THE HIGH COURT OF ORISSA AT CUTTACK CRA No.74 of 1994 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Puria @ Purusottam Jena ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. B. B. Mohanty, Advocate For the Respondent : Mr. Sobhan Panigrahi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 07.04.2026 :: Date of Judgment: 16.04.2026 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant is directed against the judgment and order dated 22.02.1944 passed by the learned Additional Sessions Judge, Jajpur in S.T. No.190/25 of 1993, whereby the appellant has been convicted for the offence under Section p. 2 304 Part-II of I.P.C. and on that count, he has been sentenced to undergo R.I. for six years. 2. Heard Mr. B.B. Mohanty, learned counsel for the appellant and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State. 3. The prosecution case, in brief, is that on 23.09.1991, Jugal Pradhan (P.W.2), a servant of Gundichabihari Pal (P.W.5), along with P.W.5 and his son Sangram (since deceased), was returning from their Janhi field. Upon reaching in front of the house of the accused, the mother and sister of the accused allegedly began to abuse them, which was protested by P.W.5 and the deceased. At that juncture, the accused suddenly came out of his house, armed with a wooden piece resembling a log of a cot, and, shouting to kill Sangram, rushed towards him and forcefully hurled the same. The wooden piece struck Sangram on his chest and the right side of his neck near the ear, as a result of which he fell down. When P.W.5 attempted to apprehend the accused, he was obstructed by Maheswar Rout (P.W.4). Thereafter, the accused fled from the spot with the wooden piece and is alleged to have thrown it into a p. 3 nearby river. The injured Sangram was immediately shifted to the hospital, where he was declared dead. Subsequently, at the instance of P.W.5, Akshya Pal (P.W.1) lodged a written report before the I.I.C., Dharmasala Police Station, which was registered as Ext. 1. During the course of investigation, the Investigating Officer held inquest over the dead body and sent it for post-mortem examination. P.W.7, the Doctor conducted the post-mortem examination over the dead body of the deceased Sangram and opined that the cause of death was subdural haemorrhage and shock resulting from injury to the right temporal region, which was ante-mortem in nature. Upon completion of investigation, charge-sheet was submitted against the accused for the offence under Section 302 of I.P.C. On the stance of complete denial and claim of trial, the appellant was put to trial. 4. In order to substantiate its case, the prosecution examined eight witnesses. Out of whom, P.W.1 was the informant and a post-occurrence witness. P.W.2 was an eye-witness to the occurrence and a servant of P.W.5. P.W.3 is the mother of the deceased, victim. P.W.4 was an independent eye-witness to the occurrence. P.W.5 was both an eye- p. 4 witness to the occurrence and the father of the deceased. P.W.6 was a hostile witness. P.W.7 was the doctor, who conducted the post-mortem examination over the dead body of the deceased, and P.W.8 was the Investigating Officer. On behalf of the defence, D.W.1 was examined, who is a relative of the victim and was alleged to have been present at the time of occurrence. 5. The appellant stood charged for commission of offence under Section 302 of I.P.C. However, after analysing the evidence adduced by the prosecution as well as the defence put forth by the accused, the learned trial Court found the appellant not guilty of the offence he was charged but arrived at the conclusion that the prosecution could prove its case beyond all reasonable doubt against the appellant for commission of offence under Section 304 Part-II of I.P.C. On that count, he has been sentenced to undergo R.I. for six years. The aforementioned judgment of conviction and order of sentenced dated 22.02.1994 passed by the learned Additional Sessions p. 5 Judge, Jajpur in S.T. No.190/25 of 1993 is under challenge in the present appeal. 6. In the present case, the prosecution has examined P.Ws.1, 2, 4 and 5 as the eye witnesses to the occurrence. All of them have supported the prosecution case and sustained elaborate cross-examination by the defence. However, their testimony remained unshaken. Therefore, the testimony of the eye witnesses stood corroborated with each other. P.W.1 in his deposition has stated that the occurrence took place on 23.08.1991 at about 4.30 P.M. While returning from the work, he witnessed the incident. On the way, he saw that Maheswar Rout (P.W.4), Gundicha Pal (P.W.5) and Akshya Pal (P.W.6). Gundicha Pal informed him that while they were returning from their janhi field along with Sangram (the deceased) and Jugala, they were humiliated by Janjali and Kiran. At that time, Purusottam (the present appellant) came out of his house holding a split wood and threw it with force, which struck the chest of Sangram, causing his death. Immediately thereafter, Sangram was shifted to hospital. Page 6 of 17 Similarly, P.W.2 has deposed that he was accompanying Akshya Pal when the occurrence took place, at that time, Janjali and Kiran armed with lathis were standing at the field and started abusing them. Despite protest, they did not listen. At that time, the appellant came out of his house carrying a leg of a cot and ran towards the spot with an intention to assault Sangram. While running towards him, the appellant threw the wooden plank towards Sangram, which hit on the chest and thereafter hit his right side neck. Sangram fell down after getting injured. He further deposed that the appellant was running away with the wooden plank which was attempted to be snatched by Gundicha Pal. However, the appellant threw the cot leg into the river and fled away. In a similar vein, P.Ws.4 and 5 have also narrated the incident in minute detail attributing a consistent and specific overt act to the appellant in causing injury to the deceased. P.W.3 also witnessed the incident and deposed that he took Sangram (the deceased) to the nearby Dharmasala hospital, where the attending doctor declared him brought dead. The testimony of P.W.3 further lends corroboration to the evidence of P.Ws.1, 2, 4 and 5. Page 7 of 17 P.W.7 was the doctor, who examined the deceased. He deposed that on 23.08.1991, he conducted the post-mortem examination over the dead body of Sangram and he found the following injuries:- “The deceased was aged about 21 years, average body built, rigourmotites present, but eyes partially opened congested and pupils dilated, there is blood stains present over the face, chest and right side nape of the neck and upper arm. After cleaning it, it was seen that bleeding from nose and right ear and multiple superficial punctured wounds (thorn prick limb) present over right nape of the neck upper part of the right chest and anterior aspect of right upper arm. There is an abrasion of ¼” x ¼” over the right chest wall at the level of 6th rib. Another heeled abrasion present on right knee of ½” x ¼”. ON DISSECTION:- 2. On opening the skull there is subdural haematoma present over the right temporal region and brain matters are congested. Other visceras like lungs, liver spleen kidney are congested. Heart : right chamber contents blood and the left chamber empty. Stomach contains about 150 grams of undigested food materials with peculiar smell. All the above injuries are antemortem in nature. The cause of death is due to subdural haemorrhage and shock on the right temporal region. Time since death of the P.M. examination is within 18 to 36 hours. Ext 3 is my post mortem report and 3/1 is my signature.” 7. All these witnesses have in unison narrated the incident in minute details and their versions stood corroborated not only with the evidence of the doctor but also the other documentary evidence and the ocular evidence of post-occurrence witnesses. The learned trial Court, upon a p. 8 careful consideration of the prosecution evidence as well as by taking into consideration of the defence plea, weighed the same in its proper perspective to returned findings in the impugned judgment. Taking into account the defence contention that the deceased sustained injuries on his head due to a fall, the learned trial Court, in paragraphs-9 and 10 of the impugned judgment, has held as follows:– “9. From the evidence of the Doctor P.W.7 it shows that Sangram died due to head injury. The doctor is very much clear that this injury is not possible by fall. He is of the opinion that if the fell is very forceful then this injury is possible which he found on the right temporal region of the victim. From the evidence of doctor and other witnesses it is clear that Sangram faced homicidal death due to injury on his head, which was ante mortem in nature. After cross examination to the Doctor nothing has been elicited to discard this view. How the plea of the accused is that while Sangram was snatching Katuri from his father his leg slipped so he fell down with face upwards and head coming in contact with the stone packings of the river Brahmani embankment and his legs were towards the road. Since the road was muddy due to rain which presupposes that the victim was on the road and while struggling for possession of katuri his legs slipped. The reasonable conclusion will be that when the legs slipped and a person falling with face upwards then his legs must go forward, because of slippery of the road. So in such situation the victim cannot go backward unless he is pushed backward. In this case there is absolutely no evidence or suggestion from the side of the defence that Sangram was pushed by his father. The suggestion to the P.Ws and evidence of Ext.1, which I will discuss later, shows that the legs of Sangram slipped as the road was muddy, so he fell down with face upwards and it coming in contact with stone. There is no injury on the back p. 9 or on the back side of the head of Sangram. According to the doctor there was injury on the right temporal region. There is no evidence that while falling the victim fell with his face tilting towards right. So that the right temporal region came in contact with a hard and blunt object. Because the doctor found injury on the right temporal region whereas the suggestion and plea of the accused is that Sangram fell down straight with face upward. So the injury sustained by Sangram is not possible by falling his face upward due to slipping of his legs as the road was muddy and slippery. There is no evidence on record to show that the cloth of Sangram was soiled with mud either noticed by the doctor or by any of the witnesses or suggested by the defence to any or the prosecution witnesses or their own witness. Since the head injury found on the person of victim not possible by fall as suggested by the defence on the other hand the opinion of the doctor transpires from his report and evidence that it is a homicidal death. So now it is to be seen who is responsible for the death of Sangram. 10. The specific case of the prosecution is that as transpires from the evidence of P.Ws.1, 2, 3, 4 and 5 that this accused threw a leg of a cot (wood piece) forcefully to the victim which hit on the chest and right side of the head near the ear. From the evidence also it is clear that the length of the wood piece was about one cubit. So it cannot hit a pinpointed place. The evidence that was it touched the chest and neck near the right ear. So the specific evidence on record is that the victim sustained injury on the right side of his head near the right ear because of the impact of wood piece thrown by this accused to him from a close distance with utterance of killing him.” 8. The findings recorded by the learned trial Court by taking into account the evidence of P.Ws.1, 2, 3, 4 and 5 cannot be faulted with. The learned trial Court has meticulously analysed the evidence and rightly arrived at the conclusion that the prosecution failed to establish the p. 10 charge under Section 302 of I.P.C. beyond all reasonable doubt. The learned trial Court, however, found that the injury sustained by the deceased on his right temporal region was the result of a forceful throw of a wood piece by the accused. The said injury as opined by the doctor (P.W.7) was sufficient in the ordinary course of nature to cause death and the deceased ultimately succumbed to the same. However, the evidence on record suggests that the appellant had no intention of murder while throwing the wood piece to Sangram but by throwing the wood piece, he must have the knowledge to cause such bodily injury which is likely to cause the death. Hence, the evidence available on record satisfies the ingredient to bring the offence under Section 304 Part-II of I.P.C. The learned trial Court in paragraph-17 of the judgment has summed up the conclusion inter alia stating as under:- “17. It is submitted by the learned Advocate for the accused that there cannot be any intention of murder by accused while throwing the wood piece to Sangram. So this case does not come u/s-302 I.P.C. According to the spot map Ext. 6 Sangram was lying at the end of the road by the side of the embankment and the distance between the place where the sickle was lying is 20’ and the width of the road is 14". The specific case of the prosecution is that they were on the road when the accused threw the wood piece. That will be from a close distance p. 11 about 7’ to 10’.The accused had rushed towards Sangram and, giving a forceful throw of the wood piece then he must have the knowledge that it will likely to cause the death. So the submission of the learned advocate for the accused bears some grounds that the accused may not have the intention to commit murder. But by throwing the wood piece he must have knowledge to cause such bodily injury which is likely to cause the death. So from the facts and circumstances of the case this case comes squarely u/s- 304 Part-II of the I. P.C. After going through the entire evidence on record and giving my anxious consideration to the submission of the parties and looking to the broad probabilities of the case I am convinced, that the minor contradictions shown by the defence regarding the testimony of P.Ws. 1 to 5 are not at all material in view of the facts and circumstances of the present case and the prosecution has proved its case beyond all reasonable doubt u/s. 304 part II I.P.C. but not u/s. 302 I.P.C. Hence, I held the accused guilty u/s. 304 part II of the I.P.C. and convict him thereunder.” 9. After analyzing the entire ocular evidence as well as documentary evidence and carefully going through the reasoning of the learned trial Court, I am in complete agreement with the impugned judgment. Hence, no interference is called for. Accordingly, the same is affirmed. 10. At this stage, learned counsel for the appellant submitted that the incident relates back to the year 1991. At that point of time, the appellant was 21 years of age and at present he is in his late fifties and leading a respectful life along with his family. He further submitted that the appellant has no criminal antecedents and the learned trial Court’s record p. 12 while sentencing the appellant that admittedly there is no previous conviction is reported against the appellant. Over the years, he has led a dignified life, 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, in the fitness of situation, the appellant may be extended the benefit of the Probation of Offenders Act read with Section 360 Cr.P.C. 11. Learned counsel for the appellant further submitted that directing the appellant to undergo the custodial sentence at this distant point of time would not subserve the ends of justice. Therefore, while considering the question of sentence, the Court is required to take into account the surrounding circumstances, the nature of the offence, the character of the offender and the long lapse of time since the occurrence. Page 13 of 17 In such circumstances, it is prayed that this Court may consider extending the benefit of probation under Section 4 of the Probation of Offenders Act, 1958. 12. The Hon’ble Supreme Court in Chellammal and Another v. State represented by the Inspector of Police1 has elaborately explained the scope, object and significance of the Probation of Offenders Act, 1958 while considering the question of extending the benefit of probation to a convict. The Hon’ble Supreme Court has underscored that the legislative intent behind the enactment of the Probation of Offenders Act is essentially reformative in nature, aiming to provide an opportunity to first-time or less serious offenders to reform themselves rather than subjecting them to incarceration. It has been emphasized that the provisions of the Act are intended to prevent the deleterious effects of imprisonment on individuals who can otherwise be rehabilitated as responsible members of society. The Court has further highlighted that Section 4 of the Probation of Offenders Act confers a wide discretion 1 2025 INSC 540 p. 14 upon the courts to release an offender on probation in appropriate cases and that the said provision has a broader and more expansive ambit than Section 360 of the Code of Criminal Procedure, 1973. While discussing the interplay between the aforesaid provisions, the Hon’ble Supreme Court has also clarified that courts are duty-bound to consider the applicability of the Probation of Offenders Act in cases where the circumstances justify such consideration, and if the court decides not to extend the benefit of probation, it must record special reasons for such refusal. The relevant observations of the Hon’ble Supreme Court are reproduced hereunder:- “26. On consideration of the precedents and based on a comparative study of Section 360, Cr. PC and sub-section (1) of Section 4 of the Probation Act, what is revealed is that the latter is wider and expansive in its coverage than the former. Inter alia, while Section 360 permits release of an offender, more twenty-one years old, on probation when he is sentenced to imprisonment for less than seven years or fine, Section 4 of the Probation Act enables a court to exercise its discretion in any case where the offender is found to have committed an offence such that he is punishable with any sentence other than death or life imprisonment. Additionally, the non-obstante clause in sub-section gives overriding effect to sub-section (1) of Section 4 over any other law for the time being in force. Also, it is noteworthy that Section 361, Cr. PC itself, being a subsequent legislation, engrafts a provision that in any case where the court could have dealt with an accused under the provisions of the Probation Act but has p. 15 not done so, it shall record in its judgment the special reasons therefor. 27. What logically follows from a conjoint reading of sub- section (1) of Section 4 of the Probation Act and Section 361, Cr. PC is that if Section 360, Cr. PC were not applicable in a particular case, there is no reason why Section 4 of the Probation Act would not be attracted. 28. Summing up the legal position, it can be said that while an offender cannot seek an order for grant of probation as a matter of right but having noticed the object that the statutory provisions seek to achieve by grant of probation and the several decisions of this Court on the point of applicability of Section 4 of the Probation Act, we hold that, unless applicability is excluded, in a case where the circumstances stated in subsection (1) of Section 4 of the Probation Act are attracted, the court has no discretion to omit from its consideration release of the offender on probation; on the contrary, a mandatory duty is cast upon the court to consider whether the case before it warrants releasing the offender upon fulfilment of the stated circumstances. The question of grant of probation could be decided either way. In the event, the court in its discretion decides to extend the benefit of probation, it may upon considering the report of the probation officer impose such conditions as deemed just and proper. However, if the answer be in the negative, it would only be just and proper for the court to record the reasons therefor. ” 13. It is seen from the record, particularly the proceeding dated 02.03.1994 of this Court in the present appeal that the appellant remained in the custody from November, 1991 to the date of conviction i.e. on 22.02.1994. He was granted bail by this Court on 02.03.1994. Hence, the appellant remained in custody for a period of about two years five months. Page 16 of 17 14. Regard being had to the facts of the present case, particularly the long lapse of time since the occurrence, the absence of criminal antecedents of the appellant and the overall circumstances emerging from the record, this Court is of the considered view that the case of the appellants deserves consideration under the beneficial provisions of the Probation of Offenders Act. In view of the aforesaid legal position and the peculiar facts and circumstances of the case, this Court is inclined to extend to the appellants the benefit contemplated under Section 4 of the Probation of Offenders Act. 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 further 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 p. 17 and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year. To ensure that the punitive element is not rendered illusory, while invoking the provision of section 5 of P.O. Act, the fine amount is enhanced to Rs.5,000/- (Rupees five Thousand), which shall be deposited within two months from the date of judgement. The fine amount to be deposited shall be disbursed to the LRs of the deceased in accordance with the provisions U/s357 of Cr.P.C. Failing to make good the compensation amount within the time frame granted by this Court, the appellant shall be proceeded in accordance with Sub-section (2) of Section 5 of the P.O. Act. 16. With this observation, the CRA is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 16th April, 2026/ Swarna