Orissa High Court
Rabinarayan Mohapatra vs State Of Orissa on 31 July, 2025
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,
whereby the learned trial Court has convicted the accused-appellant for
the offence punishable under Section 326 of IPC and sentenced him toundergo 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. 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
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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:-
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“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.
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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.
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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
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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) cut injury 4 x 3 x 1cm right perital region of head
(ii) cut injury 3 x 2 x 2 on the forehead
(iii) cut injury 2 x 1 x 1 cm left perital region
(iv) abrasion 3×2 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
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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‟,
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the weapon of offence and fled away which was seized by the I.O. of thecase.
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
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Rajasthan, reported in MANU/SC/0048/2025. The Hon‟ble SupremeCourt 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).
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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
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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
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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