The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.186 of 2000 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Baikuntha Behera and another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Amulya Ratna Panda, Amicus Curiae For the Respondent : Smt. Siva Mohanty, Additional Standing Counsel CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 14.08.2025 :: Date of Judgment: 19.08.2025 S.S. Mishra, J. The present criminal appeal is directed against the judgment dated 26.07.2000 passed by the learned Additional Sessions Judge, Titilagarh in Sessions Case No. 48(D)/18 of 1999, whereby the appellants Buju @ Dibakar Ghivela and Baikuntha Behera were convicted under Section 323 read with Section 149 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of six months on each count, with fine of Rs. 500/- under Section 323/149 IPC, the sentences to run concurrently, while the co-accused Bisi Behera, Bikram Behera and Hemanta Behera were acquitted of the charges. 2. Heard Mr. Amulya Ratna Panda, learned Amicus Curiae, for the appellants and Smt. Siva Mohanty, learned Additional Standing Counsel for the State. 3. The prosecution case in brief is that on 26.08.1998, some villagers namely Duba Bag, Dayanidhi Bag and Dasarath Bag of village Khajuripara had gone to collect levy rice from the Sarpanch. It was alleged that though 20 Kgs. was recorded in the ration cards, only 10 Kgs. of rice was being supplied. On their way back, while discussing this irregularity under a banyan tree, accused Hemanta Behera, brother of the Page 2 of 7 Sarpanch, confronted them for criticizing his brother. A quarrel ensued, after which Hemanta left. 4. Soon thereafter, accused Bisi Behera, Baikuntha Behera along with Kamadev and Chaturbhuja Behera and others, armed with spades, axes and lathis, assaulted the said persons. As a result, Pitambar Bag, the informant, sustained injuries on his leg, hand and back; Dayanidhi Bag suffered a head injury; and Duba Bag sustained injuries on his nose and earlobe, with some teeth broken. The injured were taken to the hospital at Titilagarh, where the A.S.I. on duty recorded the statement of Pitambar Bag, which was treated as the FIR. On completion of investigation, the accused were charge-sheeted under Sections 307, 323, 325 read with Section 149 IPC. 5. The defence of the accused persons was one of complete denial and false implication due to village rivalry. It was also contended that the injured were under the influence of liquor at the relevant time and the injuries were self-inflicted. Page 3 of 7 6. The learned trial court, upon consideration of evidence, acquitted three of the accused, namely Bisi Behera, Bikram Behera, and Hemanta Behera, granting them the benefit of doubt. The trial court found that the ingredients of Section 307 IPC were not made out, as the injuries were simple and not on any vital part of the body. However, it convicted the present appellants Buju @ Dibakar Ghivela and Baikuntha Behera as they had actively participated in the assault and accordingly convicted them under Sections 323/149 and 148 IPC, while granting acquitting the other accused. The relevant portion of the aforesaid judgment is extracted herein below:- the found trunk at “11. The learned counsel for the defence at the time of argument also submitted that the medical evidence that the injuries are possible by repeated falls since they are time of medical examination would result in viewing the prosecution case in grave doubt that the accused with others have gathered and launched an attack. But in view of my previous discussion now the implication of accused Buju and Baikuntha has not been assailed in cross- examination such a stand by the defence is not tenable in the circumstances of case. Taking into consideration the charge U/s.148 I.P.C. cannot be any dispute in the background of the evidence that there was assembly of at least 10 persons not 30 to 40 Page 4 of 7 as deposed by P.W.6 with arms at the spot wherein there is evidence of participation of the aforesaid two accused and some others not booked in the case in inflicting the injuries upon the three injured. The weapon with which they were armed, lathies and rafa in the circumstances can be taken as deadly weapons to bring home the charge U/s,148 I.P.C. to have been proved, 12. In the background of my aforesaid discussion I step to a conclusion that though in the present case prosecution has not successful in bringing home any of the charges against accused Bisi Behera, Bikram Behera, and Hemanta Behera beyond reasonable doubt and failed to establish the charge U/s. 307 I.P.C. against the two other accused i.e. Buju and Baikuntha for causing the injuries upon the injured after unlawful assembly with deadly weapons they are held liable for the offence U/s.323 I.P.C. read with Sec.149 and U/s.148 I.P.C.
Decision
In the result, therefore while I acquit the accused Bisi Behera, Bikram Behera, and Hemant Behera from all the charges by according benefit of doubt under the provisions of Section 232 Cr.P.C. I convict accused Buju @ Dibakar Ghivela and Baikuntha Behera U/s.323 I.P.C. read with Sec. 149 I.P.C. and U/s.148 I.P.C.” 7. Upon perusal of the evidence, it is seen that the injured witnesses (P.Ws. 1, 2, 3, and 6) have consistently deposed against the appellants. The medical officer (P.W. 7) found the injuries to be simple in nature Page 5 of 7 and caused by blunt objects. It is thus evident that the conviction of the appellants under Sections 323/149 IPC and 148 IPC is well-founded and does not call for interference. 8. However, as regards the sentence, it is undisputed that the appellants are first-time offenders and there is no material to suggest any previous criminal antecedent. The incident occurred more than two decades ago and the appellants have already undergone about two months of custody. Sending them back to prison at this stage would serve no fruitful purpose and may instead hinder their rehabilitation. 9. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned, is turned down. It is made clear that the period of two months already undergone by the appellants in custody shall be duly taken into account, and they shall not be required to serve out the remaining part of the sentence. Instead of sentencing the appellants to suffer imprisonment, this Court directs the appellants to be released under Section 4 of the Probation of Offenders Act for a period of six months on their executing bond of Rs.5,000/- (Rupees Five Page 6 of 7 Thousand) each within one month with one surety each for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellants shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months. 10. This Court records the appreciation for the effective and meaningful assistance rendered by Mr. Amulya Ratna Panda, learned Amicus Curiae. He is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as token of appreciation. 11. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 19th August, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 21-Aug-2025 10:22:37 Page 7 of 7