THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 387 of 2005 (In the matter of an application under Section 374 of Criminal Procedure Code) (1) Amarendra Dhal@ Amar (2) Narmada Dhal ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellant : Ms. Chetna Prakash, Advocate For the Respondent : Mr. Sobhan Panigrahi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 14.05.2026 : Date of Judgment: 22.05.2026 S.S. Mishra, J. The present appeal has been preferred by the appellants assailing the judgment dated 25.07.2005 passed by the learned Addl. Sessions Judge (I), Dhenkanal in Criminal Trial (Sessions) No. 11 of 2005/1 of 2005, whereby though the appellants are acquitted of the charge under Sections 302/34 IPC relating to the murder of one Biranchi Nayak, however, they have been convicted under Sections 323/34 IPC and sentenced to undergo rigorous imprisonment for six months each. Page 2 of 9 2. Heard Ms. Chetna Prakash, learned Counsel for the appellants and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State. 3. The prosecution case, in brief, is that accused Amarendra Dhal was running a sweet-meat stall at Govindapur by the side of N.H.-42. The deceased, Biranchi Nayak, was working in the said shop as a sweet-maker (mistri) on a monthly salary of Rs.1,800/-. It is alleged that the accused had neither paid the salary dues of the deceased nor allowed him to leave and return to his house. Consequently, the wife of the deceased filed an application under Section 97 Cr.P.C. before the learned S.D.M., Dhenkanal on 09.03.2004 seeking issuance of a search warrant for rescuing her husband from the alleged wrongful confinement of the accused persons. Pursuant thereto, Criminal Misc. Case No.47 of 2004 under Section 97 Cr.P.C. was initiated and the learned S.D.M., Dhenkanal issued a search warrant directing the O.I.C., Sadar P.S./A.S.I., Govindapur Out-post to search the sweet stall of accused Amarendra Dhal situated near Hanuman Mandir, Govindapur and rescue the deceased. On execution of the said warrant, the deceased was rescued on 12.03.2004 and produced before the learned S.D.M., who was thereafter released to the custody of his wife, Bidulata Nayak. Subsequently, the deceased lodged an F.I.R. before the A.S.I. of Police, Govindapur Out- post alleging that on the night of 11.03.2004 at about 9.00 P.M., both the accused persons wrongfully confined him and assaulted him by means of slaps and thenga blows, as a result of which he sustained injuries on his head and other parts of his body. On receipt of the F.I.R., the A.S.I. made an entry in the station diary and took up investigation. Thereafter he forward the report to the O.I.C., Sadar P.S. for registration of a case. Accordingly, Sadar P.S. Case was registered under Sections 342/294/506/307/34 IPC against the accused persons. 4. The deceased was sent to the District Headquarters Hospital, Dhenkanal for treatment on the same day and was admitted there as an indoor patient. During investigation, the Investigating Officer examined witnesses, seized the records of Criminal Misc. Case No.47/04, seized one amari stick produced by accused Amarendra Dhal under seizure list, and took other necessary steps in the investigation. While undergoing treatment, the deceased succumbed to his injuries in the hospital on 25.03.2004, whereupon the case was converted to one under Sections 302/34 IPC. The Investigating Officer conducted inquest over the dead body of the deceased in presence of witnesses and thereafter sent the body for post-mortem examination. The autopsy surgeon conducted post- mortem examination on 25.03.2004 at about 11.45 A.M. and opined that the death was caused due to ante-mortem injuries to the brain. The Investigating Officer also seized the bed-head ticket of the deceased from the hospital under seizure list. Upon completion of investigation, charge-sheet was submitted against the accused persons under Sections 302/34 IPC. Thereafter, the learned S.D.J.M., Dhenkanal committed the case to the Court of Sessions for trial. Upon perusal of the records and hearing the parties, the learned Trial Court framed the charge under Sections 302/34 IPC against the accused persons. The contents of the charge having been read over and explained to them, the accused persons pleaded not guilty and claimed to be tried, whereupon the trial commenced. 5. In order to substantiate its case, the prosecution examined altogether 13 witnesses. P.W.1 is the elder brother of the deceased. P.Ws.3, 5, 6 and 7 were the alleged eye-witnesses to the occurrence. P.W.8 is the wife of the deceased, whereas P.W.7 is the father of the deceased. P.Ws.2 and 4 were the seizure witnesses to the articles seized by the police. P.W.9 was the scribe of the F.I.R. P.W.10 is the Medical Officer, who conducted the post-mortem examination over the dead body of the deceased. P.Ws.11 and 12 were the Investigating Officers of the case. P.W.13 was the Executive Magistrate, who recorded the statement of the deceased in Criminal Misc. Case No.47/04. 6. The learned Trial Court, upon proper appreciation of the oral and documentary evidence available on record, came to hold that the essential ingredients constituting the offence under Section 302 IPC were not made out against the accused persons. The learned Trial Court also examined whether the case would fall within the ambit of culpable homicide as contemplated under Sections 300, 304 Part-I and 304 Part-II IPC; however, finding that the necessary ingredients of the aforesaid offences were likewise not satisfied, the learned Trial Court ultimately held as follows: “16. The next point for consideration is as to what offence the accused persons have committed in this case. The deceased Biranchi Nayak was examined by the Medical Officer Dr. Anasuya Jena on 12.3.04. She found abrasions and bruises on the body of the deceased and she opined that the injuries are simple in nature and might have been caused by hard and blunt substance. Ext.8 is the bed-head- ticket of the deceased showing that he was undergoing treatment as an in-door patient from 12.3.04 to 25.3.04. The bed-head ticket further revealed that at 3.30 P.M. on 12.3.04, the deceased was conscious and was complaining pain all over his body and swelling at both the hands. The bed-head ticket further revealed that the patient was able to walk on 13.3.04. Nowhere in the bed-head ticket, it has been mentioned that the patient was suffering from any injury in the brain. On 23.3.04, he was suffering loose motions. The patient was referred to Medicine department for examination. On 25.3.04, it has been mentioned that patient was gaping and at 8.45 A.M., the patient died. From Ext.8, it is seen that the deceased was not having any disorder in brain at the time of his admission in the hospital and till his death. Autopsy Surgeon however, states that subdural haematoma base of size 2" x 1" situated at the base of the brain close to the medial on the posterior aspect and he opined that the cause of death was due to the injuries to the brain. The deceased was examined by the Medical Officer on 12.3.04. She has not seen any injury on the head of the deceased. The deceased was also not complaining before her that he was having any pain in his head. This disorder in the brain is subsequently developed and ultimately, the deceased died on 25.3.04. 17. The next point is whether the accused caused culpable homicide as defined in Section 299 by his slap and lathi blow. Culpable of the first degree which is defined in Section 300 I.P.C. as murder. The second degree of culpable homicide is defined in Section 304(1). The third degree of culpable homicide is punishable under the second part second part of 304. In the instant case, there is no material on record to so that the accused had assaulted the deceased with intention or knowledge to cause his death. The accused did not know that the deceased had any disease or infirmity in the brain. However, the deceased died while undergoing treatment for about 12 days. Even though death was resulted, the act which has caused or accelerated death was not necessarily be culpable homicide whether, amounting or not amounting to murder. The death was not the probable sequence of the acts of the accused. But it can be said that the accused intended to cause or knew that they were likely to cause hurt only and there would be committing an offence of voluntary causing hurt punishable u/S.323 I.P.C. Accordingly I find that prosecution has failed to establish the charge u/s.302/34 I.P.C. against the accused persons in this case. No case is also made out u/S.304 I.P.C. In the instant case both the accused persons shared common intention and voluntarily caused hurt to the deceased. Accordingly, I find the accused persons guilty u/S.323/34 I.P.C. and convict them thereafter. Page 7 of 9 18. In the instant case, the accused persons assaulted and caused hurt to the deceased. Unfortunately while undergoing treatment at the hospital, the deceased expired. Taking the above facts and the unfortunate death of the deceased, I sentence the accused persons to undergo R.I. for six months each u/s. 323/34 I.P.C. The period of detention be set off. 7. Aggrieved by the aforementioned findings leading to conviction and sentence recorded against the appellants, the appellants have filed the present appeal. 8. Ms. Chetna Prakash, learned counsel for the appellants, though initially attempted to point out certain inherent contradictions in the evidence adduced by the prosecution witnesses, ultimately confined her submissions to the quantum of sentence. It was contended that the appellants have already undergone custody for a period of about five months and, considering the nature of the offence, any further incarceration at this stage would serve no useful purpose. Learned counsel further submitted that a considerable lapse of time has occurred since the incident and that the appellants are now advanced in age, appellant no.1 being about 58 years and appellant no.2 about 50 years old. In such circumstances, it was urged that further imprisonment may prove detrimental to their lives and, therefore, a lenient view may be taken in the matter of sentence. 9. Pointing out the aforementioned, Ms. Chetna, learned Counsel submitted that the appellants have already undergone maximum period of sentence as awarded against them. Therefore, she submitted that this Court may not venture into the merits of the case, rather put a quietus to the matter by reducing the sentence to that the appellants have already undergone. 10. Having regard to the submissions advanced by the learned Amicus Curiae, which have not been disputed by the learned counsel for the State, this Court does not consider it necessary to delve into the merits of the case in detail. However, considering the long passage of time since the occurrence and the advanced age of the appellants, this Court deems it appropriate to modify the sentence and reduce the same to the period already undergone by the appellants. 11. Accordingly, the sentence imposed upon the appellants is reduced to the period already undergone by them. However, in order to balance the ends of justice, this Court deems it appropriate to impose a fine of Rs.5,000/- (Rupees five thousand) each upon the appellants, which shall be paid to the legal representatives of the deceased as compensation in terms of Section 357 Cr.P.C. In default of payment of the said fine within a period of one month, the appellants shall undergo simple imprisonment for a period of ten days. 12. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 22nd May, 2026/Ashok MOHAPATRA