MANOJ KUMAR PAL vs STATE
- Court
- Odisha High Court
CRLA/321/2006
ODHC010003262006
2026:OHC:79-DB
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 321 of 2006
CNR No. ODHC010003262006
[An application under Section 374(2) of the Code of Criminal
Procedure from the judgment of conviction and sentence
dated 08.06.2006 passed by learned Addl. Sessions Judge,
Rairangpur in C.T. Case No.3 of 2006]
AFR Manoj Kumar Pal Appellant
….
-Versus-
State of Orissa
….. Respondent
Advocate(s) appeared in this case through hybrid mode:
For Appellant : Ms. Sasmita Nanda,
Legal Aid Counsel
For Respondent : Ms. Suvalaxmi Devi,
Addl. Standing Counsel
__________________________________________________________
CORAM:
THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA
Date of Hearing : 27.08.2026 :: Date of Judgment:01.09.2026
SASHIKANTA MISHRA, J.
The appellant, Manoj Kumar Pal, faced trial in C.T.
No. 3 of 2006 in the Court of the Additional Sessions Judge,
Rairangpur for committing the murder of one Pallabi Nanda
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and her son Susanta Nanda of village Laxmiposi and
attempting to commit the murder of her daughters, Susmita
Nanda and Sarmista Nanda, besides committing house-
trespass with intent to commit an offence punishable with
imprisonment for life. By judgment dated 08.06.2006, the
trial Court convicted him under Sections 302, 307 and 450
IPC and sentenced him to undergo imprisonment for life and
to pay a fine of Rs.10,000/-, in default to undergo RI for six
months for the offence under Section 302 IPC; RI for seven
years and to pay a fine of Rs.3,000/-, in default to undergo
RI for three months for the offence under Section 307 IPC;
and RI for five years and to pay a fine of Rs.3,000/-, in
default to undergo RI for three months for the offence under
Section 450 IPC. The sentences were directed to run
concurrently, with the period of detention undergone as an
under-trial prisoner being set off against the sentences.
2. Prosecution case, briefly stated, is as follows.
On the intervening night of 24/25.04.2004, at
midnight, the appellant entered the house of the informant,
Aswini Nanda in his absence and assaulted his wife, Pallabi
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and their children with a bhujali. As a result of the assault,
Pallabi and her son Susanta sustained fatal injuries and
died at the spot, while their daughters, Susmita and
Sarmista sustained injuries. It is stated that the occurrence
was witnessed by the younger son, Subrat Kumar Nanda
(PW-1), who, on hearing the commotion, concealed himself
underneath a palank (bed). According to the prosecution,
Susmita (PW-4) switched on a torch and focused its light on
the face of the assailant, whereupon P.Ws.1, 4 and 5
identified him as the appellant, who was known to the
family. On hearing the hullah and commotion coming from
the house, Anirudha Nanda (PW-3), the elder brother of the
informant, whose house was situated nearby, came to the
spot and saw a person coming out of the house and fleeing
away. On entering the house, he found Pallabi and Susanta
dead and Susmita and Sarmista injured. PW-3 thereafter
shifted the injured to the S.D. Hospital, Rairangpur, for
treatment. The informant, who was away from home on
work as a bus driver, returned in the morning after
receiving information about the incident. He found his wife
and son lying dead inside the room and was informed by
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PW-1 that the appellant had committed the assault. On
such information, he lodged the FIR. On the basis of the
FIR, Bisoi P.S. Case No. 30 of 2004 was registered under
Section 302 IPC. Upon completion of investigation, charge-
sheet was submitted against the accused under Section
302/307 IPC.
3. The defence of the accused person was one of
complete denial and false implication. Defence also stated
that on the night of occurrence, he was at Jamsola and had
not been present at the place of occurrence. It was also
pleaded that following the recovery of a child’s dead body
near his house at village Luhakani in 2003, the villagers
had suspected him of criminal activities and had falsely
implicated him.
4. To prove its case, prosecution examined nine
witnesses and exhibited fifteen documents. That apart,
prosecution also proved five material objects. Defence, on
the other hand, did not adduce any evidence.
5. After analyzing the evidence on record, the trial
Court held that the death of deceased persons was
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homicidal and the prosecution had established the
involvement of the appellant through the evidence of the
eyewitnesses, particularly PWs.-1 and 4, corroborated by
the evidence of the injured witness PW-5 and the medical
evidence of PW-6. It also rejected the defence plea of
mistaken identity and tutoring of the child witnesses and
held the appellant guilty under Sections 302, 307 and 450
IPC. Accordingly, he was convicted and sentenced as stated
hereinbefore.
6. Heard Ms. Sasmita Nanda, learned Legal Aid
Counsel for the appellant and Ms. Suvalaxmi Devi, learned
Addl. Standing Counsel for the State.
7. Ms. Nanda assails the impugned judgment of
conviction on the following grounds:
i) The evidence of PWs.-1, 4 and 5 is
unreliable and suffers from material omissions,
contradictions and inconsistencies.
ii) PWs.-1 and 5 being child witnesses, their
testimony required careful scrutiny,
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particularly in view of the possibility of
tutoring.
iii) The identification of the appellant by the
witnesses in the darkness is doubtful and the
possibility of mistaken identity cannot be ruled
out.
iv) There is no independent corroboration of
the testimony of the interested witnesses.
v) The prosecution has failed to establish
any motive.
vi) The medical and other circumstantial
evidence does not connect the appellant with
the occurrence.
8. Per contra, Ms. Suvalaxmi would argue that the
impugned judgment calls for no interference. According to
her, the prosecution case is established by the consistent
testimony of PWs.-1 and 4, particularly PW-4, who is an
injured eyewitness and was well acquainted with the
appellant. Her evidence is corroborated by PW-1, PW-5 and
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the medical evidence of PW-6. The fact that PWs.-1 and 5
were children at the relevant time does not render their
testimony unreliable, there being no material to suggest
tutoring. The plea of mistaken identity is untenable as the
appellant was known to the witnesses earlier and was
identified in the torchlight. The evidence of PW-3 and the
medical evidence lend further support to the prosecution
case. The absence of proof of motive is immaterial where the
prosecution has otherwise established the guilt of the
appellant by reliable direct evidence.
9. We have heard learned counsel for the parties
and have taken note of the rival contentions. We have also
perused the case record and the impugned judgment.
10. At the outset, there is no dispute that the deaths
of Pallabi and Susanta were homicidal. PW-6, the doctor,
who conducted the post-mortem examinations found
multiple incised injuries on both the deceased. In the case
of Pallabi, injury No.1 was a deep incised wound across the
neck cutting the trachea, oesophagus, carotid vessels and
jugular veins. PW-6 opined that the injury was sufficient to
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cause death in the ordinary course of nature and the cause
of death was massive haemorrhage and shock. Similarly, in
the case of Susanta, injury Nos.1 and 2 were found
sufficient to cause death in the ordinary course of nature,
the cause of death again being massive haemorrhage and
shock. He further opined that the injuries could be caused
by weapon like bhujali. The medical evidence, therefore,
establishes that the deaths were homicidal and were the
result of injuries caused by a sharp-cutting weapon. The
injuries found on PWs.-4 and 5 also shows that they were
present at the place of occurrence.
11. Before we proceed to independently examine the
evidence, it would be apposite to refer to the principles of
appreciation of the evidence of an eyewitness, particularly
where the witness is a child and where the question of
identification arises. The evidence of a witness cannot be
discarded only because he or she is related to the deceased
or is otherwise interested. What is required is a careful
scrutiny of the testimony to ascertain whether it inspires
confidence. Similarly, the evidence of a child witness is not
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to be rejected only on account of his or her age. As held by
the Supreme Court in the case of Suryanarayana v. State
1
of Karnataka , the evidence of a child witness requires
close scrutiny and the possibility of tutoring has to be ruled
out but corroboration is a rule of prudence and not an
absolute requirement. Minor discrepancies in the testimony
of a child witness, particularly those not touching the
material particulars of the occurrence, cannot by
themselves furnish a ground for discarding otherwise
convincing evidence.
12. In the present case, PW-4 is an injured
eyewitness. PW-4 stated that at about midnight she was
sleeping inside the room along with her sister Sasmita and
deceased Susanta in palank (bed) while her mother Pallabi
and brother Subrat were sleeping on the floor. On hearing a
‘ chin chin’ sound she woke up and found a person inside the
room. She stated that she focused the torchlight towards
the face of the person and identified him as the appellant,
whom she already knew. She further stated that the
appellant was holding a bhujali and assaulted her, causing
1
(2001) 9 SCC 129
Page 9 of 23
injuries to her finger, neck and head. She thereafter
witnessed the appellant assaulting Susanta in the abdomen
and head and also assaulting her sister Sarmista. Her
evidence is that Susanta died at the spot and the appellant
thereafter fled from the house. PW-6, examined her and
found five incised injuries and all the injuries were caused
by a sharp-cutting weapon. Thus, the medical evidence
corroborates the version of PW-4 that she was present at the
place of occurrence and was assaulted with a sharp-cutting
weapon.
13. It was argued by Ms. Nanda that there are
omissions in her statement recorded under Section 161
Cr.P.C. with regard to the manner in which she caught hold
of the bhujali, the assault on Susanta and the fact that she
was brought to the hospital by her elder father. It is well
settled that every omission in a previous statement does not
amount to a contradiction. Only such omissions as amount
to contradiction in respect of a material part of the
prosecution case can materially affect the credibility of a
witness. Reference in this regard may be had to the case of
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2
Alauddin v. State of Assam , wherein the Supreme Court
observed as follows-
“9. When the two statements cannot stand together, they
become contradictory statements. When a witness makes
a statement in his evidence before the court which is
inconsistent with what he has stated in his statement
recorded by the police, there is a contradiction. When a
prosecution witness whose statement under Section 161(1)
or Section 164CrPC has been recorded states factual
aspects before the court which he has not stated in his
prior statement recorded under Section 161(1) or Section
164CrPC, it is said that there is an omission. There will be
an omission if the witness has omitted to state a fact in his
statement recorded by the police, which he states before
the court in his evidence. The Explanation to Section
162CrPC indicates that an omission may amount to a
contradiction when it is significant and relevant. Thus,
every omission is not a contradiction. It becomes a
contradiction provided it satisfies the test laid down in the
Explanation under Section 162. Therefore, when an
omission becomes a contradiction, the procedure provided
in the proviso to sub-section (1) of Section 162 must be
followed for contradicting witnesses in the cross-
examination.”
{Emphasis added}
The testimony given by PW-4 has remained unshaken,
mainly on the material aspects that she was present in the
room, the appellant entered the room armed with a bhujali
and assaulted her and the other members of the family and
that Pallabi and Susanta sustained fatal injuries.
14. Much has been argued before us in regard to the
discrepancy as to who focused the torchlight. PW-1 did not
2
(2024) 12 SCC 224
Page 11 of 23
state before the IO that PW-4 had focused the torchlight
rather, as argued by Ms. Nanda, he stated that the
torchlight was focused by the deceased Susanta. In his
evidence before the trial Court, however, PW-1 stated that
PW-4 had focused the torchlight. PW-5 has also attributed
the focusing of the torchlight to PW-4 and PW-4 herself
stated before the IO that she had focused the torchlight. In
our considered view, this discrepancy does not go to the root
of the prosecution case.
15. What is material is not the identity of the
particular person who physically focused the torchlight but
whether the witnesses had an opportunity to see the
assailant and whether such opportunity enabled them to
identify him. The consistent evidence emerging from the
evidence of PWs.-1, 4 and 5 is that the torchlight was
focused on the assailant and they were thereby able to see
his face and identify him as the appellant. The appellant
was not a stranger to these witnesses. PW-4 has stated that
she knew the appellant as he had married the daughter of
her uncle. PW-5 has also stated that the appellant was
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known to her and used to come to their house. Therefore,
the discrepancy as to whether the torchlight was focused by
PW-4 or by deceased Susanta is only with regard to the
manner in which the visibility was created and does not
affect the fact that the appellant was seen and recognized in
the torchlight. The discrepancy, therefore, cannot
reasonably be treated as sufficient to discredit the
identification of the appellant. Reference in this regard may
3
be had to the case of Sarwan Singh v. State of Punjab ,
wherein the Supreme Court observed that where the
accused is already known to the witnesses and the
witnesses are acquainted with him, the absence of a prior
test identification parade does not by itself render the
identification in Court unreliable. The Court emphasized
that the ultimate test is the acceptability and credibility of
the evidence of the witness. In the present case, the
appellant was known to PWs.-4 and 5 and was not a
stranger to the family. The identification, therefore, is not a
case of the witnesses identifying an unknown person for the
first time in Court.
3
(2003) 1 SCC 240
Page 13 of 23
16. Ms. Nanda, relying on the statement of PW-5 in
response to the suggestions put to her in cross-examination,
has also sought to discredit the identification of the
appellant on the ground that the assailant was wearing
goggles and the portion of his face below the nose was
covered with a towel. We have carefully considered this
submission. PW-4, however, stated that the towel was
around the appellant’s head and specifically stated that his
face was not covered and he was not wearing goggles. PW-9,
the I.O. also stated that his investigation did not reveal that
the accused was wearing goggles or had covered his face
with a towel. In such circumstances, the statement of PW-5
deposed in response to the defence suggestions cannot be
considered in isolation to discard her entire testimony. PW-5
was about six years old at the time of the occurrence and
about eight years old when she deposed before the trial
Court. Her statement that due to the lapse of time, she did
not remember the incident in all its details cannot, by itself,
render her evidence unreliable. Most importantly, when
questioned by the trial Court as to how she could depose if
she did not remember the incident, she stated that she
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knew that the accused had assaulted them with a bhujali.
Thus, although she may not have been able to recollect
every detail of the occurrence, she could recall the material
fact concerning the identity of the assailant and the assault.
The evidence of PW-5, therefore, has to be read as a whole
and not by isolating an answer given in cross-examination.
It is the duty of the Court to discern the material and
reliable aspects of her testimony rather than discard it only
because she was unable to recollect every detail of the
occurrence. Her evidence, when considered along with the
evidence of PW-4 as well as the evidence of P.Ws.1 and 9,
does not create any reasonable doubt regarding the
identification of the appellant.
17. Ms. Nanda has also argued that PW-1 having
concealed himself underneath the palank could not have
seen the assailant or witnessed the occurrence. This
submission cannot be accepted for the reason that PW-1
sound, he woke up and
stated that on hearing ‘ chin chin’
saw the appellant assaulting his mother, who was sleeping
on the floor near him. Out of fear, he concealed himself
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underneath the palank . He further stated that when his
sister Susmita focused the torchlight on the face of the
assailant, he identified him as the appellant and continued
to witness the assault from underneath the palank . Thus,
PW-1 had an opportunity to see the assailant before taking
shelter and subsequently identified him in the torchlight.
The only fact that he concealed himself underneath the
palank out of fear does not render his testimony regarding
identification unreliable. For our own satisfaction, we have
also perused the photographs of the place of occurrence
available in the case diary and find nothing therein to
suggest that a person concealed underneath the palank
could not have seen the assailant in the manner stated by
PW-1. The photographs lend support to his ocular account.
His evidence, therefore, cannot be discarded only because
he took shelter underneath the palank during the
occurrence.
18. Coming to the evidence of PW-5, we find that the
trial Court, after being satisfied that she was capable of
giving rational answers, accepted her evidence. In her
Page 16 of 23
evidence, she stated that the appellant was known to her
and attributed the assault upon her mother, brother and
sister to him. She stated that the appellant was identified in
the torchlight and further described the manner in which
the assault was committed. Though in cross-examination
she stated that due to lapse of time, she did not remember
the incident, such answers cannot be considered in
isolation. She was questioned by the Court as to whether
she was deposing what she had herself seen or on the
instruction of her father and sister, she stated that she was
deposing on the basis of what she had seen. There is no
material on record to establish that her evidence was the
result of tutoring. Her presence at the place of occurrence is
also supported by the injuries found on her by PW-6, one of
which was grievous in nature. PW-6 further opined that all
the injuries sustained by her could have been caused by a
weapon like a bhujali. Her evidence, therefore, cannot be
discarded merely because she was a child witness.
19. We shall now consider the evidence of PW-1. He
stated that on hearing a sound he woke up and saw a
Page 17 of 23
person standing inside the room and after torchlight was
focused on the person, he identified him as the appellant.
He also stated that the appellant was armed with a bhujali
and assaulted his mother, brother and sisters. He himself
concealed under the palank during the occurrence. His
evidence is consistent on the material aspect that he had an
opportunity to see the assailant in the torchlight and
recognized him as the appellant, who was already known to
him. The defence has sought to create an infirmity from the
fact that PW-1 did not state before the IO that PW-4 had
focused the torchlight and had attributed the focusing of the
torchlight to deceased Susanta. In our considered view, this
discrepancy is not of such a nature as to render his entire
testimony unreliable. The essential fact stated by him
remains that the assailant was visible in the torchlight and
that he was able to identify him.
20. Thus, from overall appreciation of evidence of
PWs.-1, 4 and 5, we find that they have given a consistent
account of the incident. All three witnesses stated that the
Page 18 of 23
assailant was seen in the torchlight and was identified as
the appellant.
21. Ms. Nanda also tried discredit the above
witnesses for the reason they are interested witnesses. In
our considered view, there is no force in this submission as
the witnesses themselves were injured and the deceased
persons were their mother and brother. There was no
reason for them to falsely implicate the appellant while
shielding the real offender, if at all it was somebody else.
22. Also, PW-3’s evidence lends support to the
prosecution case. He stated that as he reached the house on
hearing hullah, he saw a person fleeing from the house and,
on entering found Pallabi and Susanta dead and P.Ws.4 and
5 injured, whom he thereafter took to the hospital. Though
he is not an eyewitness to the assault, his evidence provides
corroboration. Medical evidence of PW-6 also corroborates
the ocular version as the injuries found on the deceased and
injured witnesses were incised injuries capable of being
caused by a bhujali. As regards the absence of an
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independent eyewitness, the occurrence having taken place
inside the house at midnight, such absence is natural.
23. The other arguments raised by Ms. Nanda i.e. the
plea of false implication on account of the appellant’s
previous involvement or suspicion in a motorcycle theft
case, are not supported by any material. There is no
plausible reason why PWs.-4 and 5, who themselves
sustained injuries, would falsely implicate the appellant in
the murder of their own family members. The absence of a
proved motive also does not affect the prosecution case,
which rests on direct ocular evidence supported by medical
evidence. As regards the plea of alibi that the appellant was
at Jamsola, no evidence has been adduced in support
thereof, whereas P.Ws.1, 4 and 5 have directly placed him at
the place of occurrence. The defence, therefore, has failed to
create any reasonable doubt on these grounds.
24. There is, however, one aspect which has not been
argued before us but requires consideration. The trial Court,
while convicting the appellant, has also recorded a
conviction under Section 450 IPC, though no specific charge
Page 20 of 23
under the provision appears to have been framed against
him. The question, therefore, is whether such conviction can
be sustained.
25. Section 464 Cr.P.C. makes it clear that a
conviction is not rendered invalid only on account of
omission to frame a charge or an error, omission or
irregularity in the charge, unless it has in fact occasioned a
failure of justice. In the case of Radha Mohan Singh v.
4
State of U.P. , the Supreme Court held that, in view of
Section 464 Cr.P.C., an appellate or revisional Court can
convict an accused for an offence for which no charge was
framed, provided no failure of justice has been occasioned.
The relevant consideration is, whether the accused was
aware of the basic ingredients of the offence, whether the
material facts sought to be established against him were
clearly put to him and whether he had a fair opportunity to
defend himself.
26. In the present case, the prosecution case from the
very inception was that the appellant entered the house of
4
(2006) 2 SCC 450
Page 21 of 23
the informant at about midnight, armed with a bhujali, and
committed the assault upon the inmates of the house. The
evidence led by the prosecution was also directed towards
establishing his unlawful entry into the house with the
intention of committing the offences with which he was
charged. The material facts constituting the offence of
house-trespass were thus part of the prosecution case and
were within the knowledge of the appellant. Further, the
circumstances relating to his entry into the house and the
commission of the assault were put to him in his
examination under Section 313 Cr.P.C., thereby affording
him an opportunity to explain the same. The defence was
one of complete denial and false implication and no
prejudice was demonstrated to have been caused by the
absence of a separate charge under Section 450 IPC.
27. Thus, from a conspectus of the analysis of the
evidence, reasoning of the trial Court and its findings, the
contentions raised and the discussions made hereinbefore,
we are left with no doubt that the accused was rightly
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convicted by the trial Court. We, therefore, find no reason to
interfere with the impugned order.
28. In the result, the appeal fails and is therefore,
dismissed. The accused-appellant being on bail, his bail
bonds be cancelled and he be taken to custody forthwith
to serve the remaining part of the sentence.
..........................................
( Sashikanta Mishra, J)
Manash Ranjan Pathak, J. I agree.
…........................................
(Manash Ranjan Pathak, J)
Orissa High Court, Cuttack
st
The 1 September, 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: 01-Sep-2026 17:50:41
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