Orissa High Court

Sarbeswar Mahanta And Others vs State Of Orissa on 18 November, 2025

          THE HIGH COURT OF ORISSA AT CUTTACK

                        CRA No. 144 of 1999

(In the matter of an application under Section 374 of Criminal
Procedure Code)

Sarbeswar Mahanta and others           .......               Appellants

                               -Versus-

State of Orissa                 .......                      Respondent

For the Appellants : Mrs. Kumudinee Panda, Amicus Curiae

For the Respondent : Ms. Suvalaxmi Devi, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 11.11.2025 :: Date of Judgment: 18.11.2025

S.S. Mishra, J. Although four appellants have filed the present

appeal jointly, but during pendency of the appeal, the appellant no.3-

Thakurdas Mohanta expired. Therefore, the present Criminal Appeal

qua the appellant no.3- Thakurdas Mohanta stood abated by the order

of this Court dated 04.09.2025 in the absence of any application

U/s.394 Cr.P.C. by the L.Rs. or next friend of the deceased appellant.

Hence, the present Criminal Appeal is confined to appellant Nos.1, 2

and 4.

2. In this appeal, the judgment and order dated 03.05.1999 passed

by the learned Additional Sessions Judge, Rairangpur, District-

Mayurbhanj in S.T. Case No.13/119 of 1998 & (S.T. Case

No.8/53/99) (arising out of G.R. Case No.214 of 1997, Bahalda P.S.

Case No.35 of 1997) is under challenge. Vide the said judgment and

order, the appellants were convicted for the offences punishable under

Sections 148/323 of the IPC and they were sentenced to undergo R.I.

for three months each.

3. When the matter was heard, repeatedly nobody has appeared

for the appellants. Therefore, Mrs. Kumudinee Panda, Advocate, who

was present in the Court, has been appointed as Amicus Curie to assist

the Court in this case.

4. Heard Mrs. Kumudinee Panda, learned Amicus Curiae

appearing for the appellants and Ms. Suvalaxmi Devi, learned

Additional Standing Counsel for the Respondent-State.

5. The criminal law was set in motion against the appellants on

registration of Bahalda P.S. Case No.35 of 1997 on 09.06.1997 for the

alleged commission of the offences punishable under Sections

147/148/447/323/149 of the IPC. The said F.I.R. was exhibited as

Ext.1/3.

6. The prosecution story in terse and brief is that P.W.3, the

informant while in his land on 09.06.1997 at about 7 a.m., the

occurrence appears to have occurred. He found the accused persons

were forcibly cultivating his land. Seeing this, he himself, Pitambar

and his brother Sumanta went to the spot and protested the action of

the accused persons. When the accused persons did not listen, he

unyoked all the ploughs of the accused persons. Thereafter, accused-

appellant No.4, Paresh Mahanta gave a cycle chain blow on his head.

He sustained bleeding injury. Accused-appellant No.3, Thakurdas

Mahanta (deceased), chased to assault on his father (P.W.3) and

brother (P.W.2). When Umesh Mahanta attempted to assault his

father and brother by means of spade, they tussled with each other by

holding the spade. Accused-appellant No.3, Thakurdas threw a bomb

towards him and others. P.W.2 caught hold of the bomb before the

same blasted and the bomb was handed over to the ward member of

the village.

7. The F.I.R. (Ext.1/3) was registered and the investigation was

carried out. After completion of investigation, charge sheet was filed

against the accused persons.

8. The defence although took the plea of complete denial, but in

their statement under Section 313 of the Cr. P.C., they stated that the

prosecution witnesses have assaulted them. By the assault, one

Umesh Mahanta died at the spot and for that, they filed a case against

the prosecution party members. On the stance of complete denial of

their involvement, they were put to trial after framing of the charge.

The O.I.C. of Bahalda Police Station registered the case against them

for the offences punishable under Sections 302/307/148/149 of the

IPC. Therefore, the accused-appellants stated to have been falsely

implicated in the present case by the informant P.W.1 so as to put

pressure on them.

9. The stance of denial and claim of trial after the charge was

framed led to proceed with the trial of the case.

10. In order to prove its case, the prosecution has examined as

many as six witnesses. Out of whom, P.W.1- Susil Kumar Mohanta

was the informant. P.W.2, Sumanta Mohanta is the brother of the

informant. P.W.3, Pitambar Mohanta is the father of the informant.

P.W.4, Bhubaneswar Mohanata has not stated anything against the

accused persons. P.W.5 was Dr. Karunakar Mohapatra, who

examined the informant on police requisition and P.W.6 was Prasanta

Kumar Bisoi, the O.I.C. of Bahalda P.S., who investigated into the

case.

11. The learned trial Court, by relying upon the evidence of

P.Ws.1, 2 and 3, those who stated to be the victim of the case and the

evidence of P.W.5, Doctor, arrived at the following findings:

"P.W.1 informant has stated that on 9-6-97 at about 7 A.M. he found the accused persons were cultivating his land forcibly. Seeing them, he himself, his father and brother went and protested them. But they did not listen their protest. When he unyoked the ploughes, all the accused persons, suddenly accused Paresh gave a cycle chain blow on his head by which he sustained bleeding injuries. Thereafter accused Thakurdas Mohanta chased his father and brother to assault. When deceased-Umesh Mohanta attempted to assault his father and brother by holding a spade, they tussled each other and then accused-Thakurdas Mohanta threw a bomb towards him. So from the evidence of P.W.1 it transpires that when he objected accused Paresh had given cycle chain blow on his head and accused Umesh had attempted to assault Pitambar and Sumanta Mohanta. In cross-examination he has stated that the accused persons have filed a criminal case against him and other which has been subjudiced in this Court. However, from the evidence of P.W.1 I am now clear that P.Ws.1, 2 and 3 and the accused persons were assaulting each other at the spot because P.W.1 has admitted that accused Sarbeswar Mohanta has filed a criminal case against him and others. P.W.2 who is the brother of informant has stated that on 9.6.97 at about morning time he found the accused person forcibly cultivated the disputed land and he and others objected the accused persons did not listen them. P.W.1 when attempted to unyoke the bullocks, accused Paresh dealt a cycle chain blow on the head of P.W.1. Thereafter deceased Umesh came by holding a spade and he pushed him and then accused Arup assaulted him by means of a lathi. P.W.3 has completely corroborated to the evidence of P.Ws.1 and 2. No doubt, P.W.3 is the father of the informant. So from the evidence of the witnesses I came to know that when the accused persons were cultivating their

lands forcibly, at that time they objected them and accused Paresh dealt a cycle chain blow on the head of P.W.1 and also deceased-Umesh came to assault by holding a spade. The learned defence counsel has not at all shaken the evidence of P.Ws.1, 2 and 3. So their evidence finds full corroboration to each other. Now it would be discussed how far the injury on P.W.1 has been corroborated by the evidence of Doctor. P.W.5, Doctor has stated that on 9.6.97 he examined Susil Kr. Mohanta and found there was a lacerated wound 2cm x ½ cm x skin deep on top of the scalp 8cm above left ear. Further he found a lacerated wound ½ cm x ½ cm on left shoulder and both the injuries were simple in nature and might have been caused by hard and blunt weapon. Ext.2 is his report. So from the evidence of P.W.5 it transpires that he got 2 lacerated wounds on the person of P.W.1. So the assault of Paresh P.W.1 has sustained injuries on his person. P.W.4 who is an independent witness has stated that nothing has been seized in his presence. P.W.6 has stated that on 9.6.97 he registered the case and sent P.W.1 for medical examination. After completion of investigation he submitted charge sheet. In cross-examination he has stated that he had not seized any explosive article in this case and there was no paddy plants on the disputed land. However, P.W.3 has claimed that the disputed land was of him and in the year of occurrence he had raised paddy on the disputed land. But in cross-examination P.W.6 has stated that there was no paddy plants in the disputed land. On the other hand, the accused persons have claimed that the disputed land is of the mother of accused Thakurdas Mohanta. Sarbeswar Mohanta is the father of Thakurdas Mohanta. So the accused persons have claimed that disputed land was of them. Hence both the parties have claimed the disputed land was of them. But they have neither filed any piece of documents nor proved the same regarding the ownership of the land in question. For the disputed land accused- Sarbeswar Mohanta has filed a criminal case against P.Ws.1, 2 and 3 and others. So both the parties were assaulting each other at the spot on 9.6.97 at about 7 A.M. Hence the prosecution has successfully proved that the accused persons being the member of an unlawful assembly holding deadly weapons assaulted P.W.1 and deceased Umesh Mohanta attempted to assault P.Ws.2 and 3 by holding a spade. So the accused persons are found guilty for the offence under Sections 148/323 I.P.C. and I found

them guilty U/S. 235(2) Cr. P.C. and convicted them thereunder."

12. Aggrieved by the aforementioned findings of the learned trial

Court, the basis of which, led to the conviction of the appellants, the

appellants have filed the present Criminal Appeal.

13. With the help of the learned counsel appearing for the

respective parties, I have extensively gone through the evidence on

record and on the basis of the same, analysed the judgment under

challenge.

14. In this case, P.Ws.1, 2 and 3 are the star witnesses of the

prosecution those who claimed to be the victim. P.W.1, the injured in

his testimony has stated that on 09.06.1997 at about 7 a.m. he saw the

accused persons cultivating his land forcibly. His father (P.W.3) and

his brother (P.W.2) protested them. However, the accused persons

went ahead with their illegal act. Then he unyoked all the ploughs of

the accused persons. Getting annoyed with the same, the accused-

appellant No.4, Paresh gave a cycle chain blow on his head by which

he sustained bleeding injury. Accused-appellant No.3, Thakurdas

Mohanta chased to assault his father and brother whereas accused

Umesh Mohanta attempted to assault his father and brother by means

of a spade and a tussle took place. When the occurrence was going

on, the accused-appellant No.4, Thakurdas threw a bomb towards

them, which was caught by his brother, P.W.2 and he took away the

bomb to be produced before the village ward member. He also stated

that he lodged the F.I.R. Ext.1/3. He further admitted in the cross-

examination that the accused persons have filed criminal case against

him and others which is pending in the Court.

15. Reading of the evidence of the said witness which is the crucial

evidence of the prosecution reveals that he has attributed overt act

only against the accused-appellant No.3, Thakurdas and accused-

appellant No.4, Paresh Mohanta. He has not stated anything against

the accused-appellant No.1, Sarbeswar Mohanta or accused-appellant

No.2, Ramesh Chandra. P.W.2 the brother of the informant, P.W.1

has narrated the incident in a similar way with certain variations. He

stated that while the accused persons were forcibly cultivating their

land, they protested the accused persons. His brother P.W.1 went and

unyoked the bullocks and in the meantime, the accused-appellant

No.4, Paresh assaulted P.W.1 and his head by a chain as a result of

which he sustained bleeding injury. When Umesh Mohanta attempted

to assault him by a spade, he pushed him. Accused-appellant No.2,

Arup assaulted him by means of one lathi. He has also stated that

accused-appellant No.3, Thakurdas threw a bomb which he caught

and gave it to the ward member of the village. In the cross-

examination, he has also admitted that there was some dispute

existing between them and the accused persons. In his evidence also,

P.W.2 has not attributed any overt act against accused-appellants

No.1 and 2, except saying that accused-appellant No.2 assaulted him

by means of a lathi.

16. Similar was the version of P.W.3, the father of P.Ws.1 and 2.

He has narrated the sequence of event unfolded on 06.09.1997 at

about 7 a.m. exactly in the same way as that of P.W.2. However, in

the cross-examination, he has given detail of their relationship with

the accused person. The defence could elucidate from this prosecution

witnesses regarding the land dispute between the accused persons and

P.W.3 and his family. In any case, this witness has not made any

specific allegation or attributed any overt act against accused-

appellants No.1 and 2.

17. Though the prosecution case is that P.Ws.1, 2 and 3 are the

victims of the case, but only P.W.1 was examined by the doctor,

P.W.5. The doctor in his testimony has stated as under:

"1. On 9.6.97 I was in my present capacity. In that day on police requisition at 5.50 P.M. I examined one Sushil Kumar Mohanta S/o Pitambar Mohanta of village Bhursa under Bahalda P.S. and found:-

i) Lacerated wound 2 c.m. X ½ c.m. X skin deep on top of the scalp. 8 c.m. above left ear.

ii) Lacerated wound half c.m. X ½ c.m. on left shoulder both the injuries were simple in nature and might have been caused by hard and blunt weapon. Age of injury at the time of my examination was within 12 hours. Ext.2 is my report and Ext.2/1 is my signature."

18. P.W.5 also opined that the injuries are simple in nature.

Reading of the evidence of P.W.6, the I.O. of the case would also

reveal that P.Ws.2 and 3 have added many things in their deposition

which they have not stated before the police. Therefore, the version of

P.Ws.2 and 3 is not inspiring confidence.

19. Be that as it may, reading of the evidence of all the witnesses in

unison would only lead to one fact, i.e., accused-appellant No.4,

Paresh has given a cycle chain blow on the head of P.W.1 by which

he sustained bleeding injury which stood corroborated with the

evidence of P.W.5, the doctor. Rest part of the occurrence as narrated

by the prosecution witnesses does not have any corroborative

material. Therefore, the inevitable conclusion to be drawn from the

conjoint reading of the evidence of the prosecution witnesses could

only prove the case against the accused-appellant No.4, Paresh

Chandra Mohanta in regard to his guilt under Section 323 of the IPC.

20. The prosecution has failed to bring home the charge against any

of the surviving accused-appellants, i.e., accused-appellants no.1 and

2. Although similar set of evidence has come against the accused-

appellant no.3, who has since died but it is definite that no evidence

has come on record against the accused-appellants nos.1 and 2.

Therefore, the impugned judgment of conviction stands modified to

the extent that the accused-appellant no.4 Paresh Chandra Mohanta is

convicted for the offence punishable under Section 323 of the IPC

alone and rest of the accused persons (that is accused-appellants No.1

and 2) are acquitted of all the charges.

21. The learned trial Court, while convicting all the appellants for

the offences punishable under Sections 148/323 of the IPC sentenced

them to undergo R.I. for three months each. I intend to affirm the

sentence imposed upon appellant no.4 on the count of his conviction

under Section 323 of the I.P.C.

22. At this stage, Mrs. Kumudinee Panda, learned Amicus Curiae,

submitted that the appellant no 4 was aged about 35 years at the time

of the occurrence. Presently, he would be approximately 63 years of

age.

The learned Counsel further submitted that, considering the age

of the appellant no.4, the long lapse of time since the occurrence, and

the prolonged pendency of the matter, sending him to serve out the

remaining custody period at this belated stage would serve no useful

purpose. It is further submitted that the appellant has clean

antecedents, with no other criminal case, similar or otherwise,

pending or reported against him. Over the years, he has lived

peacefully, well integrated into society, and is presently leading stable

family life. Incarcerating him at this distant point of time, it was

urged, would not advance the purpose of justice but rather cause

unnecessary hardship to aged individual and his family.

In view of these circumstances, learned Counsel prayed that the

appellant no.4 be extended the benefit of Section 360 of the Code of

Criminal Procedure and/or the Probation of Offenders Act, 1958,

considering the nature of the offences, the long passage of time, and

their personal circumstances.

23. Upon thoughtful consideration of the submissions made and

after perusal of the record, it is apparent that the occurrence took

place over two decades ago. The appellant has already faced the strain

and stigma of criminal proceedings for a considerable length of time.

He has no previous criminal antecedents and is reported to have

maintained peaceful conduct ever since. Having regard to his

advanced age, clean background, and the long lapse of time since the

incident, I am of the considered view that this is a fit case for

extending the benefit of probation to the appellant.

Reliance is placed on the Judgement of Rattan Lal v. State of

Punjab1, wherein the Hon'ble Supreme Court held that the object of

the Probation of Offenders Act is to reform the individual offender

and to prevent the conversion of a youthful or first-time offender into

a habitual criminal by subjecting him to prison life. It was held thus: -

"The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are

AIR 1965 SC 444

guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act."

Support for this view may be drawn from the decisions of this

Court in Pathani Parida & another vs. Abhaya Kumar

Jagdevmohapatra2 and Dhani @ Dhaneswar Sahu vs. State of

Orissa3 wherein leniency was shown in similar factual circumstances.

24. Accordingly in the light of foregoing discussion, while

affirming the conviction under Section 323 of the I.P.C. against

appellant no.4, instead of sentencing him to imprisonment, this Court

directs that he be released under Section 4 of the Probation of

Offenders Act, 1958, for a period of three months, upon his executing

a bond of Rs.5,000/- (Rupees Five Thousand) within one month with

one surety for the like amount, to appear and receive sentence when

called upon during the said period and, in the meantime, to maintain