THE HIGH COURT OF ORISSA AT CUTTACK CRA No.72 of 1994 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Prodyamn Kumar Sarangi ……. Appellant -Versus- State of Odisha ……. Respondent For the Appellant : Ms. Rakhi Mishra, Amicus Curiae For the Respondent : Mr. Sobhan Panigrahi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 19.02.2026 :: Date of Judgment: 17.03.2026 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 31.01.1994 passed by the learned Addl. p. 2 Sessions Judge, Paralakhemundi in Sessions Case No.23 of 1993, whereby the appellant was convicted under Sections 451, 354 and 325 IPC (the charge under Section 307 IPC having been altered to Section 325 IPC), Section 27 of the Arms Act and Section 3(1)(xi) of the SC & ST (Prevention of Atrocities) Act. He was sentenced to 2 years R.I. under Section 451 IPC, 7 years R.I. under Section 325 IPC, and 7 years R.I. under Section 27 of the Arms Act. No separate sentence was given for Section 354 IPC. Additionally, he received 5 years R.I. and a fine of Rs. 2,000/- (with 6 months S.I. for default) under Section 3(1)(xii) of the SC & ST (POA) Act. He was acquitted of the charge under Section 376 IPC. 2. The present appeal has been pending since 1994. When the matter was called for hearing consistently, none appeared for the appellant. Therefore, on 10.02.2026, this Court requested Ms. Rakhi Mishra, learned counsel, who was present in Court to assist the Court as Amicus Curiae. She has readily accepted the same and after obtaining entire p. 3 record, assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Ms. Mishra. 3. Heard Ms. Rakhi Mishra, learned Amicus Curiae for the appellant and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State. 4. The prosecution case in brief is that on 18.11.1992 at about 6.00 P.M., a platoon of 3rd Battalion OSAP, including the present appellant, was proceeding towards Gangabada Anti-Naxalite Camp. On the way, near Benga Sahi village, the appellant allegedly entered the dwelling house of the informant (P.W.1), an Adivasi woman belonging to the Scheduled Tribe community. At that time, P.W.2 (Sebati), another tribal woman, was present with her. Their husbands were reportedly away from home. 5. According to the FIR version, the appellant enquired about the whereabouts of the husbands of P.W.1 and P.W.2. Upon learning that they were not present, he allegedly dragged P.W.1. When she raised alarm, the appellant fired from his service rifle, as a result of which she p. 4 sustained a gunshot injury on her left arm near the elbow. Out of fear, she took shelter in a neighboring house. The matter was reported on the following day. 6. During investigation, an additional allegation emerged that after P.W.1 escaped, the appellant caught hold of P.W.2 and committed forcible rape upon her. On the basis of such allegations, charge-sheet was submitted for the alleged commission of offences under Sections 450/376/354/307 IPC, Section 27 of the Arms Act and Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act. 7. The Investigating Officer seized the service rifle, bayonet, 19 live cartridges and one empty cartridge case from the appellant. Pellets were allegedly recovered from inside the house of the informant. A Test Identification Parade (T.I. Parade) was conducted during the investigation. 8. The defence plea was that while proceeding to camp, the platoon suspected Naxalite presence and brought their rifles to firing position. Page 5 of 22 The appellant claimed that he momentarily went aside to attend the call of nature and, while moving hurriedly thereafter, his hand accidentally came into contact with the trigger, causing misfiring. He denied entering the house with any criminal intent and denied the allegation of rape. 9. In order to prove its case, the prosecution examined 26 witnesses including the informant (P.W.1), the alleged rape victim (P.W.2), their husbands, independent villagers, police personnel, medical officers and the Investigating Officer. The defence examined two witnesses to support the plea of accidental misfire. 10. The learned trial Court, upon appreciation of evidence, held that the informant (P.W.1) had sustained a grievous gunshot injury caused by the accused, rejecting the plea of accidental misfiring on the ground that the rifle had to be consciously brought to firing position and discharged. While disbelieving the charge of rape under Section 376 IPC due to lack of medical corroboration and omissions in the FIR, the Court inferred from the circumstances namely, the accused entering the house of tribal women in the absence of their husbands and firing at close range that he p. 6 had outraged their modesty and dishonoured them, thereby attracting Sections 451, 354 IPC and Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act. It further altered the charge under Section 307 IPC to Section 325 IPC, holding that though there was no intention to commit murder, grievous hurt was voluntarily caused, and also convicted the accused under Section 27 of the Arms Act for unlawful use of his service firearm. The relevant portion of the aforesaid judgment is extracted herein below for ready reference:- “12. Coming to the last point of determination it is seen from the evidence of the doctor that the range was within four feet and the injury was near the left hand elbow of the P.W.1. Besides, it is seen from the above evidence on record that the pallats were found sticking to the ground. Under such circumstances it is clear that due to firing from the short range, the pallets had been scattered and one of the pallets had pierced into the hand of P.W.1. Thus, it is quite evident that the accused has got no intention to cause, murder of P.W.1 or P.W.2 but he had tried to threaten them so as to satisfy his desire. 12. ii) It is seen that accused being a sepoy knows the consequences of his act. The act of the accused that has been brought to the picture is enough to say that the said act would have taken the life of any. However, the said act of the person of P.W.1 as has been opined by the doctor P.W.17. This injury has p. 7 been caused voluntarily. Thus, it can be said that the accused is liable to be punished u/s.325 I.P.C. instead of 307 I.P.C. iii) In view of the discussion above, while it has been held that the accused had entered into the house and has committed the offence under section 354, I am to say that the ingredients of the offence u/s.451 I.P.C. are fulfilled instead the ingredient of the offence u/s.450 I.P.C. as none of the offence punishable with imprisonment for life has yet been proved. iv) So far the Section 27 of the Arms Act is concerned, it is seen that without any authority the accused has used the gun for unlawful purpose causing injury on the person of P.W.1 and thus he is liable u/s.27 of the Indian Arms Act. v) So far the offence u/s. 3(1)(xi) of S.C./S.T. Prevention of Atrocities Act is concerned the law reads as follows :- “Whoever, not being a member of Scheduled caste or scheduled Tribe assaults or uses force to any woman belonging to a Scheduled caste or a scheduled Tribe with intent to dishonour or outrage her modesty shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. Under Sec.3(2)(vii) reveals that whoever not being a member of scheduled caste or scheduled tribe being a public servant p. 8 commits any offence under this section shall be punishable with imprisonment for a term which shall not be less than one year which may extend to the punishment provided for that offence.” In the present case, it has been duly proved that the accused had entered into the house of an Adibasi lady. The act of the accused has also caused dishonour the Adibasi lady. Besides, it has been proved that the modesty of p.w.1 and 2 has been out-raged. Thus, the accused is liable u/s.3(1)(xii) of S.C./S.T. Prevention of Atrocities Act. 13. In view of my above discussion, I hold the accused guilty u/s.451/354/325 (instead of section 307 I.P.C.)/27 Indian Arms Act and 3(i)(xi) of S.C. & S.T. Prevention of Atrocities Act and convict him thereunder and he is acquitted for the offence u/s.376 I.P.C.” 11. Ms. Mishra, the learned Amicus Curiae for the appellant contended the impugned judgment on the ground of serious evidentiary infirmities. She submitted that P.W.1, the injured and the most material witness, failed to identify the appellant in Court. In criminal jurisprudence, identification of the assailant by the injured witness carries paramount evidentiary value. The failure of P.W.1 to identify the appellant breaks the chain of proof linking the appellant to the alleged p. 9 firing. Conviction based primarily on the testimony of P.W.2, whose evidence regarding rape having been disbelieved, the conviction is not safe. 12. Ms. Mishra further argued that once the learned trial Court rejected the allegation of rape and found P.W.2 unreliable to that extent, her testimony ought to have been approached with greater caution even in respect of the lesser charge of outraging modesty. The allegations were interwoven and stemmed from the same transaction. In the absence of consistent and reliable identification evidence, conviction under Section 354 IPC cannot be sustained. Conviction under Section 3(1)(xi) of the SC/ST (POA) Act is unsustainable as there is no evidence whatsoever to establish that the alleged act was committed on account of the victim belonging to a Scheduled Tribe, and mere proof of her caste, absent specific caste-based intent as held in Masumsha Hasanasha Musalman v. State of Maharashtra, does not attract the rigors of the Act. The discharge of the firearm was accidental. The contemporaneous conduct of immediately reporting misfire to superior officers negates p. 10 mens rea. There is no evidence of intention to cause grievous hurt, a necessary ingredient under Section 325 IPC. Moreover, essential ingredients of Section 27 of the Arms Act are not made out, as the firearm was a service weapon lawfully possessed and there is no independent proof of “use” in the commission of a criminal act beyond reasonable doubt. 13. Lastly, she submitted that even assuming that some offence is made out, the incident is of the year 1992 and more than three decades have elapsed. The appellant has already undergone about one year and four months of incarceration and has lost his service. Considering the long lapse of time, absence of antecedents and mitigating circumstances, the sentence deserves to be reduced to the period already undergone, or the appellant may be extended the benefit of probation in the interest of justice. 14. Mr. Panigrahi, the learned Addl. Standing Counsel submitted that the judgment of conviction recorded by the learned trial Court is well- reasoned and based on cogent oral, medical and circumstantial evidence. Page 11 of 22 It is contended that the gunshot injury on P.W.1 stands conclusively proved through the reliable testimony of P.W.1 and corroborated by P.W.2, P.W.4 and other post-occurrence witnesses. The medical evidence of P.W.17 clearly establishes that the injury was a firearm injury caused from a close range of about four feet and was grievous in nature. The defence has not disputed that the appellant’s service rifle discharged one round on the relevant date; rather, the appellant himself reported “misfiring” upon returning to camp, which forms a strong incriminating circumstance. 15. He further submitted that the plea of accidental firing is wholly untenable. P.W.11, the Zamadar, has categorically deposed that when the rifle is in “charge magazine position,” firing is not possible unless the bolt is consciously operated and the lock opened. The Doctor’s opinion regarding firing range, recovery of pellet pieces from inside the dwelling house, and shoe marks of a sepoy leading to the village cumulatively establish voluntary discharge of the firearm. He relied on Gurcharan Singh & another v. State of Punjab, reported in 1962 SCC OnLine SC p. 12 42, wherein it was held that examination of an expert is not an inflexible requirement if other reliable evidence establishes the use of the weapon. 16. Mr. Panigrahi contended that though the appellant was acquitted under Section 376 IPC, the absence of motive does not weaken the prosecution case when direct ocular testimony and surrounding circumstances point towards guilt. He placed reliance on Surinder Singh v. State (Union Territory of Chandigarh), reported in (2021) 20 SCC 24, wherein the Hon’ble Supreme Court held that absence of motive is not fatal when credible eyewitness account exists. He also submitted that the entry into the house of tribal women in the absence of their husbands and use of force clearly attracts Sections 451 and 354 IPC and Section 3(1)(xi) of the SC/ST (POA) Act. The conviction under Section 325 IPC and Section 27 of the Arms Act is thus legally sustainable, and the appeal deserves dismissal. 17. I have carefully considered the submissions advanced by the learned Amicus Curiae for the appellant and the learned counsel for the State and have gone through the records of the case, including the p. 13 depositions of the witnesses, the medical evidence and the documents produced. 18. Upon consideration of the rival submissions and careful scrutiny of the evidence on record, this Court finds that the prosecution has successfully established that P.W.1 sustained a grievous firearm injury on the date of occurrence. The testimony of P.W.1 regarding the factum of injury is corroborated by the medical evidence of P.W.17, who opined that the injury was caused by a firearm discharged from close range and was grievous in nature. The seizure of pellet fragments from inside the dwelling house and the surrounding circumstances lend assurance to the prosecution version that the injury was not self-inflicted nor fabricated. It is pertinent to note that P.W.2, an eyewitness to the occurrence, has categorically identified the appellant both in the Test Identification Parade and before the Court. Extract of P.W.2’s testimony is profitable to be reproduced for true appreciation: “4. Prior to the occurrence, I had not seen the accused at all. After occurrence Gram Vikas People and O.M.P people had brought the accused to our village and there also I identified the accused. Page 14 of 22 Thereafter I also identified the accused in the T.I. Parade. The T.I. Parade was conducted inside the jail. The Police people were inside the Jail. But, Garabanda Police were outside the jail. As Police people told to identify the accused I identified the accused inside the jail.” Her testimony substantially corroborates the evidence of P.W.1 regarding the manner of occurrence and the role of the appellant in the firing incident. Such consistent ocular evidence, duly supported by medical testimony, inspires confidence and firmly establishes the appellant’s culpability for causing grievous hurt. 19. However, insofar as the conviction under Section 354 IPC is concerned, this Court finds that the learned trial Court itself disbelieved the prosecution case with respect to the allegation of rape and recorded acquittal under Section 376 IPC. The substratum of the allegation relating to outraging modesty emanated from the same transaction. The evidence in that regard is neither consistent nor of unimpeachable character so as to sustain a conviction independently. In criminal jurisprudence, where two views are possible, the one favourable to the p. 15 accused must prevail. Accordingly, the conviction under Section 354 IPC is liable to be set aside. 20. With respect to Section 27 of the Arms Act, the conviction cannot be sustained in law. The Hon’ble Supreme Court in Surinder Singh v. State (Union Territory of Chandigarh), reported in (2021) 20 SCC 24, has categorically held that post the 1988 amendment, Section 27 is strictly confined to contravention of Sections 5 or 7 of the Arms Act. Mere “illegal use” of a firearm does not ipso facto attract Section 27 unless it is shown that the weapon was used in violation of the licensing regime contemplated under Sections 5 or 7. It was held thus:- “29. Adverting to the conviction of the appellant under Section 27 of the Arms Act, it appears to us that the trial court has erred in arriving at his culpability. There is no gainsay that in order to prove a charge under Section 27 of the Arms Act, the prosecution must necessarily demonstrate contravention of either Section 5 or 7 of the Act. In the instant case, although not explicitly stated, it appears that the trial court has held it to be a case of breach of Section 5 of the Arms Act, which stipulates that no person shall use, possess, manufacture, etc. any firearms, unless such person holds a licence in this behalf, and prescribes a minimum punishment of 3 years of imprisonment. Page 16 of 22 30. The relevant extracts of unamended Sections 5 and 27 of the Arms Act which were in force at the relevant time, read as follows: “5. Licence for manufacture, sale, etc., of arms and ammunition.—(1) No person shall— (a) use, manufacture, sell, transfer, convert, repair, test or prove, or (b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearm or any other arms of such class or description as may be prescribed or any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder. *** 27. *** 27. Punishment for using arms, etc.—(1) Whoever uses any arms or ammunition in contravention of Section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. (2) Whoever uses any prohibited arms or prohibited ammunition in contravention of Section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of Section 7 and such use or act results in the death of any other person, shall be punishable with death.” p. 17 31. True it is that prior to the amendment of Section 27 of the Arms Act, vide Arms (Amendment) Act, 1988, the said provision penalised the use of any arms and ammunition for any “unlawful purpose”. However, post its amendment, Section 27 of the Arms Act is strictly confined to violation of conditions mentioned either under Section 5 or 7 of the Arms Act and the “unlawful purpose” of using arms and ammunition is no longer an inseparable component of the delinquency. 32. The appellant was admittedly a police official at the time of the incidence and the arms and ammunition used for the commission of the offence, were placed in his possession under the sanction accorded by the competent authority. The appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited under Section 5 of the Arms Act. It appears that the trial court was swayed by irrelevant considerations such as illegal use of the weapon, and lost track of the objective of the statute, which has been enacted to provide a licensing/regulatory regime, to enable law-abiding citizens to carry arms, and also to prohibit the possession, acquisition, manufacture, etc. of certain categories of firearms, unless authorised by the Central Government. In other words, illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27, without proving the misdemeanour under Section 5 or 7 of the Arms Act. At best, it could be a “misconduct” under the service rules, the determination of which was not the subject of the trial.” p. 18 In the present case, the appellant was admittedly a member of the armed force on duty and the rifle was issued to him under lawful authority. There is no evidence that he was in unauthorised possession of the firearm or that he used a prohibited arm in contravention of Section 7. Therefore, in the absence of proof of breach of Section 5 or 7, the essential statutory ingredients to attract the provision of Section 27 are not satisfied. The conviction under Section 27 of the Arms Act is accordingly set aside. 21. Nonetheless, the evidence on record clearly establishes that the firearm discharged from the appellant’s service rifle resulted in grievous hurt to P.W.1. Even if the plea of accidental discharge is considered, the manner of handling of a loaded service rifle inside a civilian habitation reflects culpable rashness and knowledge of likely consequences. The injury suffered by P.W.1 answers the definition of grievous hurt under Section 320 IPC. The prosecution has therefore proved the offence under Section 325 IPC beyond reasonable doubt. Page 19 of 22 22. In so far as the offence under Section 3(1)(xi) of the SC & ST (Prevention of Atrocities) Act is concerned, I have no reasons to disagree with the submission of Ms. Mishra that the appellant had no acquaintance with the victims, as such the accused was not even aware of the “caste” of the victim. Therefore, the overt act attributed to the accused cannot be intended by him to have caused harm, knowing the victims to be SC or ST. It was determined in the case of Masumsha Hasanasha Musalman vs State of Maharashtra, reported in 2000 (3) SCC 557, relevant part of which is extracted herein:- “Section 3(2)(v) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who p. 20 belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v) of the Act arises. In that view of the matter, we think, both the trial court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial court as well as by the High Court ought to be set aside.” 23. In conclusion, this Court finds that the prosecution has succeeded only to the limited extent of proving that the appellant caused grievous hurt to P.W.1 by discharge of a firearm, thereby attracting Section 325 IPC. However, the prosecution has failed to establish the essential ingredients of the offences under Section 354 IPC, Section 27 of the Arms Act, and Section 3(1)(xi) of the SC & ST (Prevention of Atrocities) Act. Consequently, while the conviction under Section 325 IPC is sustained, the remaining convictions cannot be legally maintained and are accordingly set aside. 24. On the question of sentence, it is not in dispute that the occurrence relates to the year 1992 and more than three decades have elapsed. The p. 21 appellant has already undergone incarceration for a period of approximately one year and four months during the investigation and trial. There is no material to show any subsequent criminal antecedent. 25. Considering the long lapse of time, the age of the case, the period already undergone in custody, and the overall circumstances, this Court is of the considered view that the ends of justice would be adequately met by giving him the benefit under Section 4 of the Probation of Offenders Act. This Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of six months on his executing bond of Rs.5,000/- (Rupees Five Thousand) 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 six months. 26. With the above modification in the sentence, the Criminal Appeal stands partly allowed. Page 22 of 22 27. This Court acknowledges the effective and meaningful assistance rendered by Ms. Rakhi Mishra, 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 17th March, 2026/Ashok Designation: Secretary