HEADING OF DECISION IN THE APPELLATE JURISDICTION

IN THE COURT OF THE SESSIONS JUDGE, SAMBALPUR

Present:
Sri B.N.Mohanty, OSJS,
Sessions Judge, Sambalpur.

Date of argument - 22.02.2021

Date of judgment - 15.03.2021

Criminal Appeal No.22 of 2018

Hajari Pradhan, aged about 30 years, S/o.Late Lalu

Pradhan, R/o.Laindamal, P.S.Rairakhol, Dist.Sambalpur.

… Appellant

Vrs.

State of Odisha ... Respondent

[Appeal against the judgment/order of conviction

and sentence dated 28.8.2018 passed by Sri Basudev
Acharya, Assistant Sessions Judge, Rairakhol in ST
Case No.108-98 of 2017, arising out of Rairakhol
P.S.Case No.122, dated 16.8.2015 corresponding to
GR Case No.270/2015 of the file of learned SDJM,
Rairakhol]

Appearances:

For the Appellant : Sri R.N.Debata & Associates,

Advocates, Sambalpur.

For the Respondent : Sri Dipti Ranjan Sendh,

Public Prosecutor, Sambalpur.

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 JUDGMENT
The convict-appellant has preferred this appeal
challenging the orders of conviction and sentence dated
28.8.2018 passed in ST Case No.108-98 of 2017, arising
out of Rairakhol P.S.Case No.122/2015, corresponding to
GR Case No.270/2015 of the file of SDJM, Rairakhol, by
the learned Assistant Sessions Judge, Rairakhol,
Dist.Sambalpur, whereunder and whereby the appellant is
found guilty under Secs.324, 325, 307 & 506 of the Indian
Penal Code (hereinafter referred to as “IPC”) and sentenced
to undergo, rigorous imprisonment for one year for the
offence under Sec.324 of IPC; rigorous imprisonment for
three years and to pay a fine of Rs.3,000/-, in default of
payment of fine, to undergo rigorous imprisonment for six
months for the offence under Sec.325 of IPC; rigorous
imprisonment for five years and to pay a fine of Rs.5,000/-,
in default of payment of fine, to undergo rigorous
imprisonment for one year for the offence under Sec.307 of
IPC; and rigorous imprisonment for two years for the
offence under Sec.506 of IPC, with further direction that all
the sentences shall run concurrently subject to set off under
Sec.428 of the Code of Criminal Procedure (hereinafter
referred to as “Cr.P.C.”). .
2. The case of the prosecution in a nutshell is that,
Smt.Laxmi Pradhan (hereinafter referred to as “the
informant”) lodged a written report on 16.8.2015 before the
IIC, Rairakhol Police Station reporting therein that, on that

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day, at about 3.00 P.M., Hajari Pradhan (the appellant),
who is her brother-in-law, entered inside their house being
armed with Bhujali and pistol and threatened them to kill.
Due to such threat, she along with her son fled from the
house, but the appellant assaulted her husband Pabitra
Pradhan, who is also the brother of the appellant, by means
of a Bhujali causing injury on his chest and back. He also
threatened them with dire consequences.
On the basis of the aforesaid report, Rairakhol
P.S.Case No.122, dated 16.8.2015 was registered under
Secs.452, 307, 324 & 506 of IPC and investigated into.
After completion of investigation, charge-sheet under
Secs.452, 307, 324, 325 & 506 of IPC was filed against the
appellant and ultimately he faced trial for the aforesaid
charges.
3. The plea of the appellant was complete denial
and false implication due to land dispute between the
parties.
4. During trial, the prosecution, to bring home the
charges against the appellant, examined as many as nine
witnesses, of whom, P.W.1 is the informant; P.W.2 is her
husband and the injured; P.W.3 is the brother-in-law of
P.W.2; P.W.4 is the paternal uncle, so also a witness to
seizure; P.W.5 is an independent witness; P.Ws.6 & 7 are
witnesses to seizure; P.W.8 is the doctor, who examined the
injured; and P.W.9 is the Investigating Officer. Besides the

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oral evidence, the prosecution relied upon documents under
Ext.1 to Ext.8/2.
On the other hand, the appellant, in support of
his defence, examined his mother as D.W.1 and himself as
D.W.2.
5. The learned trial Court, after taking into
consideration the uncontroverted evidence of both the
injured and his wife (the informant) vis-a-vis the evidence
of the doctor (P.W.8) and the injury report of the injured
under Ext.6/1, found the appellant guilty under Secs.324,
325, 307 & 506 of IPC and convicted him thereunder with
imposition of sentences vide his judgment dated 28.8.2018,
which is impugned in this appeal.
6. Learned counsel for the appellant firstly;
contended that both the informant-injured and the appellant
are uterine brothers and not pulling on well relating to land
dispute. Secondly, it was contended that the circumstances
of seizure of the weapon of offence i.e. a sword, is not only
highly suspicious, but also from the evidence of the
witnesses it appears that they are not consistent about the
injury sustained by the injured on different parts of his
body. Thirdly, it was contended that the appellant neither
had any intention to cause such injury which might have
caused death to the injured, nor knowingly or with an
intention to cause grievous hurt, assaulted the injured.
Therefore, the offences under Secs.325 & 307 of IPC are
not at all made out. Fourthly, it was contended that in view

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of the discrepancies crept in, in the evidence of the
prosecution witnesses, the basic ingredients of Secs.324 &
506 of IPC are also not established and proved by the
prosecution. Therefore, the impugned orders of conviction
and sentence passed against the appellant may not be
sustainable.
7. On the other hand, learned Public Prosecutor,
while supporting the findings of the learned trial Court,
contended that the injured and his wife (the informant) in
their uncontroverted evidences have specifically stated
about the threat and assault made by the appellant to the
injured, so also the threat given by the appellant to the
informant and her son causing alarm in their mind for death
or any bodily injury, but also assaulted the informant with
intention to kill him. The evidences of the injured and his
wife also fully corroborate by the medical evidence, such as
the evidence of the doctor (P.W.8) and the injury report of
the injured under Ext.6/1. Therefore, the learned trial Court
rightly found the appellant guilty under the aforesaid
Sections.
8. In view of the aforesaid rival submissions of the
parties, now let us examine the evidences adduced on
behalf of the prosecution vis-à-vis the relevant provisions of
law to determine, “as to whether the learned trial Court
is correct in his findings while found the appellant guilty
under Secs.324, 325, 307 & 506 of IPC”?

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9. To establish the charge under Sec.307 of IPC, it
is the bounden duty of the prosecution to prove that a
person did any act with such intention or knowledge that, if
he by that act caused death to a person. In other words, the
act done must be with an intent to cause death or the act
was done with an intent of causing such bodily injury
knowing fully well that such injury likely to cause death or
sufficient in ordinary course of nature to cause death or the
person attempted to cause death by doing that act knowing
that his act is so imminently dangerous it must in all
probabilities cause either death or such bodily injury which
is likely to cause death.
10. From the evidence of the informant, who is the
wife of the injured vis-à-vis the sister-in-law (Bhauja) of
the appellant, in her evidence has stated that about two
years back, from the date of her examination, on one
Sunday, at about 3.00 P.M., while she along with her son
were in their house, the appellant went there, abused them
in filthy language and threatened them to kill at the point of
Bhujali and pistol. Then, out of fear, they went away from
their house. Thereafter the appellant assaulted her husband
(the injured) by means of that Bhujali in front of the house
of one Bhagaban Pradhan causing injury on his left side
arm pit, back and leg. Then they shifted the injured to
Rairakhol hospital. Though the wife (P.W.1) did not say
anything about the presence of the husband (P.W.2) in the
house at the time when the appellant threatened them to

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kill, but P.W.2 in his evidence has stated that when he along
with his wife and son were in their house, the appellant
went there, abused them in filthy language and threatened
them to kill at the point of Bhujali and pistol. Out of fear,
they ran away from their house. Thereafter the appellant
assaulted him by means of a Bhujali in front of the house of
Bhagaban Padhan (P.W.5) on his left side arm pit and back
causing bleeding injury. The cross-examination of both the
witnesses was declined by the appellant. The son of the
informant was not examined, however, Bhagaban Pradhan,
in front of whose house alleged assault stated to had been
taken place, is examined as P.W.5, who in his evidence has
not whispered a single word about the assault made by the
appellant to the injured. Therefore, in relation to assault,
P.W.2-injured is the sole witness. Neither P.W.2 nor P.W.1
has stated anything about the intention of the appellant to
assault the injured with an intention to kill him or to cause
such bodily injury which might have caused death to him in
ordinary course of nature. The doctor (P.W.8), who had
examined the injured, neither stated anything nor any
suggestion was given to her by the prosecution regarding
the injury sustained by the injured which might have caused
death to the injured in ordinary course of nature. The
learned trial Court, without taking into consideration the
aforesaid aspect, simply come to a conclusion that the
prosecution could able to bring home the charge under
Sec.307 of IPC against the appellant beyond all reasonable

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doubt. Therefore, in view of the aforesaid discussions, this
Court is of the considered opinion that the prosecution has
failed to establish the charge under Sec.307 of IPC against
the appellant beyond all reasonable doubt.
11. So far as the offences under Secs.324 & 325 of
IPC are concerned, learned counsel for the appellant, during
the course of argument, contended that the evidences of the
prosecution witnesses are not only inconsistent, but also
from the evidences it appears, one Bhujali and one sword
were seized during the course of investigation. The Bhujali
was seized on being produced by the injured himself,
whereas a sword was recovered from the backyard of the
house of the appellant, as per the I.O. (P.W.9), and from the
house of the appellant, as per P.Ws.4 & 6, was seized.
Surprisingly, during the course of trial, the weapon of
offence was not produced before the Court without any
justifiable explanation by the prosecution. On perusal of the
evidences it appears, P.W.3 in his evidence has stated that
on 29.8.2015, one blood stained Lungi and one Bhujali
were seized from the injured at Rairakhol Police Station in
his presence under Ext.3. But, on perusal of Ext.3 it
appears, there is no mention about the seizure of Bhujali.
P.W.4 in his evidence has stated that one day in the year,
2015, the police seized one sword from the house of the
appellant through the seizure list under Ext.4, which is
corroborated by another seizure witness (P.W.6). From
Ext.4 it appears, one sword was seized on 16.8.2015, at

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10.20 P.M. (night) from the cultivable land of the appellant.
The I.O. in his evidence has stated that he seized the sword
from the cultivable land of the appellant, whereas P.Ws.4 &
6 in their evidences have stated that the sword in question
was seized from the house of the appellant. Therefore, there
is a discrepancy about recovery and place of seizure of the
sword. Admittedly, the sword was not produced before the
Court during trial.
12. As far as the injuries sustained by the injured
are concerned, P.W.2 (the injured) in his evidence has
stated that due to the assault made by the appellant, he
sustained injuries on his left side arm pit and back, whereas
his wife (P.W.1) in her evidence has stated that the injured
also sustained injury on his leg, besides the arm pit and
back. The doctor (P.W.8), who examined the injured, in his
evidence has stated that on 16.8.2015, he examined the
injured (P.W.2) and found four injuries viz. (i) incised
wound of size 8 cm x 5 cm x 5 cm on left side axilla, (ii)
lacerated wound of size 3 cm x 1 cm x 0.5 cm over right
side chest, (iii) lacerated wound of size 3 cm x 0.5 cm x 0.5
cm over left lateral malleolus, and (iv) swelling of left
shoulder region. The age of the injuries was within six
hours from the time of examination. In this case, the alleged
incident stated to had been occurred at 3.00 P.M. and the
injured was medically examined at 4.10 P.M. The doctor in
her evidence has further stated that the injury Nos.1, 2 & 3
are simple in nature and the injury No.4, subsequently

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found with fracture injury on left scapular bone, was
grievous in nature. She has further stated that as per the
requisition made by the police, she examined the weapon of
offence and opined that the injury No.(i) sustained by the
injured might have been caused by that weapon. In her
evidence, though she has not stated that on 17.8.2015, she
examined the appellant on police requisition, but the injury
of the appellant under Ext.5/1 reveals, he sustained one
injury on his person i.e. bruise of size 3” x 1” over right
back side of neck. Accordingly, she proved her reports
under Exts.5/1 & 6/1. The aforesaid evidences of the doctor
about the injuries sustained by the injured on different parts
of his body squarely corroborates the evidence of both the
injured and his wife, P.Ws.2 & 1 respectively. No doubt,
there are some discrepancies about the place of seizure of
the sword i.e. the weapon of offence, and its non-production
before the Court during trial, but in all circumstances it is
not fatal for the prosecution, if the injuries sustained by the
injured are fully proved by ocular vis-à-vis medical
evidences.
13. Section 324 of IPC prescribes punishment for
“voluntarily causing hurt” by dangerous weapon, whereas
Sec.325 for “voluntarily causing grievous hurt”. Under
Sec.321 of IPC, “voluntarily causing hurt” is defined,
whereas under Sec.322, “voluntarily causing grievous hurt”
is defined. From the evidence of the doctor vis-à-vis the
injury report of the injured it appears, he sustained fracture

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injury on his left scapular bone. As per the Seventhly
Clause of Sec.320 of IPC, it squarely covered the definition
of “grievous hurt”. However, under the definition of
“voluntarily causing grievous hurt” under Sec.322, it has to
be established that “grievous hurt” must be caused to the
injured and the same was caused to him with an intent to
cause grievous hurt. In absence of proof of intent to cause
grievous hurt, the definition of “voluntarily causing
grievous hurt” does not attract, even though grievous hurt
caused to the injured. A thorough reading of the evidence of
P.W.2 (who is the only and best person to say about the
assault made to him in absence of any other independent
witnesses) does not reveal anything from which it can be
safely inferred that the appellant caused grievous hurt to the
injured with an intention to cause such hurt, more
particularly when the appellant had also sustained injury on
his person and the prosecution failed to explain under what
circumstances the appellant sustained injury. Therefore, it
cannot be ruled out that there was an attack and counter
attack between the injured and the appellant relating to a
quarrel between their wives, as stated by D.Ws.1 & 2.
14. Further, the nature of injuries attracting the
offences under Secs.324 & 325 of IPC are usually sustained
by a person in same transaction. The learned trial Court
found the appellant guilty under both the Sections. Section
72 of IPC mandates that in all cases in which judgment is
given that a person is guilty of one of several offences

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specified in the judgment, but it is doubtful of which of
these offences he is guilty, the offender shall be punished
for offence for which the lowest punishment is provided, if
the same punishment is not provided for all. Section 324 of
IPC prescribes punishment for imprisonment of either
description for a term which may extend to three years, or
with fine, or with both, whereas Sec.325 of IPC prescribes
punishment for imprisonment of either description for a
term which may extend to seven years, and shall also be
liable to fine. Therefore, the punishment prescribed for both
the offences are not same. Thus, in the aforesaid
circumstances, when the intention of the appellant to cause
grievous hurt to the injured is not proved, the penal Sec.324
of IPC is only established in this case, but not Sec.325 of
IPC. Accordingly, the finding of the learned trial Court
holding the appellant guilty under Sec.325 of IPC is not
sustainable.
15. So far as the offence under Sec.506 of IPC is
concerned, from the evidence of P.Ws.1 & 2 it appears, the
appellant went to their house and threatened them with dire
consequences at a point of Bhujali and pistol (though the
fact of possession of pistol by the appellant is not proved
during trial) and out of fear, P.W.1 and her son not only
fled from the house, but also the injured. Soon thereafter the
injured was assaulted by the appellant. Therefore, certainly
it can be said that the threat given by the appellant to the
injured and his family members, caused alarm in their mind

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for commission of an offence by the appellant punishable
with imprisonment which may be extended to seven years.
Therefore, the learned trial Court rightly found the
appellant guilty under Sec.506 of IPC.
16. During the course of argument, learned counsel
for the appellant contended that both the injured and the
appellant are two uterine brothers and separated in mess.
They are not pulling on well due to the land dispute. The
mother of both the injured and the appellant has been
examined as D.W.1, who also stated about the dispute
between two brothers relating to the land, besides P.Ws.3, 4
& 9. The appellant has got no criminal antecedent to his
credit. Therefore, to maintain good will and brotherly-hood
feeling between the parties, the punishment imposed on the
appellant may be reconsidered.
17. Thus, having heard the learned counsel for the
parties and in view of the aforesaid discussions, this Court
come to a conclusion that the learned trial Court is not
correct in his finding by holding the appellant guilty for the
offences under Secs.325 & 307 of IPC, but rightly found
the appellant guilty for the offences under Secs.324 & 506
of IPC. Accordingly, the impugned orders of conviction and
sentence passed against the appellant under Secs.325 & 307
of IPC are set aside and he is acquitted from those charges
under Sec.235(1) Cr.P.C. But, so far as the sentences under
Secs.324 & 506 of IPC are concerned, the same are
confirmed, however, the sentences imposed by the leaned

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 trial Court for those two Sections are modified to the
extent that on conviction, for the offence under Sec.324 of
IPC, the appellant shall pay a fine of Rs.2,000/- (Rupees
two thousand only), and in default of payment of fine, to
undergo rigorous imprisonment for one month; and for the
offence under Sec.506 of IPC, the appellant shall pay a
fine of Rs.2,000/- (Rupees two thousand only), and in
default of payment of fine, to undergo rigorous
imprisonment for one month.
Accordingly, the appeal is allowed in part.
The scanned LCR need not be sent back to the
learned trial Court, but a copy of the judgment be sent to
the learned trial Court forthwith.

Sd/- Sri B.N.Mohanty,

Dt.15.3.2021
SESSIONS JUDGE,
SAMBALPUR.

Dictated and corrected by me and

pronounced in the open Court on this
the 15th day of March, 2021, under my
signature and seal of this Court.

Sd/- Sri B.N.Mohanty,

Dt.15.3.2021
SESSIONS JUDGE,
SAMBALPUR.

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