Orissa High Court
Afr Jugeswar Majhi @ Buti & Ors vs State Of Orissa on 23 July, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 149 of 2005
(From the judgment and order dated 05.02.2005 passed by
learned Sessions Judge, Kalahandi at Bhawanipatna in
S.C. No. 17 of 2001)
AFR Jugeswar Majhi @ Buti & Ors. ..... Appellants
-Versus-
State of Orissa ..... Respondent
Advocate(s) appeared in this case through hybrid mode:
For Appellant(s) : Mr. Chiranjeevi Vidyabhusan,
Advocate
For Respondent(s) : Mr. Partha Sarathi Nayak,
Addl. Government Advocate
__________________________________________________________
CORAM:
THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA
Date of Hearing :30.06.2026 :: Date of Judgment:23.07.2026
SASHIKANTA MISHRA, J.
The appellants faced trial in Sessions Case No.
17 of 2001 in the Court of the learned Sessions Judge,
Kalahandi, for offences under Sections 147, 148, 447, 325,
Page 1 of 20
302 and 302 read with Section 149 of the Indian Penal
Code. By judgment dated 05.02.2005, the Sessions Court
convicted appellant Pustam @ Purusottam Majhi under
Section 302 IPC and sentenced him to undergo
imprisonment for life and to pay a fine of Rs.2,000/-, in
default, to undergo rigorous imprisonment (RI) for one
year. The remaining appellants were acquitted of the
charge under Section 302 read with Section 149 IPC, but
were convicted under Sections 147, 148 and 447 IPC as
well as under Section 325 read with Section 149 IPC. They
were sentenced to undergo RI for one year each for the
offence under Section 147 IPC, RI for two years each for
the offence under Section 148 IPC, RI for three months
each for the offence under Section 447 IPC and RI for three
years each for the offence under Section 325 read with
Section 149 IPC. All substantive sentences were directed to
run concurrently. Be it noted that the appeal, in respect of
appellant No.1- Pustam @ Purusottam Majhi and appellant
No.3-Jaladhar Majhi has abated due to their death during
the pendency of the appeal.
Page 2 of 20
2. Prosecution case, briefly stated, is as follows:
On 05.04.2000 at about 6.00 a.m., the informant,
the deceased Sahadev Patel and other members of the
deceased family had gone to the case land measuring
Ac.6.51 decimals for collecting mahua flowers. While they
were collecting the mahua flowers, the accused persons
forming an unlawful assembly and being armed with lathis,
tangias and arrows, reached the spot, abused the members
of the deceased family and questioned their possession
over the case land. When the deceased claimed that the
land belonged to them based on a decree passed by the
Court, appellant No.1, Pustam @ Purusottam Majhi, dealt
two to three lathi blows on his head, causing him to fall
down with bleeding injuries. The remaining accused
persons assaulted the deceased and the other members of
the deceased family with the weapons in their hands,
causing grievous and simple injuries to several of them.
The injured persons were shifted to Junagarh Hospital for
treatment. On being informed by one Nilachal Patel orally,
which was reduced into writing later, the police reached
the hospital and registered the FIR under Sections 147,
Page 3 of 20
148, 447, 294, 325, 323, 324 and 149 of IPC. Duringtreatment, Sahadev Patel succumbed to the injuries on
07.04.2000.
According to prosecution, there existed a long-
standing dispute between the prosecution and the accused
persons with regard to possession of the case land, on
which several mahua trees were standing. It is stated that
the land had been purchased by the grandfather of the
deceased about thirty years prior to the occurrence and he
had been in continuous possession thereof. When the
accused persons attempted to interfere with such
possession, a proceeding under Section 145 of the Code of
Criminal Procedure was initiated, wherein possession of
the prosecution party over the disputed land was declared.
On the previous day of the occurrence, i.e., on 04.04.2000,
while the deceased and other members of his family had
gone to the case land to collect mahua flowers, some of the
accused persons questioned their right over the land,
which resulted in a quarrel between them.
Page 4 of 20
After completion of investigation, charge-sheet was
submitted against the accused persons under Sections
147, 148, 447, 294, 325, 324, 323 of IPC, and 302/149
IPC.
3. Accused took the plea of denial and false
implication.
4. To prove its case, prosecution examined nineteen
witnesses and exhibited twenty-five documents. Besides,
prosecution proved seven material objects. The defence, on
the other hand, did not examine any witness but exhibited
two documents.
5. The trial Court, after analyzing the oral and
documentary evidence on record held that the evidence of
the injured eyewitnesses was trustworthy and duly
corroborated by medical evidence. It also held that the
prosecution established that the family of the deceased was
in possession of the case land and that the accused
persons were the aggressors. The Court found that
appellant No.1, Pustam @ Purusottam Majhi, had dealt two
to three lathi blows on the head of the deceased, resulting
Page 5 of 20
in his death, and held him guilty under Section 302 IPC.
However, it came to the conclusion that the common object
of the unlawful assembly was not to commit the murder of
the deceased but to prevent the deceased and his family
members from enjoying possession of the case land by
causing grievous hurt. Therefore, while convicting the
remaining appellants for the offences under Sections 147,
148 and 447 IPC and under Section 325 read with Section
149 IPC, the trial Court acquitted them of the charge under
Section 302 read with Section 149 IPC.
6. Heard Mr. C. Vidyabhusan, learned counsel for the
appellants and Mr. Partha Sarathi Nayak, learned Addl.
Government Advocate for the State.
7. Mr. Vidyabhusan assails the impugned judgment
of conviction on the following grounds:
i. The occurrence arose out of a sudden quarrel over
a long-standing land dispute and the prosecution
failed to establish the existence of an unlawful
assembly or a common object so as to attract
Section 149 IPC.
Page 6 of 20
ii. The prosecution evidence is inconsistent regardingthe role and participation of the appellants and is
not supported by recovery of any weapon of
offence.
iii. The conviction under Section 325 read with Section
149 IPC is unsustainable as the prosecution failed
to prove grievous hurt at the hands of the
appellants.
iv. The conviction under Section 447 IPC is
unsustainable as the prosecution failed to prove
exclusive possession over the disputed land, which
was admittedly the subject matter of a long-
standing land dispute.
8. Mr. Nayak, learned State Counsel, on the other
hand, would submit that the prosecution has proved its
case beyond all reasonable doubts by leading cogent
evidence. According to him, the testimony of the injured
eyewitnesses is consistent, trustworthy and stands fully
corroborated by medical evidence as well as the evidence of
the investigating officers. He also submits that merely
Page 7 of 20
because the appellants were acquitted of the charge under
Section 302 read with Section 149 IPC, it cannot be said
that the unlawful assembly or its common object stood
disproved. The trial Court, upon appreciation of the
evidence, came to the conclusion that the common object
of the unlawful assembly was to cause grievous hurt to the
members of the family of the deceased and it has rightly
convicted the appellants under Sections 147, 148 and 447
IPC as well as under Section 325 read with Section 149
IPC. He further argues that the findings recorded by the
trial Court are based on appreciation of the oral and
documentary evidence and do not warrant interference by
this Court.
9. We have given our anxious consideration to the
rival submissions and carefully examined the oral and
documentary evidence on record as well as the impugned
judgment.
10. At the outset, the existence of a long-standing
dispute relating to the case land is beyond controversy. The
prosecution has consistently claimed that the land
Page 8 of 20
belonged to the father of the deceased and that proceedings
under Section 145 Cr.P.C. was initiated against the
accused persons. Also, the defence itself has relied upon
Ext.-A, which establishes that proceedings under Section
145 Cr.P.C. was pending between the parties in respect of
the same property. Thus, the existence of the land dispute
stands admitted by both sides. The defence has also not
disputed the presence of the appellants at the place of
occurrence. On the contrary, their case proceeds on the
footing that they had gone to the disputed land to resist the
victims from collecting Mahua flowers. This circumstance
itself explains the genesis of the occurrence.
11. We have independently examined the evidence of
the injured eyewitnesses, namely PW-6, PW-7, PW-8, PW-9,
PW-10 and PW-13. Though they are related to the
deceased, they are also injured in the same occurrence.
Their presence at the place of occurrence is therefore
natural and stands corroborated by the injury reports
proved through PW-17. Merely because the witnesses are
related to the deceased, their evidence cannot be
discarded. Rather, greater weight attaches to the testimony
Page 9 of 20
of an injured witness unless compelling reasons exist to
reject it. No material has been brought on record by the
defence to show that these witnesses had any reason to
falsely implicate the appellants while sparing the real
offenders.
12. The evidence of all the injured witnesses is fully
consistent in material particulars regarding the
occurrence. They have deposed that on the morning of
05.04.2000 they had gone to the case land for collecting
Mahua flowers when the accused persons arrived there
armed with lathis, tangias and arrows, questioned their
possession over the land and thereafter assaulted them.
They consistently attribute the first assault on the
deceased Sahadev Patel to Purusottam Majhi, who dealt
lathi blows on his head causing him to fall down with
bleeding injuries. They have further stated that thereafter
Bhika Majhi and Jaladhar Majhi assaulted the right hand
of the deceased. The evidence also consistently establishes
that the remaining accused simultaneously assaulted the
other members of the prosecution party causing injuries to
several of them.
Page 10 of 20
13. Mr. Vidyabhusan has laid emphasis on the
discrepancies regarding the specific overt acts attributed to
individual accused persons and the weapons used by
them. We are unable to accept the submission for the
reason that the occurrence involved several assailants
armed with different weapons and a number of injured
persons. Minor variations with regard to the exact number
of blows, the weapon carried by a particular accused or the
sequence of assault are but natural. Such discrepancies
neither affect the substratum of the prosecution case nor
demolish the consistent version regarding the participation
of the appellants. It is the duty of the Court to separate the
grain from the chaff. In the present case, the discrepancies
pointed out by the defence relate only to minor details,
whereas the injured eyewitnesses have consistently stated
that the appellants came together armed with weapons and
jointly assaulted the deceased and the injured persons.
Their evidence on the material particulars of the
occurrence stands corroborated by medical evidence.
Reference in this regard may be had to the judgment of the
Supreme Court in Gangadhar Behera and Others v.
Page 11 of 20
State of Orissa1, wherein it has been held that minor
discrepancies or embellishments which do not affect the
core of the prosecution case are liable to be ignored.
14. As regards absence of recovery of weapons of
offence, it is well settled that recovery of the weapon is only
a corroborative circumstance. Where the prosecution case
rests upon the evidence of injured eyewitnesses that is
cogent and trustworthy and stands substantially
corroborated by medical evidence, non-recovery of the
weapon by itself does not weaken the prosecution case. In
the present case, the medical evidence fully supports the
ocular version regarding the nature and site of injuries
sustained by the deceased and the injured witnesses.
15. As regards the existence of unlawful assembly, we
are of the view that the evidence of the injured
eyewitnesses consistently establishes that all the accused
persons came together to the disputed land armed with
lathis, tangias and arrows, questioned the possession of
the victims and immediately assaulted them. In view of the
1
(2002) 8 SCC 381
Page 12 of 20
previous land dispute the accused persons must be
deemed to have prior knowledge of the rival claim over the
property, yet they assembled together and confronted the
victims while they were collecting Mahua flowers. Such
conduct clearly establishes that they acted in furtherance
of a common object. Merely because the trial Court
acquitted the remaining appellants of the charge under
Section 302 read with Section 149 IPC, it does not follow
that the unlawful assembly or its common object stood
disproved. On the evidence on record, we find that the
common object of the assembly was to prevent the victims
from exercising possession over the disputed land by
causing grievous hurt and therefore the trial Court has
rightly held them guilty under section 149 IPC. In the case
of Gangadhar Behera (Supra), the Supreme Court has
held as follow:
“23. “Common object” is different from a “common
intention” as it does not require a prior concert and a
common meeting of minds before the attack. It is
enough if each has the same object in view and their
number is five or more and that they act as an
assembly to achieve that object. The “common object”
of an assembly is to be ascertained from the acts and
language of the members composing it, and from a
consideration of all the surrounding circumstances. It
may be gathered from the course of conduct adopted
Page 13 of 20
by the members of the assembly. What the common
object of the unlawful assembly is at a particular
stage of the incident is essentially a question of fact to
be determined, keeping in view the nature of the
assembly, the arms carried by the members, and the
behaviour of the members at or near the scene of the
incident. It is not necessary under law that in all
cases of unlawful assembly, with an unlawful
common object, the same must be translated into
action or be successful. Under the Explanation to
Section 141, an assembly which was not unlawful
when it was assembled, may subsequently become
unlawful. It is not necessary that the intention or the
purpose, which is necessary to render an assembly
an unlawful one comes into existence at the outset.
The time of forming an unlawful intent is not material.
An assembly which, at its commencement or even for
some time thereafter, is lawful, may subsequently
become unlawful. In other words it can develop during
the course of incident on the spot eo instanti.
24. Section 149 IPC consists of two parts. The first
part of the section means that the offence to be
committed in prosecution of the common object must
be one which is committed with a view to accomplish
the common object. In order that the offence may fall
within the first part, the offence must be connected
immediately with the common object of the unlawful
assembly of which the accused was a member. Even
if the offence committed is not in direct prosecution of
the common object of the assembly, it may yet fall
under Section 141, if it can be held that the offence
was such as the members knew was likely to be
committed and this is what is required in the second
part of the section. The purpose for which the
members of the assembly set out or desired to achieve
is the object. If the object desired by all the members
is the same, the knowledge that is the object which is
being pursued is shared by all the members and they
are in general agreement as to how it is to be achieved
and that is now the common object of the assembly.
An object is entertained in the human mind, and it
being merely a mental attitude, no direct evidence can
be available and, like intention, has generally to be
gathered from the act which the person commits and
the result therefrom. Though no hard-and-fast rule can
be laid down under the circumstances from which the
common object can be culled out, it may reasonably be
Page 14 of 20
collected from the nature of the assembly, arms it
carries and behaviour at or before or after the scene of
incident. The word “knew” used in the second branch
of the section implies something more than a
possibility and it cannot be made to bear the sense of
“might have been known”. Positive knowledge is
necessary. When an offence is committed in
prosecution of the common object, it would generally
be an offence which the members of the unlawful
assembly knew was likely to be committed in
prosecution of the common object. That, however, does
not make the converse proposition true; there may be
cases which would come within the second part but
not within the first part. The distinction between the
two parts of Section 149 cannot be ignored or
obliterated. In every case it would be an issue to be
determined, whether the offence committed falls
within the first part or it was an offence such as the
members of the assembly knew to be likely to be
committed in prosecution of the common object and
falls within the second part. However, there may be
cases which would be within the first, offences
committed in prosecution of the common object would
be generally, if not always, within the second,
namely, offences which the parties knew were likely
to be committed in the prosecution of the common
object.”
16. We are also unable to accept the submission that
Section 149 IPC is inapplicable because no specific overt
act has been attributed to every appellant. Once the
prosecution establishes that the accused persons
constituted an unlawful assembly sharing a common
object and actively participated in the occurrence, it is not
necessary to prove separate overt act against each member.
The evidence of the injured witnesses clearly establishes
that all the appellants came together armed with weapons
Page 15 of 20
and participated in the assault. The fact that Purusottam
Majhi inflicted the fatal head injury and Bhika Majhi and
Jaladhar Majhi caused fracture injuries does not absolve
the remaining members of the unlawful assembly from the
liability arising out of the common object established by
the prosecution.
17. As regards the challenge to the conviction under
Section 325 read with Section 149 IPC, we are of the view
that the injury reports and the evidence of PW-17 establish
that Sahadev Patel and PW-6 sustained fracture injuries,
which were opined to be grievous in nature. The ocular
evidence consistently attributes the fracture injury on the
right hand of the deceased to the assault made by Bhika
Majhi and Jaladhar Majhi after Purusottam Majhi caused
the head injuries. Once the existence of fracture stands
proved by the medical evidence, the injury squarely falls
within the ambit of grievous hurt. Reference in this regard
may be had to the judgement of the Supreme Court in the
Page 16 of 20
case of Hori Lal v. State of U.P.2, wherein it has held as
follows:
“7. It is contended by the learned Counsel for the
appellant that none of the Injuries 2 to 6 which were
inflicted on PW 2 discloses that there is a fracture or
dislocation of any bone. These injuries, it is said, at
the most show that the particular bones on which the
injuries were inflicted were cut which, however, does
not amount to a fracture. It is true that fracture has
not been defined in the Penal Code. It is sometimes
thought as in the case of Po Yi Maung v. Ma E Tin [A
(1937) Rang 253] that the meaning of the word
fracture would imply that there should be a break in
the bone and that in the case of a skull bone it is not
merely sufficient that there is a crack but that the
crack must extend from the outer surface of the skull
to the inner surface. In Mutukdhar Singh v. Emperor [A
(1942) Pat 376] it was observed that if the evidence is
merely that a bone has been cut and there is nothing
whatever to indicate the extent of the cut, whether a
deep one or a mere scratch on the surface of the bone,
it will be difficult to infer that the injury is a grievous
hurt within the meaning of Section 320 of the Penal
Code. In our view, both these assumptions are
misleading. It is not necessary that a bone should be
cut through and through or that the crack must extend
from the outer to the inner surface or that there should
be displacement of any fragment of the bone. If there
is a break by cutting or splintering of the bone or there
is a rupture or fissure in it, it would amount to a
fracture within the meaning of clause 7 of Section 320.
What we have to see is whether the cuts in the bones
noticed in the injury report are only superficial or do
they effect a break in them. The nature of the injuries
as spoken to by the doctor in his evidence, discloses
the length, breadth and depth of each injury. So far as
the depth of the Injuries 3, 4, 5 and 6 is concerned,
each one of the injuries shows that it is bone deep and
they are described as cutting the underlying bone. In
Injury 3 left humerus, in Injury 4 radius, in Injury 5
both the bones of the left forearm and Injury 6 the
tibia bone shaft have been cut which would show that
they are fractures. Apart from this the doctor as
2
(1970) 1 SCC 8
Page 17 of 20
noticed earlier has in his evidence said that these
injuries are grievous. It is contended that the doctor
has not disclosed the reason why he thinks that the
injuries were grievous. But in our view the doctor
would not be unaware of what injuries are grievous or
what are simple. At any rate, the nature of the injuries
considered with the evidence of the doctor would
undoubtedly establish that all the aforesaid injuries
were grievous. These injuries were inflicted by Kantas
which are dangerous weapons and hence the
conviction under Section 326 is fully justified.”
[Emphasis added]
The conviction under Section 325 read with Section
149 IPC therefore does not warrant interference.
18. The contention of Mr. Vidyabhusan regarding the
offence under Section 447 IPC is also liable to be rejected.
Merely because there existed a civil dispute regarding the
property does not confer any right upon the appellants to
enter the land in possession of the victims being armed
with deadly weapons and to assault its occupants. The
subsequent demarcation conducted by the Revenue
Inspector on the requisition of the Investigating Officer also
found the land recorded in the name of the predecessor of
the victims. The appellants, must therefore, be held to have
entered the land not in exercise of any lawful right but with
the intention of intimidating, assaulting and dispossessing
Page 18 of 20
the victims. The ingredients of criminal trespass thus
stand fully established.
19. For the foregoing reasons therefore, we find none of
the grounds urged to challenge the impugned judgment
valid enough to persuade us to take a different view than
what was taken by the trial Court. On the other hand, we
have carefully gone through the impugned judgment and
the evidence on record to be independently satisfied that
the trial Court has recorded the conviction correctly. We
are therefore, not persuaded to interfere with the impugned
order of conviction.
20. However, this is a case of the year 2005. All the
appellants are aged more than 50 year or thereabouts. All
of them were in custody for some time during trial and are
rustic villagers. Keeping in view the above facts we are
inclined to release them on probation instead of directing
them to serve the sentence imposed at this distance of
time.
21. In the result, the appeal is allowed in part. While
maintaining the order of conviction, we direct the
Page 19 of 20
appellants to be released under section 4 of the Probation
of Offenders Act. For such purpose, the appellants shall
appear before the Trial Court on 17th August, 2026. It is
made clear that if the appellants do not appear on the date
fixed, this order shall not operate and necessary orders
shall be passed to take them to custody to serve the
remaining part of their sentence as imposed originally.
……………………………………
Sashikanta Mishra, J.
Manash Ranjan Pathak, J. I agree.
…………………………………….
Manash Ranjan Pathak, J.
Orissa High Court, Cuttack
The 23rd July, 2026/ A.K. Rana, P.A.
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 23-Jul-2026 16:10:16
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