p. 1 IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.291 of 2003 Sankar Sahu …. Petitioner Mr. Ashok Das, Advocate -Versus- SState of Orissa …. Opposite Party Ms. B. Dash, ASC CORAM: JUSTICE R.K. PATTANAIK DATE OF HEARING: 15.12.2025 DATE OF JUDGMENT:31.03.2026 1. Instant revision is filed under Section 401 read with Section 397 Cr.P.C. by the petitioner challenging the impugned order of conviction and sentence dated 20th February, 2002 directed in S.C. No.8 of 2001 by learned Assistant Sessions Judge, Berhampur confirmed in Criminal Appeal No.26 of 2002 by judgment dated 20th March, 2003 of learned Sessions Judge, Ganjam-Gajapati, Berhampur on the grounds inter alia that the same is liable to be interfered with and set aside for being legally untenable. 2. The prosecution case in brief is that on 20th November, 1999 at about 10.00 AM, while the brother of the informant was returning along with one Panchanan Sahu after taking bath, the petitioner arrived there with a ‘Bhujali’ and chased him to assault and he, out of fear, ran but the latter managed to inflict blows, as a result of which he sustained bleeding p. 2 injuries. For the said incident, a written report was lodged leading to the registration of B. Sadar P.S. Case No.130 dated 21st November, 1999 under Sections 307 and 326 IPC and on completion of investigation, the chargesheet was filed under Section 307 IPC. In course of trial, prosecution examined seven witnesses and exhibited two documents, whereas the petitioner examined one witness, but no documentary evidence was led by him and considering the same, learned Assistant Sessions Judge, Berhampur concluded that a case under Section 307 IPC is well established and further proceeded to direct him to undergo a sentence of R.I. for five years and to pay a fine of Rs.2000/- with a default sentence with the period of detention, if any, to be set off in terms of Section 428 Cr.P.C. The aforesaid decision and order of conviction was challenged by the petitioner before learned Sessions Judge, Ganjam-Gajapati, Berhampur in Criminal Appeal No.26 of 2002, but it was dismissed with the conclusion that the prosecution successfully proved the case beyond reasonable doubt. Against the order of confirmation in appeal by the learned court below, the present revision has been preferred by the petitioner. 3. The grounds of challenge in the revision are as follows: (i) delay in lodging the FIR; (ii) the prosecution case is improbable as the injured claimed the presence of one Judhistir Sahu, who has not been examined; (iii) if the petitioner had the intention to kill the injured, he could have assaulted on any vital part of his body; (iv) the eye witness, namely, Judhistir Sahu to the alleged incident was not p. 3 examined for the reasons best known to the prosecution; (v) contradiction with regard to the nature of weapon which was never seized by the police; (vi) the evidence of the defence witness was disbelieved by the learned courts below without any reason; (vii) learned courts below even committed a mistake in not considering the evidence on record about illicit relationship of the petitioner with the wife of the injured; (viii) the injuries as per the medical report and evidence of the doctor could be possible in the manner suggested, but it has been rejected; (ix) if assuming but not admitting the prosecution case, the petitioner allegedly gave two blows by means of a ‘Bhujali’ which runs contrary to the evidence of the doctor, who found three injuries on the person of the victim, which creates a doubt regarding the veracity of his claim; and (x) therefore, the impugned order of conviction and sentence and decision of the learned court below in appeal is otherwise bad in law for being against the weight of evidence on record. 4. Heard Mr. Das, learned counsel for the petitioner and Ms. Dash, learned ASC for the State. 5. Perused the lower court’s record. 6. Mr. Das, learned counsel for the petitioner submits that the order of conviction and sentence cannot be sustained in law for the inherent contradictions in the evidence which has been completely lost sight of by both the learned courts below. The further submission is that the alleged occurrence took place on 20th November, 1999 during the day time at p. 4 10.00 AM, whereas the FIR was lodged on the next day i.e. on 21st November, 1999 at 2.00 PM, though, the PS was nearby and therefore, on such ground alone, the prosecution case is to be disbelieved. It is contended that there is a difference in the evidence regarding the nature of weapon used since it was claimed to be a ‘Bhujali’ and by some, a knife, inasmuch as, the weapon was not seized by the police and therefore, the learned courts below ought to have rejected the case of the prosecution. The contention is that weapon of offence used is a vital piece of evidence, but it was never recovered, hence, the claim of the prosecution case is not fully proved. The evidence of the doctor was also not properly appreciated as further submitted by Mr. Das, learned counsel, since the opinion was that such injuries could be possible if anybody falls on a fence having a pointed bamboo bar, especially when the weapon of offence was not seized. The investigation was conducted in a perfunctory manner and even such was the opinion of the learned court below, but still, the prosecution case was accepted directing conviction of the petitioner, which, according to Mr. Das, learned counsel, could not have been ignored and for the other grounds advanced and the contradictions apparent on the face of the record, the impugned decision deserves to be set aside. 7. On the contrary, Ms. Dash, learned ASC for the State justifies the order of conviction and sentence with the submission that a case under Section 307 IPC is proved and established considering the evidence on record. It is contended by Ms. Dash, learned ASC that the independent p. 5 witnesses corroborated the injured, one of whom was present at the spot and deposed during trial and he withstood the cross-examination successfully. The contention is that none of the witnesses were found to be untrustworthy and their evidence was not shaken, rather, it clearly proved the alleged incident of assault by the petitioner causing injuries to the victim and therefore, rightly, the learned court below upheld the conviction order and sentence which is not required to be disturbed. 8. The defence plea is one of simple denial. 9. The delay in lodging of the FIR is one of the grounds advanced by the defence. The alleged incident took place on 20th November, 1999 and a day after, the report was lodged. The contention of Ms. Dash, learned counsel is that the delay has not been explained by the prosecution. Ms. Dash, learned ASC would submit that such delay has been on account of the fact that the injured was at the hospital shifted just after the alleged incident and therefore, no such report could be lodged immediately, but the doctor at the hospital was informed to send intimation to the police and only after the victim regained sense in the night, the FIR was lodged on the next day and therefore, the learned courts below correctly appreciated the same and rejected the plea of the defence on delay. From the evidence on record, the Court finds that the injured regained sense at about 11.00 PM on 20th November, 1999 and on the following day i.e. on 21st November, 1999 at about 2.00 PM, the FIR was lodged. According to the Court, it was quite natural for the family of the injured to remain p. 6 with him at the hospital instead of rushing to the PS to lodge a report. It is a normal human tendency and response and reaction to a situation to rush to the hospital instead of approaching the PS to report the incident. The injured was immediately shifted to the hospital and thereafter, he was attended by his family members and was in a critical condition, having lost sense and regained it at 11.00 PM, it was only thereafter, the report was lodged, of course, on the next day at 2.00 PM. As everyone was concerned for the injured and attending him at the hospital, it was natural to expect a delay in lodging the FIR. 9.1. The evidence is that one Panchanan Sahu examined as P.W.3 witnessed the assault and the injured entered inside the house of one Judhistir Sahu and later was taken to the hospital for treatment. The evidence of P.W.3 suggests that for the injuries received by the victim, he was shifted to the hospital by his brother, namely, Ananda Kumar Sahu examined as P.W.4. It is further made to suggest from the evidence that the family of the injured shifted him to MKCG Medical College and Hospital, Berhampur for treatment, where he was admitted as an indoor patient. Considering the evidence of an ocular witness, namely, P.W.3, even though there has been a delay of 24 hours, in the considered view of the Court, the same is not fatal. 9.2. Law is well settled that delay in lodging of the FIR, if explained away, does not adversely impact the prosecution case. If in a given set of circumstances, it is found that the delay in lodging the FIR was natural and has taken place in p. 7 normal course of things as a prudent person believes, any such plea on delay questioning the genuineness of the incident shall have to be rejected. In the facts and circumstances of a particular case, when delay is inordinate and could not be explained, a doubt creeps in in absence of any explanation offered and there it could become fatal. If the delay is not deliberate to the extent of creating suspicion, too much of importance is not to be given to it. 9.3. In the case at hand, the delay is only of 24 hours and the family of the injured could not lodge the FIR immediately but had informed the doctor at the hospital to intimate the police and as in the late evening after the victim regained sense, the FIR was lodged on the next day at 2.00 PM. It may be said that the report could have been lodged either in the night of 20th November, 1999 or on the next day at around 9/10 AM but was lodged at 2.00 PM. The Court is of the view that there could be multiple reasons for lodging a report with little amount of delay, especially when one is admitted to the hospital in a critical condition. The Court does not find any reason to disbelieve the alleged incident merely for the delay. The reason behind the delay is well understood. In other words, the Court is inclined to hold that the delay is not fatal. The Court is of the view that the delay is not so significant as to damage the prosecution story. 9.4. In a catena of decisions, it has been held and observed by the Apex Court that the delay, if satisfactorily explained, is not to be viewed with suspicion. Delay is always not material, when it is explained or forthcoming from the p. 8 evidence on record. A delay in lodging an FIR by itself cannot be regarded as a sufficient ground to draw an adverse inference against the prosecution case, nor could it be treated as fatal and the reason behind the delay shall have to be ascertained and if the causes are not attributed to any effort to concoct a story, the delay would not be fatal to the case of the prosecution. In the instant case, the delay is explicable as the FIR was lodged on the next day after the injured regained sense on 20th November, 1999 at 11.00 PM. So, the challenge on any such ground of delay cannot be entertained and submission of Mr. Das, learned counsel for the petitioner in that regard, is, therefore, liable to be rejected. 10. Turning to evidence on record, P.Ws.1 and 4 are the brothers of the injured examined as P.W.2 and P.W.3 was in the company of the latter while they were together and when the alleged incident took place. The presence of P.W.3 is proved and he is an outsider, not a family member and hence, a disinterested witness unlike P.Ws.1 and 4. It is settled law that interested persons are inclined to ensure that the accused is convicted at any cost and in the case of the petitioner, of course, P.Ws.1 and 4 deposed in favour of the prosecution, but at the same time, it was corroborated by P.W.3. The injured was shifted to the hospital just after the occurrence by P.W.4 and another. Considering the evidence of the above witnesses which could not be shaken by the defence during trial, the Court is inclined to hold that the alleged incident received corroboration from the family of the injured and an outsider, namely, P.W.3. So, it is concluded that on such p. 9 ground, the prosecution case cannot be challenged as it is not entirely based on the evidence of interested witnesses only. 11. As per P.W.7, one of the injuries was grievous, but P.W.2 was found to have had two other injuries. According to the opinion of P.W.7, the injuries on P.W.2 have been caused by a sharp-edged and penetrating weapon. In fact, P.W.2 was admitted to the hospital and was examined by P.W.7, who noticed the following injuries, such as, one incised and penetrating injury of size 2’’x ½’’x 1” present over front of left side of the chest 2” below the left nipple; a penetrating injury of size 1’’x ½’’ x ½’’ over back on right side 2’’ from the midline; and another penetrating injury of size 1’’x ½’’ peritoneal depth over mid line left side of back, 2’’ from the mid line (Omentum protrusion). The evidence of P.W.2 regarding assault by a sharp-edged weapon is corroborated by the injuries disclosed by P.W.7. It was claimed that the injuries have been inflicted upon by means of a ‘Bhujali’ and it reconciled with the injuries found on the person of the injured. P.W.3 proved the assault by means of such a weapon and hence, it leads to a conclusion that the petitioner caused the injury to P.W.2 and it has been well corroborated by medical evidence as he had incised and penetrating wounds, one of which, was opined as grievous. So, the conclusion of the Court regarding the veracity of the claim of P.W.2 and P.W.3 about the manner of assault receiving injuries has since been corroborated by P.W.7 with the medical evidence vide Ext.2, no reason lies to disbelieve the alleged incident p. 10 and rightly so, the defence plea was rejected by the learned courts below. 12. The incident as revealed by P.W.2 reveals that he entered inside the house of one Judhistir Sahu. According to P.W.2, he did not see said one Panchanan Sahu by then as he was being chased by the petitioner. Admittedly, the owner of the house above named was not examined by the prosecution, but from other evidence, it is revealed that the petitioner was found chasing the injured, namely, P.W.2 holding a sharp- edged weapon which was even disclosed by P.W.3 and ultimately, the assault was carried out inside a cowshed. The Court does not find any reason either to disbelieve the prosecution case for the non-examination said Judhistir Sahu. At times, a witness is not examined by the prosecution for a variety of reasons. If a witness is found not supporting the prosecution case, he is most unlikely to be examined. When witnesses are proposed to be examined, turn hostile or likely to conceal the truth or real facts, their examination is avoided. The non-examination of a witness may be fatal, but not necessarily always. When a case is proved by other evidence and it is acceptable, non-examination of an ocular witness pales into insignificance. So, the Court is inclined to hold that even though one of the witnesses is not examined, more so when the evidence is not clear, as to whether, he was really present or otherwise while P.W.2 was being chased by the petitioner, it is hardly to affect the prosecution case since the alleged incident is proved by other evidence on record. So, the defence plea on the ground that the owner of the p. 11 house where the assault took place since was not examined, hence, it is fatal is also liable to rejection. 13. Another ground of the defence is that there is non-seizure of the weapon of offence which is admitted by the IO, namely, P.W.5. According to the Court, if the weapon of offence is not seized, it does not mean that the prosecution case, which is otherwise proved, is to be disbelieved entirely. At times, the weapon used in a crime is not traced out and for that, the prosecution case is not be outrightly rejected. The witnesses to the case if examined and the evidence received during trial finds corroboration from the medical evidence, non-seizure of a weapon of offence during investigation cannot be a ground to disbelieve the prosecution story. The learned court below held that even a defective investigation cannot be a ground to reject the case of the prosecution on the face of the evidence of the injured and P.W.7. The Court is of the view that non-recovery of weapon of offence may not be considered to allege ineffective or defective investigation, since at times, it is quite not possible to retrieve the same for being within the exclusive knowledge of the accused. Perhaps such an observation of the learned court below relates to other aspects of the case like non-seizure of bed-head ticket of P.W.2 from the hospital, where he was admitted, but then there is examination of P.W.7. For whatever reasons, the observation on investigation is aimed at, the Court is of the view that non-recovery of a weapon of offence cannot be a ground to reject prosecution case in its p. 12 entirety when at times it is destroyed and disposed of after the crime is committed. 14. In so far as the type of weapon used, it is alleged that on account of such discrepancy considering the evidence on record, the case of the prosecution is again suspectful. From the record, the Court finds that during cross-examination of P.W.1, it has been deposed by him that ‘Bhujali’ is also called as a knife. In fact, P.W.2 claimed that the petitioner was holding a ‘Bhujali’, whereas, the other witness, namely, P.W.3 mentioned it as a knife. The description of the weapon has been revealed. It was perceived as a knife by P.W.1, though he claimed that the weapon to be ‘Bhujali’. Such evidence of P.W.1 stands corroborated by P.W.2 who claimed the weapon to be a ‘Bhujali’. When it is believed to be a knife but received clarification from P.W.1 that a ‘Bhujali’ is also called as a knife, considering such evidence on record, the Court is not inclined to lay any importance to the same when the injuries were caused by means of a sharp cutting weapon and it has also resulted in penetrating injuries. Irrespective of any such evidence regarding the kind of weapon used which is essentially believed to be a ‘Bhujali’, the Court considering the materials on record is not inclined to accept the defence plea that such discrepancy is a contradiction to seriously affect the prosecution case. 15. The injured, namely, P.W.2 was admitted in the hospital and was treated as an indoor patient for about 12 to 13 days. The alleged incident has been proved by P.W.2 and also P.W.3 and corroborated by others. Nothing is there on record p. 13 to discredit the testimony of the witnesses examined by the prosecution. The alleged incident has been narrated by P.W.2 and P.W.3 pointing fingers towards the petitioner as he intercepted them and thereafter, chased P.W.2 to assault. The reason behind the alleged incident is not really forthcoming. It is allegedly attributed to an illicit relationship of P.W.2 with the wife of petitioner. The defence plea is that P.W.2 had in mind to eliminate the petitioner, hence, foisted a false case. No evidence received during trial regarding any such illicit relationship alleged against P.W.2. Even assuming for the sake of argument that there was any such relationship between P.W.2 and wife of the petitioner, to hold that the prosecution case is false is unacceptable for the reason that there is direct evidence to prove the alleged incident and the assault. Any such animosity between the parties is a double- edged weapon as it could be a basis for a prosecution and also persecution. The evidence of the defence witness, namely, D.W.1 was disbelieved by learned courts below and according to the Court, no wrong has been committed thereby. The version of D.W.1 was found to be not trustworthy with a conclusion that such evidence is not sufficient to dislodge the prosecution story as unfolded by P.W.2 and others. When the incident is proved and it is established that P.W.2 received a couple of injuries and such injuries cannot be concocted by self-infliction, the story of the defence that it might have been received by a fall referring to the suggestion of P.W.7 is equally liable to rejection. In other words, it is held that the prosecution has been successful in proving the case beyond reasonable doubt. Page 14 of 14 So, as a necessary corollary, the order of conviction is perfectly justified. 16. But with regard to the sentence, the Court is inclined to reduce it to three years as in the meantime more than 25 years have gone by and nothing adverse regarding the conduct of petitioner is brought to its notice. The Court is aware of the fact that sentence must be proportionate to the offence and its reduction can undermine public confidence. But the petitioner has been living under the shadow of conviction for more than two decades and on such ground and other mitigating circumstances, the Court is inclined to go for a reduction in the sentence. 17. Accordingly, it is ordered. 18. In the result, the revision petition stands allowed in part. Consequently, impugned order of conviction dated 20th February, 2002 in S.C. No.8 of 2001 confirmed in Criminal Appeal No.26 of 2002 by learned Sessions Judge, Ganjam- Gajapati, Berhampur stands upheld, however, with the modification of the sentence to the extent as aforesaid maintaining the fine with default sentence. (R.K. Pattanaik) Judge Tudu Designation: Sr. Stenographer