The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 470 of 2005 (In the matter of an application under Section 374(2) of Criminal Procedure Code) Rabinarayan Mohapatra ……. Appellant(s) -Versus- State of Orissa ……. Respondent(s) For the Appellant : M/s. S.P. Mishra & Associates, Advocates For the Respondent : Ms. Siva Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 17.07.2025 : Date of Judgment: 31.07.2025 S.S. Mishra, J. The present appeal is directed against the judgment of conviction and order of sentence dated 29.09.2005 passed by the learned Additional Sessions Judge, Boudh in Sessions Trial No.31 of 2004,
Legal Reasoning
whereby the learned trial Court has convicted the accused-appellant for the offence punishable under Section 326 of IPC and sentenced him to undergo R.I. for two years and to pay a fine of Rs.3000/-, in default of payment of fine to undergo R.I. for a further period of six months. 2.
Legal Reasoning
Heard learned counsel for the appellant and Ms. Siva Mohanty, learned counsel for the State. 3. The prosecution case, in nutshell, is that on 26.04.2003 in the night at about 9.00 P.M. while the informant-injured Prasanna Kumar Buxi was returning from his rice-mill at village Thapapali to his house at Badikatta, on the way the accused illegally demanded “Dada Bati” from him. As the informant refused to pay the same, the accused assaulted him with the help of a „Pitha Patia (iron spatula), as a result of which he sustained injury on his head and left arm and fell down on the ground and became senseless. It is also alleged that when one Umesh Tripathy and his son Manoj Tripathy raised protest, the accused also assaulted them causing injuries. 4. On the basis of the aforementioned allegations, Baunsuni P.S. Case No. 19 of 2003 under Sections 341/294/386/307 of IPC was Page 2 of 13 registered corresponding to G.R. Case No. 90 of 2003 and investigation of the case was conducted and charge sheet was submitted against the appellant for the aforesaid allegations and accordingly charges were framed and the appellant was put to trial. 5. The prosecution examined as many as nine witnesses to substantiate its case. P.W.1 was the informant, P.W.2 and P.W.3, were the injured, P.W.4 and P.W.6 were the witnesses to the occurrence, P.W.5 was the witness to the seizure, P.W.7 was the doctor, P.W.8 was the Surgery Specialist, who rendered expert opinion on the injury and P.W.9 was the I.O. of the present case. 6. On the other hand, the accused examined the defence witness, such as, D.W.1 and D.W.2 to rebut the alleged case of the prosecution. 7. The learned trial court although acquitted the appellant of the charges under Sections 341/294/386/307 IPC, but found him guilty of offence under Section 326 IPC, inter alia, arriving at the following conclusion:- Page 3 of 13 “15. From the above analysis it is abundantly clear that the record lacks any specific evidence as to the offence of wrongful restraint under Sec.341 IPC. Also evidence regarding offence punishable U/s 294 IPC is very week and mild. Of course, it is true that P.W.2 and 3 both of them allege in court that the accused hurled filthy abuse towards each of them, but such of their statement fails to find inter se corroboration, nor they have disclosed the specific abuse. So it is difficult to determine whether the alleged abuse was obscene, obviously allegation U/s 294 IPC utterly false for want of appropriate evidence. Further there is no cogent and satisfactory evidence touching the ingredients of offence punishable U/s 386 IPC. Although P.W.2 states that the accused demanded a sum of Rs.100/- as Dada Bati from him and he reiterated that the accused raised such demand in presence of P.W.3 and Umesh Tripathy, such testimony fails to find any corroboration. Umesh Tripathy has not been examined and P.W.3 remains completely silent as to the alleged demand of Dada Bati. The inevitable conclusion is that the offence U/s 386 IPC is not substantiated. 16. However the prosecution has amply proved that on 24.04.2003 at about 9.00 p.m. at Thapapalli this accused brutally assaulted P.W.2 with the help of an iron spatula (M.O.1) causing multiple injuries on his person including fracture of his left hand which was grievous in nature when P.W. intervened in the matter the accused also attacked and assaulted him with the same spatula causing injuries. Now it is to be examined if actually offence U/s 307 is attracted. xxx xxx xxx 18. In the case in hand no cogent evidence has been led to the effect that the accused had intention to cause death of any of the victims nor is there any definite material constituting immediate motive for it. Rather it appears from the oral testimony of P.W.2 that the accused gave continuous five blows one after another by a spatula and then stopped. Page 4 of 13 About 2 to 4 minutes after such assault P.W.2 lost his senses. Thereafter accused attacked P.W.3 with the same spatula. From this a reasonable inference can be drawn that the accused had no intention to cause murder of the victim. Had he any such intention he would not have stopped or left. P.W.2 in the course of assault. Also the accused after dealing some specific blows on P.W.3 left M.O.1 at the spot and ran away. From the available facts and circumstances of the case, the case very well falls under Section 326 of the IPC and Section 307 IPC is not attracted. 19. In view of my above discussed analysis, I came to an irresinoble conclusion that the charge U/s 341/294/386 of the IPC as levelled against the accused falls for want of evidence and hence, I acquit the accused from the said charge. But at the same time it is held that the prosecution has amply proved a case U/s 326 of the IPC against the accused beyond all hades of doubt and as such I convict him thereunder.” 8. The appellant is seriously aggrieved by the aforementioned findings recorded relating to the offence under Section 326 IPC, hence filed the present appeal assailing the same. 9. I have gone through the evidence of all the witnesses. The informant P.W.1 in his evidence has stated that he was returning from the rice-mill situated at village Thapapali, on the way just in front of the house of one Umesh Tripathy, he found that his younger brother Prasanna Kumar Buxi (P.W.2) was lying unconscious in a pool of blood. Page 5 of 13 Immediately he brought water from the house of Umesh Tripathy and gave it to his injured brother, as a result of which he regained his sense and narrated the incident. He has also stated that the accused demanded „Dada Bati‟ from P.W.2 and on refusal, the accused brutally assaulted his brother by means of a „Pitha Patia (Iron Spatula). He sustained extensive cross examination, but nothing has been elucidated from him. P.W.2, the injured in his statement has stated that near the house of Umesh Tripathy, the accused appellant demanded Rs.100/- as „Dada Bati‟ and on his refusal to give the same, he was abused in filthy language stating “ANYA GAONRU AASI AMA GAONARU PAISA NEIJAUCHHU” and when he raised protest, the accused brutally assaulted him by means of „Bhoji Randha Pitha Patia‟. He sustained injury on his forehead and left arm. In the cross examination, the said injured witness has stated that when the demand of „Dada Bati‟ was made by the appellant accused-Rabinarayan Mohapatra from him, Umesh Tripathy and Manoj Tripathy were present. The said Manoj Tripathy was examined as P.W.3, who stated that when he came to the spot, he found that the appellant accused was assaulting P.W.2 with the Page 6 of 13 help of „Bhoji Randha Pitha Patia‟ and immediately he intervened in the matter due to which he sustained injury. The evidence of P.W.2 and P.W.3 makes it abundantly clear that in the incident both of them have sustained injury. The doctor (P.W.7) has examined both the P.Ws 2 and 3 and has found the following injuries:- “On 26th April 2003 I was medical officer PHC Baunsuni. On that day on police requisition I examined one Prasan Buxi S/o Jogindra Buxi of village Badikata and found the following injuries on his person: (i) (ii) cut injury 4 x 3 x 1cm right perital region of head cut injury 3 x 2 x 2 on the forehead (iii) cut injury 2 x 1 x 1 cm left perital region (iv) abrasion 3x2 left arm (v) swelling left hand 2. All the above injuries were simple in nature except injury No.v in respect of which the opinion was kept reserved. All those injuries might have been caused by hard and sharp weapon. Ext.4 is my report and Ext.4/1 is my signature. 3. On the very same day on police requisition I examined one Manoj Kr. Tripathy S/o Umesh Prasad Tripathy of village Thapapali and found following injuries on his person Page 7 of 13 i) Abrasion 12 x 2 cm over right knee ii) Flare 3 x 2 cm on right hands iii) Cut injury 2 x 2 cm right toe All those injuries are simple in nature. Injuries No.1 and ii might have been caused by hard and blunt weapons while injury No.iii might have been caused by hard and sharp weapon. Ext.5 is my report and Ext.5/1 is my signature” 10. On the specific query put to the said doctor (P.W.7) he has stated that the „Spatula‟ was shown to him including the wooden handle, which was forty-two inch. He has opined that the injury sustained by both the P.Ws.2 and 3 could be possible by the said weapon of offence. The version of P.Ws.1, 2 and 3 not only corroborated with the testimony of P.W.7, the doctor, but also stood corroborated with the evidence of P.W.6, who was the eye witness. P.W.6 in his testimony has stated that in front of the house of Umesh Tripathy he found the accused was assaulting Prasanna Buxi (P.W.2) with the help of „Pitha Patia‟ and when Manoj Tripathy (P.W.3) intervened in the matter, the accused also assaulted him with the same weapon. The accused left the „Pitha Patia‟, Page 8 of 13 the weapon of offence and fled away which was seized by the I.O. of the case. 11. The overwhelming evidence of the prosecution led to finding recorded by the learned trial court, as mentioned above. I find no reason to doubt the findings recorded by the trial court and accordingly the conviction awarded by the trial court against the appellant for the offence under Section 326 IPC stands confirmed. At this stage, the learned counsel for the appellant submitted that initially during the trial the appellant was arrested on 27.04.2003 and was enlarged on bail on 09.05.2003. Therefore, he had undergone custody for 13 days during the trial. After the conviction, he was taken into custody on 29.09.2005 and this Court admitted him to bail on 14.02.2006. Therefore, after conviction, the appellant has undergone about 138 days and in toto the appellant has already undergone five months one day custody. In the light of the above, he submits that the appellant may be granted the benefit of Probation of Offenders Act. He has relied upon the judgment of the Hon‟ble Supreme Court in the case of Ramesh vs. State of Page 9 of 13 Rajasthan, reported in MANU/SC/0048/2025. The Hon‟ble Supreme Court in the facts and the circumstances of the said case held as under:- “17. The present appellant is about 70 years old. His conviction under the more serious offence under Section 307 Indian Penal Code has been already set aside by the High Court and he has been convicted only under Sections 326, 325, 452 and 323 Indian Penal Code and the maximum period of punishment awarded by the High Court is six months imprisonment with a fine of Rs.5000/- and has already undergone more than 4 months of imprisonment as of now. 18. Under the circumstances, we are inclined to invoke the jurisdiction under Article 142 of the Constitution of India and grant the benefit of the Probation Act to the present Appellant also, which had been granted to the other Accused belonging to the other conflicting group in the cross case, considering the fact that a settlement was reached between the parties and neither any criminal antecedents nor any adverse material against the conduct of the Appellant, have been brought to the notice of this Court.” Similarly, the learned counsel for the appellant has also relied upon the judgment of the Allahabad High Court in the case of Anil Kumar Singh @ Pappu vs. The State of U.P. (Neutral Citation No.- 2023:AHC-LKO:32343). Page 10 of 13 12. Learned counsel for the appellant submitted that the appellant was 35 years at the time of incident, i.e., in the year 2003. Hence, at present he is 57 years of age and he has clean antecedents. Therefore, the appellant is entitled to grant of Probation of Offenders Act. 13. Taking into consideration the fact that the appellant was only thirty-five years at the time of incident in the year 2003 and the fact that he has a clean antecedent, I am of the considered view that the submission made by learned counsel for the appellant deserves merit. The appellant was convicted vide judgment and order dated 29.09.2005 and the appeal is pending since 2005. Much has changed in the life of the appellant in between and he has already settled in his life. The appellant has undergone the audile of prolonged trial and pendency of appeal for about two decades. 14. In the prevailing scenario, regard being had to the age of the appellant and his clean antecedents and the fact that the incident relates back to the year 2003, I am of the considered view that the appellant is entitled to the benefit of the Probation of Offenders Act read with Page 11 of 13 Section 360 of Cr.P.C. The case of the appellant is also covered by the ratio of the judgment Dhani @ Dhaneswar Sahu vs. State of Orissa1 and the judgment cited at the bar. 15. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing the appellant to suffer imprisonment, this Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of one year on his executing bond of Rs.5,000/- (Rupees Five Thousand) within one month with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellant shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year. However, the sentence regarding payment of fine is enhanced to Rs.10,000/- (rupees ten thousand), which shall be disbursed to the injured in accordance with Section 357 Cr.P.C, in default of payment of fine, the appellant shall 1 2007 (Supp.II) OLR 250 Page 12 of 13 undergo S.I. for one month. The appellant is directed to appear before the learned trial court to furnish the bail bond, as mentioned above. 16. The CRLA is accordingly partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 31st July, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 01-Aug-2025 20:18:07 Page 13 of 13