Basudev Mohapatra vs State Of Orissa
2025 Latest Caselaw 10812 Ori

Orissa High Court

Basudev Mohapatra vs State Of Orissa on 9 December, 2025

        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

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

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

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.

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:-

"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 probabilities it is consistent with the prosecution case. As per the ratio of the citation reported in 1975 C.L.T. 1379 (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 infliction of the knife blow he remained 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 revelation of the knife. The 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

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 knife blow on p.w.2 with the 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

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.

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."

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..."

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,

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 evening time. In the absence of 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

accused Basudev Mohapatra sustained fall 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

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 the offence U/Sec. 307 I.P.C. and is 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.

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

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

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

Designation: Senior Stenographer

Location: High Court of Orissa