THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.108 of 2003 CNR No. ODHC010021372003 (In the matter of an application under Section 374 of Criminal Procedure Code) Chaitan Harijan ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Prabhav Behera, Advocate For the Respondent : Mr. Aurobinda Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 07.07.2026 : Date of Judgment: 30.07.2026 S.S. Mishra, J. The present appeal is directed against the judgment of conviction and order of sentence dated 17.04.2003 passed by the learned Sessions Judge, Korapur-Jeypore in Sessions Case No.74 of 2001, arising out of G.R. Case No.391 of 1999, whereby the appellant was found guilty of the offence punishable under Section 326 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 default stipulation to undergo further rigorous imprisonment for a period of six months. Page 2 of 12 2. Heard Mr. Prabhav Behera, learned Counsel for the appellant and Mr. Aurobinda Mohanty, learned Additional Standing Counsel for the State. 3. The prosecution case, in brief, is that on 10.07.1999, the deceased, Hemanta Gauda, son of Ghasi Ram Gauda of village Chargaon, had gone to the weekly market for purchasing household articles. At about 1.00 p.m., it is alleged that the accused, Chaitan Harijan, was engaged in a quarrel and physical altercation with one Sebak Khara of village Pupugaon. At that juncture, on noticing the deceased, the accused allegedly abused him in obscene language, suspecting him to have accompanied Sebak Khara, and thereafter assaulted him by dealing two kick blows on his abdomen while wearing boots. It is further alleged that the accused chased the deceased and again assaulted him on his abdomen and chest, causing him to fall on the ground. Thereafter, the accused is stated to have assaulted the deceased on the head with a split bamboo and allegedly exhorted that the deceased be killed and his body thrown into the Kolab Canal. Page 3 of 12 On hearing the commotion, Gaura Suna of village Ummiri, Nabin Harijan of village Chargaon and other bystanders intervened and rescued the deceased from the clutches of the accused. Having sustained injuries in the assault, the deceased was immediately shifted to the Primary Health Centre, Rabanaguda, for treatment. While undergoing treatment at about 5.30 p.m. on the same day, he orally reported the occurrence before the Assistant Sub-Inspector of Police attached to Ambaguda Police Outpost. The said oral report was reduced into writing, whereafter the Assistant Sub-Inspector took up preliminary investigation, made Station Diary Entry No.191 dated 10.07.1999 and forwarded the written report to the Officer-in-Charge, Jeypore Sadar Police Station for registration of a formal case. On receipt thereof, Jeypore Sadar P.S. Case No.87 dated 11.07.1999 was registered. During the course of treatment, the injured succumbed to his injuries on 26.07.1999. Upon completion of investigation, the Investigating Agency submitted charge-sheet against the accused for the offence punishable under Section 302 of the Indian Penal Code. Page 4 of 12 4. To substantiate the charges, the prosecution examined as many as sixteen witnesses and relied upon both oral and documentary evidence. In defence, the accused examined two witnesses and adduced oral evidence in support of his plea. 5. Upon a careful evaluation of the oral and documentary evidence on record, the learned trial Court found that the prosecution had successfully established that the accused had assaulted the deceased, resulting in injuries which ultimately led to his death about sixteen days thereafter. However, the learned trial Court observed that the medical evidence and the surrounding circumstances did not establish that the injuries inflicted were sufficient in the ordinary course of nature to cause death or that the accused had acted with the requisite intention or knowledge necessary to attract the offence of culpable homicide. Taking note of the nature of the injuries, the interval between the assault and the death of the injured, and the settled principles governing the distinction between culpable homicide and grievous hurt, the learned trial Court concluded that the act of the accused would appropriately fall within the ambit of Section 326 of the Indian Penal Code. Accordingly, the learned trial Court recorded the following finding: "Taking into consideration these principles of law, on the back-ground of the alleged acts committed by the accused in consequence of which the injured died about 16 days after, I hold that even the aforesaid act of the accused cannot amount to the offence of culpable homicide and on the other hand most reasonably it would amount to commission of grievous hurt. In result, I hold that the accused would be liable for the commission of grievous hurt under section 326 I.P.C. for his alleged act of assaulting the injured in the aforesaid manner." 6. Accordingly, while acquitting the appellant of the charges under Sections 302 and 304 of the Indian Penal Code, the learned trial Court found him guilty of the offence punishable under Section 326 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of three years. Assailing the said judgment of conviction and order of sentence, the appellant has preferred the present appeal. 7. Upon a careful analysis of the evidence on record and the attending facts and circumstances of the case, this Court finds that the conviction of the appellant under Section 326 of the Indian Penal Code is unsustainable. The prosecution case, as borne out from the evidence, reveals that the appellant had dealt two kick blows while wearing shoes. Page 6 of 12 It is not the prosecution case that any weapon, much less a dangerous weapon or means within the contemplation of Section 326 IPC, was used in the commission of the offence. It is further evident that the injured remained under medical treatment for about sixteen days before succumbing to the injuries. However, neither the post-mortem report nor the medical evidence establishes that the injuries sustained were grievous in nature. Equally, the prosecution has failed to establish the requisite intention or knowledge on the part of the appellant to cause death or grievous hurt. In the absence of any evidence demonstrating the use of a dangerous weapon or means, a shoe, by itself and in the facts of the present case, cannot be brought within the ambit of a "dangerous weapon or means" as contemplated under Section 326 IPC. Accordingly, this Court is of the considered view that the conviction of the appellant under Section 326 IPC cannot be sustained and the appellant is acquitted of the said charge. Nevertheless, the evidence on record unmistakably establishes that the appellant voluntarily caused hurt to the deceased. The ingredients of the offence punishable under Section 323 IPC stand duly proved beyond reasonable doubt. Consequently, while setting aside the conviction under Section 326 IPC, the appellant is held guilty and convicted for the offence punishable under Section 323 of the IPC. 8. While addressing on the quantum of setence, Mr. Behera, learned counsel for the appellant, submitted that the occurrence is of the year 1999 and the present appeal, preferred in the year 2003, has remained pending for more than two decades. It was argued that the appellant, who was in his mid-thirties at the time of the occurrence, is now in his mid- fifties 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. 9. The record reveals that the occurrence relates back to the year 1999. At the time of the incident, the appellant was in his mid-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 2003. As of now, the appellant is in his mid- 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 two months and nineteen 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 323 of the Indian Penal Code, the long lapse of more than twenty-five years since the occurrence, 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 conviction of the appellant is modified from Section 326 of the Indian Penal Code to that of Section 323 of the IPC. But instead of sentencing the appellant to suffer imprisonment, this Court 2 2012 (Supp-II) OLR 469 3 2007 (Supp.II) OLR 250 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. This Court further directs the appellant to pay compensation of Rs.10,000/- (rupees ten thousand) to the family of the deceased within two months from today as per Section 5 of the P.O. Act. 12. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 30th July, 2026/Swarna Designation: Senior Stenographer