THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.42 of 2003 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Kulu @ Goutam Behera ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Pratik Nayak, Advocate For the Respondent : Mr. Sobhan Panigrahi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 07.05.2026 :: Date of Judgment: 22.05.2026 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 23.01.2003 passed by the learned Addl. Page 2 of 13 District & Sessions Judge, Fast Track Court, Baripada in S.T. No.47/255 of 2002, whereby the appellant has been convicted for the offences punishable under Sections 452 and 506(ii) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years on each count with a direction that both the sentences shall run concurrently. The appellant, however, was acquitted of the charges under Sections 324 and 294 IPC. 2. Heard Mr. Pratik Nayak, learned counsel for the appellant and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State. 3. The prosecution case in brief is that one Dhananjoy Behera of village Chitrada lodged a written report before the O.I.C., Morada Police Station alleging therein that prior to the occurrence, the present appellant had allegedly committed rape upon his youngest daughter, for which a criminal case was instituted against him. During the pendency of the said case, there was a proposal for marriage between the appellant and the victim girl and accordingly, an affidavit was allegedly filed to facilitate the release of the appellant on bail. Subsequently, as the appellant did not fulfil the promise of marriage, the informant moved the Sessions Court seeking cancellation of the bail granted to the appellant and the said petition was pending at the relevant time. It was further alleged that on 13.07.2000 at about 8.00 P.M., while the informant and his family members were present inside their house, the appellant came near the house and abused them in obscene language. Thereafter, he allegedly entered into the house holding a sword and threatened to kill the family members. According to the prosecution, when the appellant attempted to assault the wife of the informant, the blow came in contact with a hanging iron wire. It is further alleged that while preventing the assault, the informant caught hold of the sword and sustained injury on his left palm. 4. On the basis of the aforesaid report, Morada P.S. Case was registered for offences under Sections 452, 294, 324 and 506(ii) IPC. Upon completion of investigation, charge-sheet was submitted against the appellant and after commitment, the case was tried by the learned Addl. District & Sessions Judge, Fast Track Court, Baripada. Page 4 of 13 5. The defence plea of the appellant was one of complete denial. According to him, he had gone to the house of the informant pursuant to a request made for discussion regarding the proposed marriage and while he was sitting in the verandah, the informant, his wife and daughter assaulted him by means of lathi and sword. It was specifically pleaded that the present case had been foisted as a counterblast to the criminal case instituted against the informant side for causing injuries to him. 6. In order to substantiate its case, the prosecution examined eight witnesses in all. P.W.1 is the informant and injured witness. P.Ws.2 and 3 are the wife and daughter of the informant respectively, who are claiming to be the eye witnesses to the occurrence. P.W.4, the brother of P.W.1, is a post-occurrence witness. P.W.5 also claimed to have seen the occurrence. P.W.7 was the doctor who examined the injured informant and P.Ws.6 and 8 were the Investigating Officers. 7. The learned trial Court upon detailed appreciation of the oral and documentary evidence adduced by the prosecution, came to hold that though there are certain inconsistencies regarding the allegation of assault and utterance of obscene words, the prosecution had successfully established that the accused had criminally trespassed into the house of the informant while armed with a sword and had threatened the informant and his family members with dire consequences. The learned trial Court relied upon the consistent testimonies of P.Ws.1, 2, 3 and 5, which were found to be corroborative on the material particulars relating to the offences under Sections 452 and 506(ii) IPC. However, finding absence of cogent and reliable evidence to conclusively prove the offences under Sections 324 and 294 IPC, the learned trial Court acquitted the accused of the said charges. Accordingly, the appellant was convicted and sentenced as indicated above. The relevant portion of the aforesaid judgment is extracted herein below for ready reference:- “………..On scrutiny of the evidence of this witness, I find that she has not stated the whole truth, but the statement of this witness that the accused entered into the house of P.W.1 holding a sword and threatened to kill the family members, corroborates the statements of P.Ws.1 to 3. 15. P.W.7- the Medical Officer, found one incised wound of size 3 cm x 1/5 cm x 1/5 cm over base of left thumb finger. The injury was simple as per the opinion of the doctor. Thus, medical evidence corroborates the fact that P.W.1 sustained injury by coming in contact with a sharp cutting weapon like sword. 16. P.W.8 the Investigating Officer has stated that he examined the witnesses and sent requisition for examination of P.W.1. He did not find any mark of violence on the spot. Contradictions have also been confronted to this witness. He has also stated about the registration of a counter case against P.Ws.1, 2 and 3 under sec. 307 IPC on the report of the brother of accused. 17. Counter case vide S.T. 12/45/2002 has also been posted today for judgment. I have analysed the evidence and it has been established that P.W.1 assaulted the accused in exercise of right of his private defence to his person as well as to the persons of his other family members. The present accused has been found to have committed house trespass. While considering the evidence of this case in the light of the analysis of evidence made in the counter case, I find that the statement of the informant that accused entered into his house by holding a sword and threatened to kill his family members, finds sufficient corroboration from the evidence of P.Ws.2, 3 and 5. But there is no cogent and reliable evidence that the accused voluntarily caused hurt to the informant by the sword and uttered obscene words causing annoyance to others. The prosecution, therefore, while failing to establish the offence U/Ss. 324/294 IPC, has succeeded in establishing the offence U/Ss.452 & 506 (ii) I.P.C. against the accused. The accused, therefore, is found not guilty for the offences U/Secs. 324/294 I.P.C. and is acquitted thereof. Further, the accused is found guilty under sec. 452 & 506 (ii) I.P.C. and is convicted thereunder.” 8. Aggrieved by the aforementioned findings led to the conviction of the appellant under Sections 452/506(ii) of the IPC and eventual sentence, the appellant has filed the present appeal. 9. P.W.1 is the informant in the instant case, whereas P.Ws.2, 3 and 5 were the eye witnesses to the occurrence. P.W.1 in his testimony has deposed that the accused standing in front of his house abused him in obscene language and threatened that he would also commit rape to his other daughter. The accused thereafter came holding a sword and while attempting to give a blow to his wife, since the sword came in contact with an iron wire, his wife got escaped from the blow. The accused thereafter cut hold of his wife and attempted to give a blow, but this witness cut hold of the sword, as a result of which, he sustained injury in his left palm. He snatched the sword from the hand of the accused. The said version of P.W.1 stood corroborated by the evidence of other eye witnesses. All the witnesses have unequivocally deposed before the court that the accused appellant came in front of their house, abused the family members of the informant and assaulted them. Rest part of the evidence of the witnesses being not relevant for the purpose of deciding as to whether the offence under Sections 452/506(ii) of IPC is attracted or not, I am not delving upon those evidences. In this context, it is relevant to mention that the appellant has already been found not guilty for commission of offence under Sections 324/294 of IPC. In order to appreciate as to whether the evidence brought on record by the prosecution is sufficient to attract the offence under Sections 452 or 506(ii) of IPC, the ingredients of those offences required to be analysed. Section 442 defines ‘House trespass”. For ready reference, the same is reproduced below:- “442. House-trespass.—Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass”. 10. For the purpose of attracting the offence under Section 452 of IPC, i.e., the offence for house trespass on preparation to hurt, assault or wrongful restrain, the first ingredient required to be proved on record is that the accused has unauthorizedly entered into the house and committed the crime of assault or causing hurt or wrongfully restrain the victims. In the instant case, all the eye witnesses have very categorically deposed that the accused appellant started abusing and assaulting the informant (P.W.1) and his wife (P.W.2) in front of the house. None of the witnesses have stated that the accused has entered inside the house. From the reading of the evidence of the witnesses, it is very clear that the incident had happened at the road side in front of the house, which cannot be fitted to the definition of ‘house trespass’ as contemplated under Section 442 of IPC. In so far as the offence of assault and hurling abused in filthy language is concerned, the learned trial court has disbelieved the evidence of the eye witnesses, hence acquitted the accused for offence under Sections 324/294 of IPC. 11. In view of the available evidence on record, this Court is of the considered view that the prosecution could not prove its case beyond all reasonable doubt to bring home the charge under Section 452 of IPC. Therefore, the conviction recorded by the learned trial court for offence under Sections 452 and 506(ii) of IPC stands modified and the appellant is found not guilty of offence under Section 452 of IPC and is acquitted of the said charge. However, the appellant only convicted for offence under Section 506 (ii) of IPC. 12. From the analysis of the evidence of all the witnesses, it is very clear that the appellant being an accused in a case under Section 376 of IPC initiated by the informant on the allegation of having committed rape on his daughter and after obtaining bail in the said proceeding, the appellant has attempted to criminally intimidate and has threatened the informant. It is admitted on record that the appellant is an accused in case of commission of offence under Section 376 of IPC on the allegation that he has committed rape on the daughter of the informant and on his promise to marry her and on the basis of the compromise he has been granted bail in that case. However, after grant of bail, the appellant has threatened to kill or cause grievous hurt to the informant and his family members. Overwhelming evidence on record sufficiently indicates that the overt act attributed to appellant by evidence of all the witnesses attract the ingredients of Section 506(ii) of IPC. Page 11 of 13 13. In view of the aforementioned, the appeal is partly allowed. In so far as the conviction under section 452 of IPC is concerned, the same is set aside and the conviction recorded under Section 506(ii) of IPC is affirmed. 14. At this stage, learned counsel for the appellant submitted that the incident relates back to the year 2000 and at that point of time the appellant was 21 years and at present he is in his early fifties. It is submitted that keeping in view the procrastinated judicial process undergone by the appellant in this case and the ordeal of trial faced by the appellant, this Court may dispose of the appeal by giving consideration to the sentence. The appellant has undergone the rigors of trial for about three years. Thereafter, the appeal was preferred against the conviction in the year 2003. The appeal has been prolonging to be heard for more than two decades. Over the years, he has led a dignified life, integrated well into society, and is presently leading a settled family life. Therefore, the appellant is entitled to grant the benefit under the provisions of Probation of Offenders Act. Learned counsel further draws the attention of this Court to paragraph-18 of the impugned judgment, which reads as under:- “As per the provisions of Section 361 Cr.P.C., it is mandatory for the court to record special reasons for not applying the provisions of sec.360 Cr.P.C. If it is found that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedent of the offender and the circumstance in which the offence was committed, then only the offender would be sentenced to imprisonment or fine. In the case in hand, the convict is an adult aged about 20. He has also been convicted U/S 376 I.P.C. and sentenced to undergo imprisonment for seven years and to pay fine of Rs.5000/- i.d. R.I. for one year in S.T. No.6/52 of 2000. When the said case was pending, the convict committed the above offence. Hence, there is less chance for his reformation. I am therefore not inclined to invoke the provisions of P.O. Act in his favour.” 15. It is contended by the learned counsel for the appellant that the appellant has prayed for extension of the benefit of the provisions under Section 360 Cr.P.C., however the prayer was declined by the learned trial court on the ground that the appellant has already been convicted under Section 376 of IPC and has been sentenced to undergo R.I. for seven years and to pay a fine of Rs.5,000/-, in default to undergo R.I. for one year. Page 13 of 13 16. Regard being had to the aforementioned, since the appellant in another case has already been convicted under Section 376 of IPC, the benefit of P.O. Act cannot be granted to him. However, considering the fact that the incident pertains to the year 2000 and the appeal has been pending since 2003, this Court deems it just and proper to reduce the sentence awarded to the accused appellant to that of the sentence he has already undergone. Further, in order to ensure that the punitive element of the sentence is not rendered illusory, this Court deems it appropriate to impose a fine of Rs.7,000/- (Rupees seven thousand) and in default of payment of fine, the appellant shall further undergo S.I. for a period of one month. The fine amount to be deposited within one month shall be disbursed to the victim/informant in accordance with Section 357 of Cr.P.C. as a token of compensation. 17. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 22nd May, 2026/Ashok MOHAPATRA