Orissa High Court
Baikuntha Behera And Another vs State Of Orissa on 19 August, 2025
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:
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
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.
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:-
"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 found trunk at the 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
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.
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
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
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
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Location: High Court of Orissa
