Orissa High Court
(1) Bhusan Sahu (Dead) vs State Of Odisha on 12 February, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.209 of 1999
(From the judgment and order dated 26.7.1999 passed by
learned Addl. Sessions Judge, Jharsuguda in S.T. Case
No.94/3 of 1993-99)
(1) Bhusan Sahu (dead)
(2) Rambabu Sahu ... Appellants
-versus-
State of Odisha ... Respondent
Advocates appeared in the case through hybrid mode:
For Appellants : Ms.Agnisikha Ray,
Advocate
-versus-
For Respondent
: Mr. Debaraj Mohanty,
A.G.A.
---------------------------------------------------------------------------
CORAM:
THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA
JUDGMENT
12.2.2026
C.R.A. No.209 of 1999 Page 1 of 20
Sashikanta Mishra,J. The appellants question the correctness of
judgment dated 26.7.1999 passed by learned Addl.
Sessions Judge, Jharsuguda in S.T. case No.94/3 of 1993-
99 whereby they were convicted for the offence punishable
under Section 302 I.P.C. and sentenced to undergo
rigorous imprisonment for life.
2. Prosecution case, briefly stated, is that on 6.8.1992 at
about 9.00 P.M., while the informant Sighasan Yadav was
returning home after supplying milk to one Maheswar, the
owner of Satya Vijay Hotel, Jharsuguda in his factory, he
went to the said hotel near the Station Square to collect
money. While he was returning after collecting money, he
saw several persons gathered near Prince Hotel. When
Rambabu Sahu saw him, he said ‘MARA A MADORCHOOD
KU’. Hearing this, accused Bhusan Sahu, Trilok Yadav,
Sudarsan Yadav, Muna Yadav and other Ghasia persons,
whom he could not identify, chased him. They caught hold
of him in front of Tiwari Hotel (Jalpan) and severely
assaulted him. Triloknath Yadav assaulted him with a
bhujali on his left elbow and left leg causing bleeding
C.R.A. No.209 of 1999 Page 2 of 20
injuries and thereafter, they left the spot. When the
informant was returning home, he saw Satyendra, a
resident of his Pada, coming on Scooter to whom he said
that the assailants had assaulted him with bhujali and
requested him to give him a lift. Satyendra took him to his
home and from there took him to the hospital, where he
was treated. The assailants had also shot Srinivas, a
resident of his Pada, who was also treated in the hospital.
While being treated at Jharsuguda hospital, the informant
orally submitted the complaint to the OIC of Jharsuguda
P.S., which was reduced to writing. Subsequently,
Jharsuguda P.S. Case No.142/1992 was registered under
Sections 341/324/326/294 of IPC and Section 27 of the
Arms Act and investigation commenced. In course of
investigation, the statements of the witnesses including
that of the informant and the other injured Srinivas, were
recorded. Since the condition of Srinivas subsequently
became critical, his dying declaration was also recorded.
Soon thereafter, Srinivas succumbed to his injuries. Upon
completion of investigation, charge sheet was submitted
against the present accused persons under Sections
C.R.A. No.209 of 1999 Page 3 of 20
147/148/324/307/302/149 of IPC, Section 27 Arms Act
and Section 9B of the Indian Explosives Act.
3. The plea of the accused persons was of denial and of
false implication.
4. To bring home the charges, prosecution examined
twenty witnesses and proved twenty-three documents.
Defence did not adduce any evidence, either oral or
documentary.
5. Learned Sessions Judge found that the evidence of
P.Ws.7 to 12 is material to the case, they being eye-
witnesses to the occurrence. As such, their evidence was
meticulously analyzed and found to be consistent and in
corroboration of each other.
6. The defence arguments with regard to contradictions
were brushed aside as inconsequential. The medical
evidence was found to corroborate the ocular evidence. As
regards the dying declaration, the prosecution projected
two statements, one marked Ext-7 being recorded by the
treating doctor and the other, Ext-19, the statement
C.R.A. No.209 of 1999 Page 4 of 20
recorded by the I.O. under Section 161 of Cr.P.C. Though
there was some discrepancy in both statements as regards
the names of the assailants, the trial Court felt persuaded
to accept both as the same was fully consistent with the
eye-witnesses’ accounts. On such evidence and findings
based thereon, the trial Court held the charges proved
against the accused persons under Section 302 of I.P.C.
and therefore convicted them. As regards sentence, the
trial Court, after hearing the convicts, imposed
imprisonment for life. Be it noted that another accused,
who faced trial with the present appellants namely, Triloki
Yadav for assaulting the informant was convicted under
Section 324 of I.P.C. and was sentenced to rigorous
imprisonment for there months. Being aggrieved, the
appellants namely, Bhusan Sahu and Rambabu Sahu have
filed the present appeal.
7. Heard Ms. A. Ray, learned counsel for the accused-
appellants and Mr. Debaraj Mohanty, learned Addl.
Government Advocate for the State.
C.R.A. No.209 of 1999 Page 5 of 20
8. Before delving into the rival contentions of the parties,
we feel it proper to analyze the evidence independently. As
already stated, P.Ws.7 to 12 are eye witnesses. We have
carefully perused their deposition. As regards the
occurrence, we find that it is the consistent case of all
these witnesses that they had seen both the accused
persons firing at Srinibas Yadav (deceased), causing bullet
injury on his abdomen and right leg. There is consistency
as regards the place of occurrence i.e. near Prince Hotel
and Durga Mandap as also the weapons used by the
assailants. It is stated by them that accused Bhusan was
holding a small gun while Rambabu Sahu was holding a
pistol. Their testimonies are well supported by medical
evidence i.e. of P.Ws.4, 5 and 6 as also the injury report
Ext-8. Two dying declarations have been pressed into
service, one purporting to be a statement recorded under
Section 161 Cr.P.C. by the I.O. (Ext-19) and the other,
recorded by the doctor (Ext-7). Learned counsel for the
appellants has raised serious objections in this regard,
which we shall advert to later. But it ex facie appears that
there is cogent evidence through eye witness accounts
C.R.A. No.209 of 1999 Page 6 of 20
showing the complicity of the accused persons with the
crime, which is what the trial Court has held.
9. Coming to the defence objections, Ms. Ray has
assailed the impugned judgment on the following grounds;
(i) There is suppression of F.I.R. and the F.I.R. marked
Ext- 11 is manufactured.
(ii) There is delay in lodging of F.I.R. (iii) Independent witnesses have not been examined. (iv) The evidence of the eye witnesses is contradictory to each other. (v) Two dying declarations vide Exts-7 and 19 are doubtful. (vi) The ballistic test report disproves the case of prosecution.
(vii) There is evidence of enmity between the accused
persons and the so-called eye witnesses for which their
version becomes interested.
10. Per contra, Mr. Debaraj Mohanty, learned Addl.
Government Advocate, submits that the objections raised
are not strong enough to demolish the direct evidence
C.R.A. No.209 of 1999 Page 7 of 20
available in the case through the version of the eye
witnesses. All eye witnesses have consistently deposed
about the presence of the accused persons at the spot, the
weapons used by them, the injuries sustained by the
deceased resulting in his death etc. There may be minor
contradictions, but the Trial Court has rightly brushed
aside the same as the witnesses being examined more than
five years after the occurrence cannot be expected to
render versions of the occurrence parrot-like and with
precision.
11. Coming to the grounds raised by Ms. Ray as noted
above, it is argued that according to the informant
(P.W.10), he submitted report orally to the police at the
hospital and that he signed on it after it was reduced to
writing and he gave his signature thereon. Said F.I.R. is
marked Ext-11. There is, however, evidence on record of
the OIC that after receiving information about the firing, he
made a Station Diary Entry and directed the S.I – A.C.
Rana to take up investigation. The time of lodging of F.I.R.
has not been mentioned in the formal F.I.R., but it
C.R.A. No.209 of 1999 Page 8 of 20
mentions that it was received at the spot. This, according
to Ms. Ray, implies that Ext-11 was manufactured and the
earlier F.I.R. was suppressed. On the above context, Ms.
Ray relies on a judgment of the Supreme Court passed in
the case of Nand Lal and Ors. v. The State of
Chhattisgarh.1
12. Mr. Debaraj Mohanty submits that the informant
(P.W.10) clearly deposed that he orally lodged the report
when police came to the hospital where he was being
treated. This was subsequently reduced to writing and the
case was registered.
13. After going through the materials on record, including
the F.I.R. marked Ext-11 and the deposition of informant
(P.W.10), we are satisfied that there is no material worth
the name to hold that Ext-11 is a manufactured document.
P.W.10 categorically stated that when police came to the
hospital, he gave the report orally and after it was written
and read over to him, he put his signature. He also
identified his signature on the F.I.R. (Ext.11/1). The
1
2023 LiveLaw (SC) 186
C.R.A. No.209 of 1999 Page 9 of 20
contention of Ms. Ray is therefore, untenable. The case law
cited by her is distinguishable on facts and hence, not
applicable.
14. As regards delay, Ms. Ray contends that though
P.W.10 says that he lodged the F.I.R. orally in the hospital
on 6.8.1992, which was registered on 07.8.1992 at 10.30
A.M. yet investigation had already begun prior to that. Mr.
Mohanty submits that investigation had commenced
basing on the oral report and therefore, it cannot be said
that there was any delay.
15. We are of the view that there is no evidence to show
that there was delay in lodging of the F.I.R. inasmuch as
the occurrence took place around 9.30 P.M. while the oral
report was submitted at 11 P.M. at the hospital itself. It
was as prompt as it could be. True, it was registered on the
next day at 10.30 A.M. but then delay in registration of the
F.I.R. is not the same thing as delay in lodging F.I.R. We
therefore, do not accept the contention of Ms. Ray in this
regard.
C.R.A. No.209 of 1999 Page 10 of 20
16. Ms. Ray has contended that the occurrence,
according to prosecution, having taken place in a public
place, it was incumbent upon the prosecution to examine
the nearby shop owners or at least the owners of the hotel.
Mr. Mohanty would submit that the I.O. has explained in
his evidence why he could not examine any independent
witness because none came forward to talk about the
occurrence. This plea was raised by the defence also during
trial. The trial Court held, and according to us rightly so,
that the nearby shop owners did not come forward to speak
about the occurrence before the I.O. out of fear. This is a
very natural reaction. It would have assumed significance
had there been no direct evidence, but not so in a case as
the present one, where there are eye-witnesses to the
occurrence.
17. Ms. Ray has pointed out some contradictions in the
statements of P.Ws.8 to 12. Mr. Mohanty, on the other
hand, fairly submits that there are some contradictions but
the same are not material enough to discard their
testimonies altogether.
C.R.A. No.209 of 1999 Page 11 of 20
18. We have also noticed certain discrepancies in the
statements of the witnesses. For instance, P.W.8 stated
that the accused persons first started pelting stones and
thereafter Ram went to the Durga Mandap with a gun and
Bhusan was holding a pistol whereas P.W.9, stated that his
brother P.W.8 came to the spot with a cycle and stood near
them and when they wanted to go near Prince Hotel, stones
and brickbats were pelted at them. Thereafter, Ram went to
Durga Mandap and Bhusan was standing near the Prince
Hotel. P.W.9 stated that he, P.W.8 and others came out of
Ananda Bhawan, but P.W.8 never said anything about it.
P.W.9 also did not say that Srinivas came there by his
cycle and stood near them. P.W.10 has not stated anything
about the firing of the gun and pistol by the accused
persons and admitted that he came to know about it only
in the hospital. These are minor contradictions which the
trial Court has rightly brushed aside as the witnesses
being basically illiterate persons were deposing more than
five years after the occurrence. It is but natural for them to
be a big sketchy in their description of the occurrence,
C.R.A. No.209 of 1999 Page 12 of 20
where, leaving out minor details can only be expected. If
the core of their testimony is found to be consistent and
reliable, these minor contradictions would have no
consequence.
19. Ms. Ray has forcefully argued that the findings of the
trial Court basing on the two dying declarations are
entirely untenable. She submits that the first dying
declaration was recorded by P.W.17, the JSI and marked
Ext-19. He admitted in cross-examination that the
condition of the deceased was serious when he arrived and
that he had not taken any permission from the doctor to
examine him. The doctor (P.W.20) stated that when the
deceased was admitted to the hospital, his condition was
serious for which he was referred to VSS MCH, Burla. He
also stated that he had received requisition to record the
dying declaration but as the patient was not in a fit
condition, he was not able to record it. Therefore, the
statement recorded under Ext-19 cannot be relied upon.
As regards the other dying declaration recorded vide Ext-7,
the doctor (P.W.5) clearly admitted that the condition of the
C.R.A. No.209 of 1999 Page 13 of 20
patient was critical and that he had been administered
certain injections. Ms. Ray points out that Ext-7 was not
recorded in question-answer format and the exact
statement given by the deceased has not been mentioned
verbatim. Moreover, in the subsequent statement, the
deceased stated about the involvement of some other
persons as opposed to his own statement recorded vide
Ext-19. In the above context, Ms. Ray relies on a judgment
of the Supreme Court passed in the case of Irfan@ Naka
v. The State of Uttar Pradesh.2
20. Mr. Mohanty, on the other hand, would submit that
there is no discrepancy in the evidence at all for the reason
that on the first occasion (Ext-19), the condition of the
deceased was critical for which the Police Officer thought it
proper to question him about the case. Since he clearly
mentions the names of the appellants as being the
assailants and subsequently died, it has to be treated as a
dying declaration. As regards the other discrepancy pointed
out in respect of Ext-7, Mr. Mohanty would argue that the
2
2023 LiveLaw (SC) 698
C.R.A. No.209 of 1999 Page 14 of 20
deceased had clearly mentioned the name of accused
Bhusan and Puranbabu, who is also known as Rambabu
Sahu as per the evidence of P.W.9.
21. A dying declaration is a statement given by a person
who is apprehending death. It is an exception to hearsay
rule and is therefore, relevant as per Section 32 of the
Indian Evidence Act. There is no dispute that the deceased
having received gunshot injuries was in a serious
condition. The Police Officer therefore, thought it proper to
record his statement, which according to us, was the right
thing to do at that point of time. Though it is not stated
that the deceased was apprehending death, yet the same is
not sine qua non for his statement to be treated as a dying
declaration in view of the proximity of the time of recording
of the said statement (Ext-19) and of his death which was
on 10.8.1992. It is well settled that unlike the English Law,
Section 32 does not require that the dying declaration
would be admissible in evidence only when the same is
made in expectation of death. Reference in this regard may
be had to the judgment of the Supreme Court in the case of
C.R.A. No.209 of 1999 Page 15 of 20
B. Shashikala v. State of A.P.3. It is also well settled
that for a statement to be treated as a dying declaration, it
must relate to the cause of his death or to any of the
circumstances of the transaction which resulted in his
death. Reference in this regard may be had to the judgment
of the Supreme Court in the case of Jayendra
Saraswathi Swamigal v. State of T.N.4. In the first
statement (Ext-19) the deceased clearly named the
assailants (present appellants) as having fired at him. This
is enough. So far as the other statement is concerned, the
same was recorded by the doctor (P.W.5) in presence of
another doctor who was of course not examined. We do not
accept the objection that the same was not recorded in a
question-answer format. According to our considered view,
form is not important, substance is. As regards the
discrepancy in the name of the assailants in Ext-7, we find
that the trial Court has also addressed the point correctly.
The name of Bhusan finds place in both the statements.
The name of one Puranbabu is also mentioned. P.W.9 in
his statement has stated that Rambabu is also known as
3
(2004) 13 SCC 249
4
(2005) 2 SCC 13
C.R.A. No.209 of 1999 Page 16 of 20
Puranbabu, which has gone unchallenged in cross-
examination. The name of one Shyambabu has been
mentioned only to be discarded by the trial Court and
according to us, rightly so. Thus barring this single
discrepancy, there is nothing to disbelieve the dying
declaration vide Ext-7, which is consistent with Ext-19.
22. Ms. Ray has forcefully argued that the ballistic report
being contrary to the prosecution case, the finding of guilt
could not have been arrived at. Mr. Mohanty would submit
that in a case resting on direct evidence, the ballistic
evidence cannot assume any significance. We have perused
the ballistic report marked Ext-18. It does not support the
case of the prosecution. The person conducting the ballistic
test was not examined, but then this would go down as a
lapse in investigation, if at all and nothing more. In any
case, it is well settled that non-examination of the ballistic
expert on the face of direct evidence cannot be fatal to the
case of prosecution as held by the Supreme Court in the
case of Gurcharan Singh v. State of Punjab5. As regards
5
1962 SCC OnLine SC 42
C.R.A. No.209 of 1999 Page 17 of 20
the mismatch between the ballistic report and the
prosecution case, all that can be reasonably interfered
therefrom is that possibly the actual weapons used in the
occurrence were not recovered or sent for examination. It
could have been lapse in investigation also. Even
otherwise, it is well settled that when there is direct and
acceptable eye witness version of the crime, merely
because of mismatch between the ballistic report and the
gun/bullets recovered, the eye witness account cannot be
rejected. Such a view was taken by the Supreme Court in
the case of Rakesh v. State of U.P.6
23. Ms. Ray argues that there is clear evidence that on
the same day of occurrence a case was registered against
P.Ws.8 to 12 and they were facing trial in a Sessions Case
under Sections 148/336 and 426 of .P.C. They are
supporters of Dhirendra Singh while the accused persons
are supporters of Meena Singh between whom there is a
land dispute pending. Ms. Ray therefore, argues that the
evidence of these witnesses ought to be disbelieved as they
6
(2021) 7 SCC 188.
C.R.A. No.209 of 1999 Page 18 of 20
are interested. In the above context, Ms. Ray relies on a
judgment of the Supreme Court passed in the case of Nand
Lal (Supra).
24. Mr. Mohanty, on the other hand, would argue that
enmity is treated as a double-edged weapon and as per the
settled position of law, the interested witnesses cannot be
expected to blame a person not connected with the crime
and thereby allow the actual offender to go scot free.
25. We find that the trial Court has addressed this issue
meticulously and took the view as raised by Mr. Mohanty
referred above. We are also of the view that only because
the witnesses could be said to have some interest in the
matter cannot and does not mean that they were shielding
the real offender. Even otherwise, when the deceased
himself has identified the assailants, the version of these
witnesses only goes to corroborate such statement.
26. Thus, we find that none of the grounds urged to
challenge the impugned judgment are valid enough to
persuade us to take a different view than what was taken
C.R.A. No.209 of 1999 Page 19 of 20
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 judgment and
sentence.
27. In the result, the appeal fails and is therefore,
dismissed. The accused-appellants being on bail, their bail
bonds be cancelled and they be taken to custody forthwith
to serve the sentence imposed.
……………………………………
Sashikanta Mishra, J.
Manash Ranjan Pathak, J.
…………………………………….
(Manash Ranjan Pathak,J.)
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Designation: A.D.R.-cum-Addl. Principal Secretary
Reason: Authentication Ashok Kumar Behera
Location: High Court of Orissa, Cuttack
Date: 12-Feb-2026 16:19:37
C.R.A. No.209 of 1999 Page 20 of 20