stated that at about 9.30 P.M. on 23.09.2000 he was in Sahid Nagar Market and found that Gopal Naik (deceased) was standing in front of his shop room. The present accused and another person (Amar Mohanty) picked up quarrel with Gopal Naik and pushed him, as a result of which he collided against the door frame of the house and sustained bleeding injury on the back side of his head over the left ear. He further deposed that he and other people intervened to separate the accused persons from the deceased, but the accused and his accomplice threatened them and started giving kick and fist blows on the abdomen, chest and back of the deceased Gopal Naik. They also caught hold of the hand of the deceased Gopal Nayak and dragged him to Arya Samaj situated at a distance of 50 cubits and there also the accused and his accomplice dealt kick and fist blows on the abdomen, chest and back of the deceased. Many people gathered at Arya Samaj, therefore the accused persons fled away from the spot. At that point of time, P.W.1- Narahari Naik arrived at the spot in his auto rickshaw and took the deceased Gopal Naik to his home at village Koradakanta. This version of P.W.3 stood corroborated with the evidence of P.W.5, who in verbatim deposed the same as that of P.W.3. P.W.1 was a post occurrence witness has stated that on 23.09.2000 he had been to weekly market. When he was returning in his auto rickshaw after purchasing the vegetables, he found deceased Gopal Naik was sitting in his auto rickshaw. He carried him to his village and the deceased Gopal Naik walked out from the auto rickshaw and went to his house. P.W.6, who was also a post occurrence witness and the brother of the deceased Gopal Naik, deposed that when he returned from the weekly market to his house at 5.00 P.M., he saw the deceased was bed ridden and getting severe pain on his chest and abdomen. He also narrated the entire incident to him. After hearing the entire incident from his brother, P.W.6 went to the police station on the next day, i.e. on 24.09.2000 and registered the FIR, which has been exhibited. In the FIR, detail narration of the incident has been given. 8. From the reading of the evidences of P.Ws.1, 3, 5 and 6, it is evidently clear that the incident had taken place on 23.09.2000. The present appellant along with the co-accused (Amar Mohnaty) have assaulted Gopal Naik (deceased) indiscriminately in the abdomen by kicks and blows. Gopal Naik (deceased) was also pushed by the appellant, as a result of which he got hurt in his head caused bleeding injury. This aspect of the matter further found corroborated from the evidence of P.W.2, the doctor, who deposed that on 25.09.2000 at 11.00 A.M. he conducted autopsy over the dead body of the deceased Gopal Naik. On dissection, he found the following internal injuries:- “(i) Lacerations on right lobe of liver on lateral surface in an area 3” diameter to a depth of 1/10th to 1/5th. (ii) Transvers colon was perforated at middle site of transverse colon attachment, admitting tip of little ringer. Transvers mascolon was torn correspondently along with injury to blood vessles. Abdominal cavity was filled with 2 ltrs. of blood, and contaminated with fiscal matters. He further stated that he conducted the post mortem and gave the following opinion:- “(i) The injuries were antemortem in nature, caused blunt impact on abdomen. (ii) The cause of death was due to heamorrhage and shock resulting from injury to liver and transverse colon. (iii) Time since death was 12 to 24 hours at the time of post-mortem examination.” He further stated that the internal injuries noticed by him could be caused by fist and kicks blows and may cause death in the ordinary course of nature. However, the further evidence of the doctor that he did not find any injury on the head of the deceased and has also not given his opinion as to whether the injury on the body of the deceased is either simple or grievous. 9. The learned trial court analyzed the entire evidence as discussed above and summed up its opinion in paragraphs-10 and 15 of the impugned judgment, which reads as under:- “10. Both the P.ws.3 and 5 have stated that the accused and his accomplice pushed the deceased at the shop room as a result of which his head was dashed against the door latch causing injury on the head over the left ear. They have also stated that the deceased was bleeding from the ear and nose. The 1.0.(P.W.8) who conducted inquest over the dead body of the deceased, also found injury on the head over left ear. The ocular evidence of the P.Ws.3 and 5 is consistent with the inquest made by the P.W.8 vide Ext.1. Page 8 of 10 No doubt, the doctor conducting autopsy (P.W.2) has not noticed any external injury on the dead body of the deceased. It may be an inadvertence due to minor nature of the injury. It is the settled principle of law that in case of conflict between direct evidence of eye-witnesses and evidence of medical expert, eye-witness version is to be accepted unless the medical evidence completely rules out the version of the eye-witnesses. (Please see in the case of Sheo Prasad, Vrs. State of U.P. (1988) 3 Crimes 762 (Allahabad) relying on A.I.R. 1983 Supreme Court 957). In the present case, P.W.2, the doctor conducting autopsy, has opined that the injuries to liver and transverse colon as noticed by him, are possible by kicks and fist blows which lends assurance to the ocular testimony of P.Ws.3 and 5 that kicks and fist blows were delivered to the abdomen of the deceased. Therefore, it cannot be said that medical evidence as to the manner of assault is inconsistent with the ocular evidence merely because the doctor could not notice a minor injury on the head of the deceased above the left ear. xxx xxx xxx 15. From the discussions made and reasons stated in the foregoing paragraphs, I hold that the accused and his accomplice (deceased Amar Mohanty) have assaulted the deceased on his abdomen, chest and other parts of the body by delivering kicks and fist blows. Ordinarily death is not caused by fist blows and kicks and as such it cannot be said that either the accused or his deceased accomplice had the intention of causing death of the deceased. They had also no intention of causing such bodily injury as was likely to cause death or the knowledge that their act (manner of their assault) was likely to cause death of the deceased. Therefore, the act of the accused does not fall within the mischief of Section 302 or either part of 304 I.P.C.. Having voluntarily caused hurt to the deceased by kicks and fist blows, they have committed an offence punishable u/s. 323 I.P.C.” 10. I have carefully analyzed the reasoning recorded by the learned trial court in the light of the evidence discussed above. I find no reason to disagree with the findings, rather this Court is of the view that the offence committed by the accused persons is indeed an aggravated offence and liable to be convicted for a higher offence. But regard being had to the prolongation of the appeal and in the absence of any appeal by the State, at the trial stage and in the appellate stage, this Court is not inclined to further precipitate the issue by giving notice to the accused/appellant for enhancement of sentence. Therefore, feel it suffice to upheld the judgment of conviction and sentence against the present appellant. 11. Accordingly, the appeal being devoid of merit stands dismissed. The sentence imposed by the learned trial court is upheld. The appellant is directed to surrender before the learned trial court within a period of one month to serve out the remaining sentence, if any. Page 10 of 10 12. This Court records the appreciation for the effective and meaningful assistance rendered by Mr. Smruti Ranjan Dash, learned Amicus Curiae. He is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 19th February, 2026/Ashok Designation: Secretary