THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.102 of 2006 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Badha Tudu ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Karunakar Jena, Advocate For the Respondent : Mr. Sobhan Panigrahi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 07.05.2026 :: Date of Judgment: 22.05.2026 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant is directed against the judgment and order dated 18.01.2006 passed by the learned Additional Sessions Judge, (Fast Track Court), Baripada in S.T. Case No.15/51 of 2005, whereby the appellant has been convicted for the offence under Section 307 of I.P.C. and on that count, he has been sentenced to undergo R.I. for seven years and to pay a fine of Rs.1,000/-, in default, to undergo further R.I. for six months. 2. Heard Mr. Karunakar Jena, learned counsel for the appellant and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State. 3. The prosecution case, in brief, is that on 30.08.2004 at about 11:00 P.M., the informant, namely, Lakhia Murmu lodged a written report at Udala Police Station alleging, inter alia, that her daughter, Maina, had married to the accused, Badha Tudu (the present appellant), for about seven years and they were residing together as husband and wife. It was alleged that on 29.08.2004 at about 7:00 to 8:00 P.M., the accused assaulted Maina, poured kerosene oil upon her from a lamp (Dibiri), and thereafter set her ablaze with the lighted Dibiri, causing severe burn injuries. It was further stated that the victim was admitted to the Udala Hospital in a critical condition struggling for her life. On the basis of the aforesaid written report, Udala Police Station P.S. Case No.73 dated 30.08.2004 was registered and investigation was taken up. During the course of investigation, the Investigating Officer examined the informant as well as the injured victim, seized the wearing apparels of the victim produced by the informant, visited the spot and prepared the spot map, examined other witnesses, issued injury requisition in respect of the injured, seized the Dibiri containing kerosene oil and a matchbox from the spot, arrested the accused and forwarded him to the Court. Upon receipt of the injury report and completion of investigation, charge-sheet was submitted against the accused. Thereafter, upon commitment of the case to the Court of Session, the accused faced trial. The plea of the defence is one of complete denial. It is the specific case of the accused that on the night of occurrence, after consuming Handia, he and his wife, Maina, along with their children, had gone to sleep in their house after keeping a lighted Dibiri on the shelf of the bedroom. According to the accused, the said Dibiri accidentally fell down, as a result of which the saree worn by his wife caught fire, causing burn injuries to her. It is further pleaded that the accused immediately attempted to extinguish the fire and thereafter admitted his wife to the Udala Hospital for treatment. According to him, due to misunderstanding with his mother-in-law, the present F.I.R. has been lodged falsely implicating him in the case. 4. In order to substantiate its case, the prosecution examined as many as nine witnesses. P.W.7 is the injured/victim and wife of the accused. P.W.6, namely, Lakhia Murmu, is the mother of the injured and the informant in the case. P.W.1, Sudam Chandra Jena, and P.W.2, Bhalu Hembram, were the neighbouring witnesses. P.W.3, Sukul Hembram, and P.W.5, Birsing Tudu are the brothers-in-law of the injured, whereas P.W.4, Jena Tudu, is the father of the accused. P.W.8 was the doctor, who examined the injured victim, and P.W.9 was the Investigating Officer of the case. Besides the oral evidence, the prosecution also proved documents marked as Exts.1 to 5 and material objects marked as M.Os. I to IV. On the other hand, the defence examined three witnesses, namely, Surendra Hembram, Bada Murmu and Bhima Charan Dakua, as D.Ws.1, 2 and 3 respectively. 5. Although initially the appellant was charged under Sections 498- A/307 of I.P.C., however, the learned trial Court after proper appreciation of evidence has arrived at a conclusion that Section 498-A of I.P.C. cannot be made out against the accused person however, held him guilty of the offence under Section 307 of I.P.C. For convenience of ready reference, the relevant part of the said judgment is reproduced:- “20. In the present case, it is the evidence of injured, P.W.7 that in the evening, the accused assaulted on her by means of a bamboo stick in her leg and thereafter in the late night when she (P.W.7) had slept accused made her woke up and when she was trying to serve food, all on a sudden the accused sprinkled Kerosine on her body and threw the burning Dibiri at her, for which her wearing Saree caught fire and she sustained burn injuries and she went running towards village, where the Video show was going on and the villagers watching the Video show by arranging vehicle shifted her to Udala Hospital. This part of her evidence also found support from the evidence of P.W.2, though declared hostile that Maina came running with burning and told him that her husband poured Kerosine and set her on fire. No doubt in her evidence P.W.7 has admitted that the accused pulled her wearing Saree and put it inside the water and applied Handia paste on her body but it is only after when raised hulla and her children got up & she went running towards the village, where the Video show was going on, which shows that when witnesses came to the rescue of P.W.7 the injured, the accused subsequently behaved, showing sympathy to the victim in order to escape from his act. Again, the victim has also denied the defence suggestion that accused arranged the vehicle and shifted her to the Hospital, to save her life. Thus from the above evidence of the injured victim it is found that due to the timely shifting of victim injured to Hospital by the villagers she could save her life. No doubt injury report shows the injuries on the victim are simple in nature but certainly it is in the vital part of her body. So from the above attending circumstances, and the evidence as discussed, it can be safely concluded that the accused had the intention and knowledge that his act was so imminently dangerous that it was likely to cause death of his wife (victim). So the offence U/S.307 I.P.C. has been well proved by the prosecution against the accused. 21. In the ultimate analysis, prosecution while failing to substantiate its charge U/S.498-A IPC against the accused, has successfully proved its charge against him U/S.307 I.P.C. Therefore, the accused is found not guilty of the charge U/S.498-A IPC and is acquitted therefrom U/S.235(1) of Cr.P.C. but as prosecution has proved its charge U/S.307 I.P.C., I found the accused guilty for the said offence U/S.307 I.P.C. and he is convicted thereunder.” 6. Being aggrieved by the findings as recorded above leading to the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, (Fast Track Court), Baripada, the present appeal has been preferred by the appellant. 7. Learned counsel for the appellant submitted that in the absence of vital ingredient of intention to commit the crime, the accused should have been acquitted of the charges under Section 307 of I.P.C. The prosecution having failed to prove the prior intention of the accused to commit the crime, the order of acquittal should have been passed in favour of the appellant. He has also contended that the evidence of P.Ws.1 and 4 has not been appreciated in the right perspective. The evidence of those witnesses revealed that due to an accidental fall of a lighted lamp (Dibiri) from the shelf, the saree of the victim caught fire and she sustained burn injuries. Even the evidence of P.W.5 and P.W.7 (victim) reveals that the accused himself had tried to save the victim from the injury and try to dowse the fire. It has also come on record that both the accused and the victim, who are husband and wife were sleeping together being intoxicated by consuming locally made handia. The sudden accident took place when the Dibiri fell on the victim at midnight, which caught fire on her polyester saree. Since both of them were in an inebriated condition, did not realize the incident. He further argued that the evidence of the eye-witnesses and other post-occurrence witnesses clearly establishes that it was the appellant who had taken his wife (P.W.7) to the hospital. P.W.7 herself has admitted that the appellant and his father bore all the expenses of the treatment. The evidence of P.W.8 further reveals that the victim had sustained simple injuries. 8. Per contra, learned counsel for the State argued that if the evidence of all the witnesses is read in juxtaposition with the exhibits on record, the findings recorded by the trial Court convicting the appellant cannot be faulted. He drew the attention of this Court to paragraph-19 of the impugned judgment and submitted that the sole contention of the appellant that he had no intention to cause injury to the victim and that the incident occurred accidentally has been well discussed by the learned trial Court upon proper appreciation of the evidence on record. For convenience of ready reference, paragraph-19 of the impugned judgment is reproduced hereunder:- “19. Section-307 I.P.C. deals with an attempt to murder. It provides that whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is provided earlier in the section. An attempt to commit a crime is an act done with intent to commit that crime, and would constitute its actual commission, if it were not interrupted. Intention or knowledge which is necessary to constitute murder may exist combined with an act which falls short of the complete commission of that offence. The act or omission, although it does not caused death, is carried to such a length as, at the time of carrying in to that length, the offender considers sufficient to cause death. If there has been not merely a commencement of an execution of the purpose, but something little short of a complete execution, the consumation being hindered by circumstances independent of the will of the author, Sec. 307 I.P.C. has application. To justify a conviction under the said provision, it is not essential that bodily injury capable of causing death should have been inflicted. Although nature of injury actually caused may often give considerable assistance incoming to a finding as to intention of the accused, such intention may also be deduced from other circumstances and factors and may even in some cases be ascertained without any reference at all to the actual wounds. For the purpose of constituting an offence under Sec. 307, two ingredients are required: Firstly, evil intent or knowledge, & Secondly, an act done, it depends upon the facts and circumstances of each case whether the accused had the intention to cause death or knew it in the circumstances that his act was going to cause death. The nature of the weapon used, the intention expressed by the accused at the time of the act, the motive for commission of the offence, the nature and size of the injuries, the parts of the body of the victim selected for causing the injuries and the severity of the blow or blows are important factors that may be taken into consideration in coming to a finding whether in a particular case the accused can be convicted of an attempted murder. There must be some overt act combined with evidence of mens rea. Page 10 of 14 In Sec. 307 I.P.C. the words “intention or knowledge" are used. Intention or knowledge are alternative ingredients of both Secs.299 and 300 IPC. Hence, an offence Under Sec.307 IPC can be committed whether there is no intention proved but only knowledge that the act is so imminently dangerous that it must in all probability cause death. Even if the accused did not have a deliberate intention, if he must have had the knowledge that his act was likely to Cause death, Sec. 307 applies. Intention and knowledge are a man's state of mind; direct evidence thereof except through his own confession cannot be had; and apart from confession cannot be had; and apart from confession they can be proved only by circumstantial evidence. In other words they are matters for inference from all the circumstances of the case. Word" intention" is used in I.P.C. in the sense that something is intentionally done, if it is done deliberately or purposely, in other words, is a willed though not necessarily is a desired result or a result which is the purpose of the deed. Like most words the word intention is capable of different shades of meaning. In the I.P.C. it is used in relation to the consequences of an act, the effect caused thereby, not in relation to the act itself- the voluntariness required to constitute an act is implied by that very word. A person commits the offence of attempt to commit a particular offence when (i) he intends to commit that particular offence, and (ii) he having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be penultimate act towards its commission of that offence; but must be an act during the course of committing that offence. In an attempt, every element of the thing attempted is present except the fact of success." 9. This Court has taken into consideration the submissions made by both parties and also analysed the reasoning recorded by the learned trial Court. From the evidence of P.W.7, the injured/victim and wife of the accused, it appears that although she supported the prosecution version regarding the occurrence, she has also categorically stated that she had been residing peacefully with the accused. The evidence further reveals that immediately after the occurrence, the accused made attempts to extinguish the fire and steps were taken to shift the injured to the hospital for treatment. She has also admitted in her deposition that she and her husband/accused both had handia together. It is obvious that both of them were in an inebriated state when the incident happened. The medical evidence of P.W.8 also discloses that the burn injuries sustained by the victim were simple in nature. It further appears from the materials on record that the incident occurred in the backdrop of consumption of Handia by both the spouses and there is no material suggesting any persistent cruelty or continuing criminal conduct on the part of the accused thereafter. The learned trial Court, upon appreciation of the evidence, has already acquitted the accused of the charge under Section 498-A of I.P.C. and convicted him only under Section 307 of I.P.C. Because the part of the evidence of P.W.7 regarding the incident lend corroboration to the evidence of the informant, P.W.6 and other independent witnesses including P.W.8, the doctor. The defence plea of accidental fire has been well dealt with by the learned trial Court on the analysis of evidence. This Court does not find any perversity in the finding of conviction warranting interference in appeal. Hence, the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, (Fast Track Court), Baripada in S.T. Case No.15/51 of 2005 is affirmed. 10. Learned counsel for the appellant argued the matter at length on the merits of the case submitted that he is not pressing the appeal in so far as the conviction is concerned and has confined his arguments to the quantum of sentence. 11. Mr. Jena, learned counsel appearing for the appellant, submitted that the incident relates back to the year 2004, at which point the appellant was about 41 years of age. At present, he is aged about 65 years. He also submitted that the appellant was arrested on 02.10.2004 and remained in custody till the judgment was pronounced on 18.01.2006. Therefore, the appellant has already undergone incarceration for a period of about two years. Over the years, he has led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating him after such a long delay, it is argued, would serve little penological purpose and may in fact be counter-productive, casting a needless stigma not only upon them but also upon his family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, in the fitness of the situation, a lenient view should be taken and the sentence of the appellant should be reduced to that of the period he has already undergone. 12. The contention raised by Mr. Jena, learned counsel appearing for the appellant, is not seriously controverted by the learned counsel for the State. Otherwise, the submission made by Mr. Jena, deserves attention in view of the fact that the present appeal itself has been pending since last more than two decades. 13. Taking into account the entire circumstances of the case, and the gravity of the offence, the age of the appellant, this Court consider it an appropriate case to modify the sentence. Hence, the sentence of seven years is modified to that of the period the appellant has already undergone. 14. Accordingly, the CRLA is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 22nd May, 2026/ Swarna