IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.126 of 2002 CNR-ODHC010017592002 (In the matter of an application under Section 374 (2) of the Criminal Procedure Code) Kichaka Bag ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. D.P. Dhal, Senior Advocate For the Respondent : Mr. Jateswar Nayak, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 09.07.2026 :: Date of Judgment: 30.07.2026 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment of conviction and order of sentence dated 12.06.2002 passed by the learned Additional Sessions Judge, Titilagarh in Sessions Case No. 79(B)/32 of 1999, whereby the appellant, though charged with the offence punishable under Section 302 of the Indian Penal Code, however, has been convicted for the offence punishable under Section 325 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/- with a further direction to undergo rigorous imprisonment for one month in default of payment of fine. 2. Heard Mr. D.P. Dhal, learned Senior Advocate for the appellant and Mr. Jateswar Nayak, learned Additional Government Advocate for the State. 3. The prosecution case, in brief, is that on 05.04.1999, in the morning, Barun Bag, the younger brother of the informant, was found missing from the house, whereupon his family members commenced a search for him. The accused, who was a neighbour of the informant, was allegedly on inimical terms with the family. During the search, the accused spread a rumour in the village that the deceased had scolded Barun Bag, as a result of which the latter had left the house. At about 5.00 P.M. on the same day, after Barun Bag returned home, the deceased questioned the accused as to why he had spread such a rumour. Enraged thereby, the accused allegedly dealt a forceful blow with a bamboo lathi on the left side of the deceased's neck and shoulder, causing him to fall down unconscious. It is further alleged that after the informant's mother and Barun Bag sprinkled water on the deceased, he regained consciousness. On returning home, the informant learnt about the occurrence from the deceased and immediately took him to the Police Station, where the First Information Report was lodged. On the basis of the said report, the present case was registered and investigation was taken up. During the course of treatment, the injured succumbed to the injuries sustained by him. Upon completion of investigation, charge-sheet was submitted against the accused for the offence punishable under Section 302 of the Indian Penal Code. 4. In order to bring home the charge, the prosecution examined ten witnesses. P.W.1 is the informant, who is a post-occurrence witness. He deposed that he learnt about the incident from the deceased after returning home and thereafter took him to the Police Station to lodge the First Information Report. P.W.2 is Barun Bag, the younger brother of the informant, who had gone missing on the date of occurrence and is an eyewitness to the incident. P.W.3 is the mother of the informant and the daughter-in-law of the deceased, who also claimed to be an eyewitness. P.W.4 was a witness to the inquest over the dead body, while P.W.5 was a witness to the seizure of the alleged weapon of offence. P.W.6 was the doctor who initially examined the injured prior to his death, and P.W.7 was the doctor who conducted the post-mortem examination. The remaining witnesses were the Investigating Officers who conducted the investigation at different stages. 5. Upon a careful appreciation of the oral and documentary evidence on record, the learned trial Court found the prosecution to have successfully established that the appellant had dealt a single blow with a bamboo lathi on the left side of the neck and shoulder of the deceased during a sudden altercation. The learned trial Court found the ocular version of the eyewitnesses to be reliable and corroborated by the medical evidence. However, on a scrutiny of the medical evidence, the learned trial Court noticed that the injury initially found on the deceased was simple in nature and that although the deceased subsequently succumbed to his injuries, the prosecution had failed to establish that the rupture of the spleen and the intestinal injury, which ultimately caused the death, were the direct consequence of the blow inflicted by the appellant. The learned trial Court further observed that the deceased had remained at home for more than twelve hours after the occurrence, died more than three days later while undergoing treatment, and that the treatment records from the Sub-Divisional Hospital had neither been seized nor proved in evidence. It was also noticed that the Medical Officer conducting the post-mortem had admitted that, in the case of an elderly person, a sudden fall on a hard and rough surface could also result in rupture of the spleen and injury to the intestine. Taking into consideration the circumstances in which the occurrence took place, namely, that the assault was committed in the heat of the moment during an altercation, the learned trial Court held that neither the intention to commit murder nor the requisite knowledge to attract the offence punishable under Section 302 of the Indian Penal Code had been established. Accordingly, the learned trial Court recorded the following findings: “10) The question now is whether the accused thereby committed an offence U/S.302 I.P.C. From the evidence of P.W.6, who had first examined the deceased as the injured when he was alive, it is found that the injury was simple but he had suspected fracture of the left side clavicle. From the evidence of P.W.7 and from the post- mortem examination report it is found that there was fracture of the left clavicle and the spleen had ruptured. According to the doctor there was intestine injury also present. He was of the opinion that cause of death of the deceased was due to rupture of the spleen and injury in the intestine. On cross-examination P.W.7 stated that the deceased was having enlarged spleen. This was however not there in the injury report of P.W.6 or in the post- mortem examination report. P.W.7 has rather stated that sudden fall on a hard and rough object there can be rupture of the spleen and injury to the intestine in case of a old man. It cannot be said that the rupture of the spleen or the injury caused to the intestine were the direct result of the blow given by the accused on the shoulder of the deceased. After receiving the blow the deceased continued to remain in his house for more than 12 hours without going to a doctor. As is found from the evidence on record he was under treatment at the Sub-Divisional Hospital, Titiagarh till his death. The death occurred more than three days after the blow was dealt. The bed-head ticket and the other medical papers have not been seized in this case. No medical officer from the Sub-Divisional hospital has been examined in this regard. Therefore, it cannot be said that the injury in the intestine of the deceased and the rupture of the spleen were the direct effect and consequence of the blow given by the accused. It appears from the evidence of P.W.3 that the accused dealt the blow in a fit of anger when the deceased challenged him and there was altercation between both of them. There is no scope for the finding thereof that the accused dealt the blows with the intention to commit the murder of the deceased. When it is not possible for one to conclude positively that the cause of death of the deceased in this case was the direct effect of the blow given by the accused it can hardly be said that the accused had the knowledge that the blow given by him was likely to cause such injury which in the ordinary course may lead to the death of the deceased. Therefore, this is rather a fit case where the accused can be convicted U/S.325 I.P.C. instead of Section 302 I.P.C. 11) Due to what has been discussed I hold that the prosecution has failed to prove the charge U/S.302 I.P.C. against the accused but nevertheless succeeded in proving the charge against him U/S.325 I.P.C., beyond all reasonable doubt. The accused is therefore held guilty U/S.325 I.P.C. and convicted thereunder.” 6. Consequently, the learned trial Court acquitted the appellant of the charge under Section 302 of the Indian Penal Code and instead convicted him for the offence punishable under Section 325 of the Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/-, with a further direction to undergo rigorous imprisonment for one month in default of payment of fine. Aggrieved by the said judgment of conviction and order of sentence, the present appeal has been preferred. 7. At the outset, Mr. Dhal, learned Senior Counsel for the appellant, took this Court through the evidence on record and assailed the impugned judgment on merits. However, after advancing his submissions for some time, he fairly submitted that he would confine his challenge to the quantum of sentence. It was contended that the appellant has already undergone incarceration for about five months and eighteen days and has endured the rigors of a protracted criminal prosecution. Learned counsel further submitted that the occurrence is of the year 1999 and the present appeal, preferred in the 2002, has remained pending for more than twenty-four years. It was argued that the appellant, who was a young man at the time of the occurrence, is now considerably advanced in age and has since settled in life. According to the learned counsel, directing the appellant to undergo the remaining part of the sentence after such an inordinate lapse of time would serve no meaningful purpose. Learned counsel further submitted that the appellant has no criminal antecedents and that no other criminal case is stated to be pending against him. It was urged that the appellant has, over the years, remained integrated with society and is leading a settled family life. In such circumstances, his incarceration at this distant point of time would neither advance the ends of justice nor serve any meaningful penological objective. Accordingly, it was prayed that, having regard to the long passage of time, the nature of the offence, the antecedents of the appellant, and the overall facts and circumstances of the case, this Court may extend to the appellant the benefit of the provisions of the Probation of Offenders Act, 1958. 8. While analyzing the evidence on record, this Court finds no reason to disagree with the findings recorded by the learned trial Court. Hence, this Court affirms the conviction recorded against the appellant for the offence under Section 325 of the Code. 9. The record reveals that the occurrence relates back to the year 1999. At the time of the incident, the appellant was in his thirties. He was convicted by the impugned judgment and order of sentence passed by the learned trial Court and the present appeal has remained pending since the year 2002. As of now, the appellant is in his fifties. Considerable time has elapsed since the occurrence and much water has flown under the bridge. The appellant is stated to have already undergone incarceration for about five months and eighteen days. It is further not in dispute that he has no criminal antecedents and no other criminal case is stated to be pending against him. In the interregnum, he has led a settled family life and remained integrated with society. In such circumstances, this Court is of the considered view that this is a fit case where the benefit contemplated under the Probation of Offenders Act, 1958 deserves to be extended to the appellant. The Hon'ble Supreme Court in Chellammal and Another v. State represented by the Inspector of Police1, has held that it is the statutory obligation of the sentencing Court to consider the applicability of the provisions of the Probation of Offenders Act and that any refusal to extend such benefit must be supported by reasons. In the facts and circumstances of the present case, the submission advanced by the learned counsel for the appellant seeking extension of the benefit under the Probation of Offenders Act merits consideration. 10. The Hon'ble Supreme Court in Chellammal (supra) 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 observed as follows: “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 1 2025 INSC 540 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 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.” Having regard to the aforesaid legal position and considering the facts of the present case, particularly the nature of the offence under Section 325 of the Indian Penal Code, the long lapse of more than twenty-four years since the occurrence, the period of incarceration already undergone by the appellant, the absence of any criminal antecedent and the settled life presently being led by him, this Court is of the considered opinion that the appellant deserves to be extended the benefit contemplated under Section 4 of the Probation of Offenders Act, 1958, instead of directing him to undergo the remaining part of the sentence. Additionally, the case of the appellant is also covered by ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra2 and Dhani @ Dhaneswar Sahu vs. State of Orissa3. In view of the aforesaid legal position and the peculiar facts and circumstances of the case, this Court is inclined to extend to the appellant the benefit contemplated under Section 4 of the Probation of Offenders Act. 11. Hence, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing the appellant to 2 2012 (Supp-II) OLR 469 3 2007 (Supp.II) OLR 250 suffer 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 and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year. The appellant shall also be liable to pay the compensation of Rs.20,000/- (Rupees twenty thousand) to the family of the deceased under Section 5 of the Probation of Offenders Act, 1958. 12. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 30th Day of July, 2026/Subhasis Mohanty Designation: Personal Assistant Location: High Court of Orissa, Cuttack. Date: 30-Jul-2026 13:38:04