THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 22 of 2000 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Kalu Behera ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. B.K. Mishra, Advocate For the Respondent : Mr. A.K. Apat, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 12.02.2026 : Date of Judgment: 19.02.2026 S.S. Mishra, J. This criminal appeal is directed against the judgment of conviction and order of sentence dated 21.12.1999 passed by the learned 1st Additional Sessions Judge, Berhampur, in S.C. No.28 of 1999(S.C. No. 215 of 1999 G.D.C) whereby the appellant was found guilty of the offence punishable under Section 354 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-, in default to undergo R.I. for one month. 2. Heard Mr. B.K. Mishra, learned Counsel for the appellant and Mr. A.K. Apat, learned Additional Government Advocate for the State. 3. The prosecution case, in brief, is that at about midnight of 03.04.1999, the victim girl, then aged about nine years, was sleeping on the danda verandah of her house along with her younger sister. It is alleged that the accused, taking advantage of the late hours, lifted the cloth worn by the victim and forcibly inserted his finger into her private part (vagina), as a result of which she sustained pain and raised alarm. Hearing her cries, her parents, who were sleeping in the adjoining room, immediately came out and enquired about the incident. The victim disclosed that the accused, namely Kalu Behera, had inserted his finger into her private part and thereafter ran into his house and closed the door. On the following morning, the informant-mother accompanied the victim to Berhampur Sadar Police Station and brought the police to the village; however, the accused was not found in his house. On the point of jurisdiction, the case was handed over to Mahila Police Station, Berhampur. The Officer-in-Charge of the said police station took up investigation, got the victim medically examined and, upon completion of investigation, submitted charge-sheet against the accused for the alleged offence. On the stance of denial and claim of trial, the appellant has been subjected to trial after charges were framed. 4. To substantiate its case, the prosecution examined six witnesses in total. P.W.1 was a co-villager of the informant. P.W.2 was the doctor, who examined the victim on police requisition. P.W.3 is the informant-mother. P.W.4 is the prosecutrix-victim. P.W.5 was another co-villager. P.W.6 was the Officer-in-Charge of Mahila Police Station, who was also the Investigating Officer of the case. Certain documents were also exhibited on behalf of the prosecution. 5. The learned Trial Court, upon appreciation of the evidence on record, found the testimony of the prosecutrix to be cogent and reliable and convicted the appellant. The learned Trial Court observed as follows: “11. That apart, the piercing cross-examination of the defence also could not be able to shake the evidence of the girl on the material particulars as regards the commission of the occurrence. No suggestion has been put to her that she has not seen the accused for want of light at that place. On the other hand, she has emphatically stated that it was the accused who had inserted his finger inside her vagina, when her mother opened the door at her shouting, the accused ran inside his house and closed the door. I do not find any infirmity in the statement of the victim girl and accordingly, her statement is found to be cogent and reliable.” After considering the medical evidence and the other materials available on record, the learned Trial Court recorded the finding of guilt against the accused under Section 354 of the Indian Penal Code and sentenced him to undergo imprisonment for one year along with fine as indicated above. Being aggrieved by such judgment of conviction and order of sentence, the present appeal has been preferred. 6. At the time of hearing of the appeal, Mr. Mishra, learned counsel appearing for the appellant, fairly submitted that he does not intend to assail the finding of conviction recorded by the learned trial Court on merits. The challenge, therefore, confined solely to the quantum of sentence imposed upon the appellant. It was contended that the incident in question dates to the year 1999 and that nearly three decades have elapsed since the date of occurrence. Learned counsel further submitted that the appellant has already undergone approximately four months of incarceration during investigation and trial. It was also brought to the notice of this Court that the appellant is presently around 65 years of age and that there is no material on record to indicate his involvement in any subsequent criminal activity of a similar nature. Emphasis was laid on the long passage of time, the advanced age of the appellant, and the absence of any repeat offence, with a prayer that the benefit of the Probation of Offenders Act is extended in the peculiar facts and circumstances of the case. 7. This Court is conscious of the fact that “the act complained of” involves a sensitive and serious matter affecting the dignity and bodily integrity of a minor girl. It is also true that if such an act were to be committed in the present day, it would attract more stringent penal provisions. It is also a foundational principle of criminal jurisprudence that “nullum crimen, nulla poena sine lege,” which signifies that no person can be subjected to punishment except in accordance with the law as it stood at the time of commission of the offence. The sentence must therefore be assessed within the statutory framework then applicable. Page 6 of 8 8. Having bestowed consideration to the submissions advanced and upon examining the materials on record, this Court proceeds to consider the question of sentence. The appellant has been convicted under Section 354 of the Indian Penal Code. It is not in dispute that he has already undergone certain period in custody. The occurrence pertains to the year 1999 and the appeal has been pending in this Court from 2000, the appellant is of advanced age, and there is no material on record indicating his subsequent involvement in any criminal activity. In Bijaya Kumar Naik @ Jharia @ Bijaya Naik v. State of Orissa1, this Court, in a similar case involving conviction under Section 354 IPC, extended the benefit of the Probation of Offenders Act. The principle laid down therein squarely applies to the present case. In view of the aforesaid circumstances, this Court is of the considered opinion that the ends of justice would be adequately met by extending to the appellant the benefit of the Probation of Offenders 1 2024 ILROnLine Orissa 1032 Act instead of directing him to undergo further sentence of imprisonment. 9. 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 imprisonment, this Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of three months 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 and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of three months. 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.10,000/- (Rupees Ten Thousand), which shall be deposited within two months from the date of judgement. The fine amount to be deposited shall be disbursed to the victim/LRs 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 P.O. Act. 10. The appeal is accordingly partly allowed and disposed of with the aforesaid observation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 19th of February, 2026/ Swarna Designation: Senior Stenographer