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THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 58 of 1994 (In the matter of an application under Section 378 of the Criminal Procedure Code, 1973) Basudev Mohapatra ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Bijaya Kumar Ragada, Amicus Curiae For the Respondent : Mr. Sarathi Jyoti Mohanty, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 25.11.2025 :: Date of Judgment: 09.12.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the sole appellant-Basudev Mohapatra under Sections 378 of the Cr.P.C., is directed against the judgment and order dated 04.03.1992 passed by the learned Additional Sessions Judge, Jajpur in S.T. Case No.98 of 1990 arising out of G.R. Case No.334 of 1988, whereby the present appellant has been convicted for the offence under Section 307 of I.P.C. and on that count, he was sentenced to undergo R.I. for two years and to pay a fine of Rs.2,000/-, in default, to undergo R.I. for three months. 2. The present appeal has been pending since 1994. When the matter was called for hearing, consistently none appeared for the
Legal Reasoning
appellant. Therefore, this Court requested Mr. Bijaya Kumar Ragada, learned counsel, who was present in Court to assist the Court as Amicus Curiae. He has readily accepted the same and after obtaining entire record, assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Mr. Ragada. 3. Heard Mr. Bijaya Kumar Ragada, learned Amicus Curiae for the appellant and Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel for the State. 4. The prosecution case, stated briefly, is that on 16.01.1988, in the absence of the informant, Bansidhara Panda, an Amin measured Page 2 of 17 the frontage of his land with reference to the adjoining road. At about 3:00 p.m., after discussing the said measurement with a co-villager, Charei Swain, Bansidhara Panda was returning home. At that time, the accused persons, who had assembled in front of their house, confronted him and questioned him regarding the removal of a fence. During this verbal exchange, both parties proceeded towards the frontage of the informant’s land. Hearing the exchange, Lochani, wife of Bansidhara, arrived at the spot and abused the accused persons. At this juncture, co-accused Rampa allegedly pushed her, thereby voluntarily causing hurt. On hearing the commotion, Bijaya Kumar Panda, son of Bansidhara Panda (P.W.1), who was then on bed rest, came to the place of occurrence and protested the conduct of the accused persons. It is alleged that, upon the instigation of accused No.1 (the appellant), accused Nos.2 and 4 caught hold of Bijaya Kumar Panda. When Bansidhara Panda intervened, accused No.3 (Maheswar Mohapatra) is said to have dragged him towards the cowshed of one Krushna Senapati. Thereafter, accused No.1 (the present appellant) allegedly inflicted a knife blow on the abdomen of Bijaya Kumar Panda with the knowledge that such an act was likely Page 3 of 17 to cause his death. Bijaya Kumar Panda fell to the ground as a result of the assault. Hearing the alarm raised, villagers arrived at the spot, whereupon the accused persons fled away, with accused No.1 absconding with the knife. Bijaya Kumar Panda was taken to Baitarani Road Hospital for treatment. On the following day, upon the arrival of the police, Bansidhara Panda submitted a written report before the O.I.C., Korai Police Station, whereupon investigation commenced on registration of F.I.R.. During investigation, medical opinions regarding the injuries sustained by Bijaya Kumar Panda, Lochani Panda, and Basudev Mohapatra were obtained. The bed-head ticket of Bijaya Kumar Panda was seized. The police also seized a lungi from the police station under Ext.6 and the wearing apparel of Bijaya Kumar Panda under Ext.8. A dying declaration of Bijaya Kumar Panda was recorded. The seized materials were sent for chemical examination. Upon completion of the investigation, charge-sheet was submitted against the accused persons. On the stance of complete denial and claim of trial, the appellant was put to trial on the charges under Sections 307/34, 341/34 and 323 of I.P.C. Page 4 of 17 5. The prosecution in order to bring home charge examined nine witnesses and the defence has examined three witnesses to support their case. Out of whom, P.W.1 is the informant, P.W.2 is the injured and son of the informant, P.W.3 is the wife of the informant and also an injured. P.W.4 was the post occurrence witness. P.W.5 was the medical officer, who admitted P.W.2 to the Sub-Divisional Hospital, Jajpur. P.W.6 was the BDO, who recorded the dying declaration of P.W.2. P.W.7 was the I.O., P.W.8 was the doctor, who examined the injuries on the person of P.W.3 and P.W.9 was a Surgical Specialist, who attended the injuries of P.W.2. 6. In the present case, four accused persons stood charged for the alleged commission of offences under Sections 307/341/323/34 of I.P.C. However, upon appreciating and analyzing the evidence of all the witnesses, the learned trial Court acquitted all the accused persons of the said charges singling out the present appellant and convicted him for the offence under Section 307 of the I.P.C. The appreciation of evidence of the learned trial Court is largely reflecting in paragraphs-13 and 14 of the judgment, which reads as under:- Page 5 of 17 it is consistent with “13. The FIR reveals that p.w.2 was dealt with the knife blow on the belly. p.w.1, 2 and 3 have attributed that the dealing of knife blow was on the chest. P.W.5 and 9 have located the lone incises stab injury on the person of p.w.2 to be 3 below the left nipple on the 6th rib. The existence of lone stab injury on the person of p.w.2 deposed by p.w.5 and 9 has made no difference to the location of injury between the belly and chest. On the other hand the injury as found by p.w.5 and 9 has tallied with the testimony of p.w.1, 2 and 3 on broad the probabilities prosecution case. As per the ratio of the citation in 1975 C.L.T. 1379 reported (binapalibekana vrs-State). 14. Section 34 I.P.C. is an inference of law on given facts. According to the FIR accused sarat and Rampa caught hold of p.w.2, accused Basudev Mohapatra dealt the lone knife blow. This court has come to a finding that actually p.w.1 has not an eye witness to the giving of the knife blow. According to p.w.3 immediately after receipt of the knife blow p.w.2 pressed his injury in his hand. According to p.w.2 after the the knife blow he remained infliction of senseless. Judged on the evidence of p.w.2 and 3 that p.w.2 was further under the grip has not been made out. According to p.w.2 he saw the knife only at the time of its infliction. The FIR version is that accused Basudev brought out a knife from his pocket is suggestive of the sudden knife. The of circumstance that p.w.2 was not under further grip is sufficient to hold that accused Rampa and accused sarat had not cherished the common intention to murder p.w.2 or had the revelation the Page 6 of 17 knowledge at p.w.2 will be inflicted with the knife blow. Thus this court is not the view that the prosecution has not been able to substantiate the sharing of common intention by the accused Sarat and Rampa with accused Basudev in the dealing of the knife blow. Resting with the discussion made from para 9 onwards, the accused no.1 Basudev Mohapatra dealt the the knife blow on p.w.2 with knowledge that the knife blow as p.w.2 may cause the homicidal death although p.w.2 escaped the death with injuries to his persons.” 7. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Jajpur, the present appeal has been preferred by the appellant. 8. At the instance of P.W.1, the F.I.R. (Ext.1) was registered. P.W.1 is the father of the injured/victim-Bijaya Kumar Panda, who was examined as P.W.2, he is also one of the eye witnesses. P.W.1 in his testimony has deposed that all the accused persons demanded to remove the fence of his homestead for converting it to the village road. In course of exchange of words, he came to frontage of his house. The accused persons gave a push to him as well as his wife- Lochani Panda (P.W.3). The accused-Rampa gave push to his wife for which, she fell down and sustained bleeding injuries in the right Page 7 of 17 eyebrow. His son (P.W.2) came near the place after hearing the cry of his mother. Accused Sarat Mohapatra dragged Bijaya (P.W.2) to their fold. Accused-Basudev Mohapatra (the present appellant) dealt a knife blow to the left side chest of P.W.2 and left the place with the blood stained knife. Bijaya pressed his hand on the inflicted injury and was taken to Baitarani Road hospital. P.W.2, who is the injured and son of the informant (P.W.2) has testified that on the date of incident at about 4 P.M., he came out from his house hearing hulla from his mother and found that his father has been taken away by the accused persons by forcibly tying him in a peg on the verandah of one Krushna Senapati. Padmanav Mohapatra caught hold of his right hand and Sarat Mohapatra caught hold at his left hand and the present appellant dealt a knife blow on his left chest, for which he sustained bleeding injury and remained senseless in front of his house. He regained his senses in the hospital. Subsequently, he was referred to Jajpur Sub-Divisional Hospital. He gave the statement before the Magistrate, which has been exhibited as Ext.2 and Ext.2/1 was his signature. Page 8 of 17 Similarly, P.W.3 is the mother of the injured (P.W.2) and the wife of P.W.1. She in her evidence has stated that she saw her husband was restrained by Basudev, Rampa and Sarata coming to the frontage of her house and they started quarreling. She protested, accused Rampa gave her a push, as a result of which, she fell down and sustained injuries on her left eyebrow. At that time, her husband (P.W.1) was taken away to the house of Krushna Senapati. Her husband was tied to a peg. She raised hulla. Many persons gathered including her son (P.W.2). Accused Sarat and Rampa caught hold of Bijaya and the present appellant dealt a knife blow to the chest of Bijaya. Bijaya pressed his injury in his hand and was taken to hospital. He was treated in the hospital for the injury. P.W.2 was initially treated by Dr. Manorama Dei (P.W.5). She in her deposition has stated that on 16.11.1988 at about 9.30 P.M., she examined P.W.2 and found the following injuries:- “(1) one stab injury (incised) which was bleeding 6th rib and pleura cut along the line of injury with surgical emphysema. The injury was situated 3” below left nipple the size of injury was 1/2” x ¼” x ½” depth.” Page 9 of 17 The doctor (P.W.5) further deposed that the injury was grievous in nature. X-Ray shows the fracture of 6th rib of the injury and the age of the injury was 4 to 12 hours at the time of examination. She has exhibited her report as Ext.3 and 3/1 is her signature. She further opined that the injury is possible by a knife and in the ordinary course, the injury is possible to cause death. The second doctor who has operated P.W.2 was P.W.9, Dr. Parbati Ballav Patnaik. He in his evidence has testified the following injuries:- “On examination I found a stab injury on the left side of chest wall 3” below the left nipple, ½” x ¼”, I operated the case at 10.00 PM and found the 6th rib left side was cut along the line of external injury with an opening of the pleura (covering of the lungs) and the pericardium (covering of the heart) was also torn exposing the surface of the heart. I repaired the injury. The patient was cured and discharged on 25.11.88 by me. The instant injury in ordinary course of nature can cause death. The injury was on the vital part of the body. This is the bed head ticket in two sheets of Bijaya Panda s/o-Bansidhara Panda of Amrutia P.S. Korai marked Ext.15…” Page 10 of 17 Similarly, the injured (P.W.3) was examined by Dr. Baisnaba Charan Sahu (P.W.8). P.W.8 in his testimony has deposed that P.W.3 has sustained following injuries:- “(i) abrasion 1cm. x 1/4th cm. x 5 M.M. on the left eyebrow at its lateral end, Simple in nature and might have been caused due to frictional force on hard and rough substance, (ii) bruise 4 Cm. x 2 Cm. on the forehead lateral to mid line, simple in nature and might have been caused by falling on a hard object, (iii) abrasion 1 Cm. x ½ Cm. x 5 mm. on the extensor aspect of left elbow joint, simple in nature and might have been caused by frictional force on hard surface.” 9. All these witnesses have sustained vivid cross-examination in the hands of the defence but the defence could not create dent on their version. Therefore, the learned trial Court has rightly appreciated the evidence of all the witnesses and relied upon fifteen exhibits. The gravity of the injury sustained by P.W.2 and his health condition was much deteriorated with the passage of time. The same could be inferred from the fact that the police recorded his statement (Ext.8) designating the same as “dying declaration”. The condition of P.W.2 was very critical. The doctors have expressed the said opinion. Therefore, the I.O. thought it appropriate to record his statement, Page 11 of 17 which was designated as “dying declaration”. The defence took a stance of false implication and examined three witnesses. The learned trial Court dealt with the deposition of the defence witnesses and arrived at the following findings:- “17. The defence has examined three witnesses. D.W.1 has testified that the occurrence is of evening hours and that p.w.2 Bijaya Panda fell from his pinda and sustained injuries to his person due to fall. D.W.2 has attributed the time of incidence to be 7.00 m. to 8.00 pm and that he witnessed that P.W.2 was being raised from the surface and that he directed the persons there to shift Bijaya Panda to the hospital. The prosecution case is that on 16.11.88 at 3.30 pm. the incidence took place. There is a shifting of the time of occurrence from the side of the defence. This shifting of time has not been suggested to any P.Ws. It was the month of October 4.00 p.m. is not the absence of time. In suggestion to p.ws. about the shifting to time this testimony cannot be believed. According to the ratio of the citation reported in 1975 (XLI) C.L.T. Notes 144 (Harishchandra Patra Vrs. Thakur Das). D.W.3 is the doctor who has treated accused no.1 at Korai P.H.C. and found an abrasion on his head and skin scratch over the left side of neck and has proved Ext.A. D.W.3 has given two probable versions that these simple injuries could have been possible by blunt weapon and also possible by fall p.w.7 has proved Ext.7 the injury requisition wherein there is mention that the evening Page 12 of 17 fall accused Basudev Mohapatra sustained injury on his person. This evidence of Ext. A has also remained unchallenged. This being the state of affairs, 2nd placitum of the citation reported in 89 (1973) C.L.T. 619 State Vrs. Haribandhu Mati) “When there is conflict between the statement made in the committal court and in the sessions court. It is opened to the court to carefully scrutinize the conflicting statement and decide which is the version acceptable.” This evidence has originated from the evidence of D.W.3 and is not an earlier statement but nevertheless in the facts and circumstances taking the prospective circumstances of the facts for the case intrinsically Ext.7 has achieved a corroboration to the testimony of D.W.3 in the absence of any challenge made to Ext.7. Thus in the net result the prosecution has failed to bring home the offence U/Sec. 341/34 I.P.C. against any of the accused persons. The prosecution has not been able to substantiate its case against the accused Rampa, Maheswar and Sarat Mohapatra for the offence U/Sec. 307/34 I.P.C. equally prosecution has not been able to substantiate its case against accused Rampa @ Padmanav Mohapatra for the offence U/Sec. 323 I.P.C. Accordingly they are found not guilty for the offence U/Sec. 307/34 and 341/34 I.P.C. and that accused no.2 is not found guilty for the offence U/sec. 323 I.P.C. Accused no.2 to 4 are acquitted from the mischief of Sec. 307/34 and 341 and 323 I.P.C. and are set as liberty by virtue of Sec. 235(1) Cr.P.C.. On the foregoing discussion made from para 9 onwards the prosecution has been able to bring Page 13 of 17 home the offence U/Sec/ 307 I.P.C. against accused no.1 Basu @ Basudev Mohapatra for having attempted to cause murder of p.w.2 on 16.11.88 at 3.30 to 4.00 pm. He is found guilty for is the offence U/Sec. 307 I.P.C. and convicted thereunder. Place him for hearing the question of sentence.” 10. The defence version regarding the injury sustained by the accused persons has not been believed by the learned trial Court on the reasonings as recorded in paragraph-17 of the impugned judgment. I am in complete agreement with the findings and appreciation of the evidence made by the learned trial Court in so far as appreciation of defence evidences are concerned. In view of the unequivocal evidence of the prosecution and sustenance of the cross- examination by all the prosecution witnesses without any variation in their consistency and in view of the documentary evidence placed on record, I completely agree with the conclusion drawn by the learned trial Court. Therefore, the impugned judgment and order dated 04.03.1992 passed by the learned Additional Sessions Judge, Jajpur in S.T. Case No.98 of 1990 in so far as the conviction recorded against the appellant are concerned, is affirmed. Page 14 of 17 11. At this stage, Mr. Ragada, learned Amicus Curiae for the appellant submitted that the incident relates back to the year 1994 and three decades have already passed in between. He also submitted that at the time of incident, the appellant was 23 years of age, i.e., in the year 1988. At present, he is about 60 years of age. Mr. Ragada, further submitted that during trial, the appellant was arrested on 18.11.1988 and released on bail on 12.12.1988. Therefore, during the trial, he has already undergone incarceration of twenty-five days. The learned trial Court passed the impugned judgment on 04.03.1992 convicting the appellant. He was taken into custody and was released on bail on 03.04.1992 by this Court. Hence, after conviction, he has undergone about thirty days incarceration. Therefore, as and under trial and during the pendency of the appeal, the appellant has undergone total custody of about fifty-five days. Mr. Ragada, submitted that the sentence may be modified to that of the sentence the appellant has already undergone. 12. Regard being had to the fact that the appeal is pending since 1994, the incident relates back to the year 1988, sending the appellant back to the custody to serve out the remaining period of sentence Page 15 of 17 would be harsh because the appellant is presently in his sixties. He has no criminal antecedents. Over the years, he has led a dignified life and integrated well into society, and is presently leading a settled family life. Incarcerating him after such a long delay, it is argued, would serve little penological purpose and may in fact be counter- productive, casting a needless stigma not only upon him but also upon his family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, I am of the view that the sentence awarded by the learned trial Court is liable to be modified. 13. The prayer made by Mr. Ragada, learned Amicus Curiae for the appellant deserves merit. Accordingly, while confirming the conviction recorded by the learned trial Court for the offence under Section 307 of I.P.C., I modify the sentence of two years to that of R.I. for three months. However, the fine amount as imposed by the learned trial Court, i.e., Rs.3,000/- is enhanced to Rs.30,000/- (rupees thirty thousand), in default to undergo further R.I. for one month. The fine amount to be deposited by the appellant within one month shall be disbursed to the injured (P.W.2) or his near relatives in accordance Page 16 of 17 with the provision of Section 357 Cr.P.C. The sentence already undergone by the appellant shall be set off. 14. Accordingly, the CRA is partly allowed. 15. This Court acknowledges the effective and meaningful assistance rendered by Mr. Bijaya Kumar Ragada, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 9th December, 2025/Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 10-Dec-2025 11:28:42 Page 17 of 17