THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 138 of 2004 (In the matter of an application under Section 374 of Criminal Procedure Code) (1) Baikuntha Barik (2) Prasanta Barik (3) Susanta Barik (4) Ramahari Patra ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. D.P. Dhal, Senior Advocate, Assisted by: Mr. Adish Jena, Advocate For the Respondent : Mr. Jateswar Nayak, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 14.05.2026 : Date of Judgment: 22.05.2026 S.S. Mishra, J. The present Criminal Appeal is preferred by the appellants assailing the judgment of conviction and order of sentence dated 27.04.2004 passed by the learned Addl. Sessions Judge (Fast Track Court), Balasore in S.T. Case No.5/69 of 2002, whereby the appellants, though acquitted of the charge under Section 307 of the Indian Penal Code, were convicted under Sections 341 and 323/34 of the Indian Penal Code and sentenced to undergo simple imprisonment for one month under Section 341 of the Indian Penal Code and rigorous imprisonment for six months under Section 323 of the Indian Penal Code along with a fine of Rs.500/- each, in default, to undergo further simple imprisonment for one month, with a direction that the sentences shall run concurrently. 2. Heard Mr. D.P. Dhal, learned Senior Counsel, assisted by Mr. Adesh Jena, learned Counsel for the appellants and Mr. Jateswar Nayak, learned Additional Government Advocate for the State. 3. The prosecution case, in brief, is that on 09.10.2001 at about 1:30 P.M., while the father of the informant, namely Golak Behari (P.W.8), was returning home after completing his carpentry work at Khantapada Hospital, the accused persons, who had allegedly concealed themselves near the thatched gate (tati) in front of his house, wrongfully restrained him and assaulted him mercilessly by means of thengas. As a result of such assault, P.W.8 sustained bleeding injuries on his head and other parts of his body. It is further alleged that the accused persons attempted to kill him by pressing a thenga against his neck, which caused to lose consciousness. Believing him to be dead, the accused persons fled away from the spot. Thereafter, some villagers arrived at the scene and shifted the injured to Nilgiri Hospital by a trekker. Considering the condition of the injured to be serious and critical, the doctor at Nilgiri Hospital referred him to the District Headquarters Hospital, Balasore for better treatment. On the basis of the aforesaid allegations, P.W.7 lodged the F.I.R. before Nilgiri Police Station. Upon registration of the case, the police took up investigation, conducted necessary seizures, issued injury requisition, and after completion of investigation, finding prima facie materials against the accused persons Susanta and Prasanta, submitted charge-sheet on 08.01.2003. Subsequently, the learned Trial Court, upon finding sufficient materials against accused Baikuntha Barik and Ramahari Patra, passed an order under Section 319 of the Cr.P.C. arraigning them as accused persons to face trial. Accordingly, all the accused persons faced the trial. 4. The plea of the accused persons was one of complete denial and false implication. 5. In order to bring home the charges against the accused persons, the prosecution examined as many as 10 witnesses and proved documents marked as Exts.1 to 5. The defence, on the other hand, neither examined any witness nor exhibited any document in support of its case. P.W.1 was a seizure witness to the seizure of one lathi. P.Ws.2 and 6 were the doctors, who treated the injured, namely P.W.8. P.Ws.4 and 5 were cited as eye-witnesses to the occurrence. P.Ws.3 and 9 were the Investigating Officers of the case. P.W.7 is the informant, P.W.8 is the injured victim, and P.W.10 is the wife of the injured. It appears from the evidence on record that P.Ws.3 and 4 did not support the prosecution case during trial and were accordingly declared hostile by the prosecution. Page 5 of 17 6. Upon appreciation of the oral and documentary evidence available on record and after hearing the submissions advanced by the parties, the learned trial Court came to hold that the prosecution had failed to establish the charge under Sections 307 and 326 of the Indian Penal Code against the accused persons beyond reasonable doubt. However, the learned trial Court found sufficient materials to conclude that the accused persons had wrongfully restrained and voluntarily caused hurt to the injured in furtherance of their common intention and accordingly convicted them under Sections 341 and 323 read with Section 34 of the Indian Penal Code. The concluding findings of the learned trial Court are reproduced herein below:- “8. In this case, the prosecution has failed to prove that the accused persons hás tried to kill P.W.8 and for some supervening circumstances they could not materialised the intention. Further, the doctor in his examination though mentioned the injury to be serious does not state that in which course of nature the injury could have caused death had it not been intervened in time. So, I do not find any material against the accused persons to hold them guilty U/s 307 of the IPC. Hence, the accused persons are acquitted from the charge U/s 307 IPC. There is no opinion regarding grievous hurt nor any x-ray plate. Hence, they are acquitted U/s 326 of IPC. 9. As discussed earlier, the accused persons restrained P.W.8 and assaulted. Hence, I found they guilty of the offences U/s 341 and 323 of the IPC read with Sec. 34 IPC. As there is admitted injury on the head and it was a premeditated assault, I do not feel it proper to extend the benefit of provision U/s 360 of the Cr.P.C. Hence, I convict and direct the accused persons to undergo Simple Imprisonment for one month U/s 341 IPC and Rigorous Imprisonment for six months U/s 323 IPC and a fine of Rs. 500/- each in default of which the accused persons to undergo further Simple Imprisonment for one month subject, to set off. The accused persons be taken into custody to undergo the imprisonment. The substantive punishment will run concurrently.” 7. Aggrieved by such Judgement of conviction and order of sentence, the present appellants have preferred the appeal. 8. Learned Senior Counsel Mr. Dhal, while assailing the impugned judgment, has strenuously argued the matter on merits by taking this Court through the evidence available on record. It is contended by him that P.Ws.4 and 5, who were projected by the prosecution as eye- witnesses to the occurrence, have not supported the prosecution case and were declared hostile. It is further submitted that although P.W.7, the daughter of the victim, and P.W.8, the injured victim himself, have spoken about the occurrence, their evidence primarily attributes the overt act to accused Baikuntha Barik and does not specifically assign any overt act to the other accused persons. Page 7 of 17 Learned Senior Counsel further submitted that though P.W.7 and P.W.8 have referred to one “Rama Patra/Rama Ch. Patra”, which may sound similar to the name of accused-appellant no.4, namely Ramahari Patra, such evidence does not inspire confidence. It is also pointed out that the injured himself has stated about the involvement of one Jayanta Barik in the assault, but the said person was never sent up for trial. In support of such contention, learned counsel has drawn the attention of this Court to the relevant portion of the evidence of P.W.8, which reads as follows:- “…..I was returning home at that time, when Jayanta Barik holding lathi way laid me on road. Thereafter when I wanted to go back in my cycle accd. persons holding thengas attacked me from front side whereas their companions Baikuntha Barik and Rama Ch. Patra attacked me from my backside on different parts of my body causing injuries on my forehead just after the right eye brow, head, right arm, and both the legs. In view of the assault I fell down on the road…..” It is further submitted by learned Senior Counsel that P.W.9, the Investigating Officer, has admitted in his evidence that there existed a counter case arising out of the same occurrence. Referring to the evidence of P.W.9, learned counsel submitted that the prosecution version suffers from material contradictions and embellishments. The relevant portion of the evidence of P.W.9 is reproduced herein below:- “There is a counter case P.S. case No.132 dtd.9.10.2001 U/s.341,325,307, and other offences and I was the Investigating officer in that counter case also, P.W.7 has not stated before me that at the relevant time while she was taking meals inside the house after returning from school heard hullah and came to the spot. She has also not specifically stated before me that her father sustained injury on his back, right leg, chest however she stated that her father sustained injury on other parts of the body along with head…….” On the basis of the aforesaid submissions, learned Senior Counsel contended that the prosecution has failed to establish the charges against the accused persons beyond all reasonable doubt and accordingly prays for acquittal of the appellants. 9. Upon careful consideration of the rival submissions and on meticulous appraisal of the evidence available on record, this Court finds that the prosecution evidence does not uniformly establish the involvement of all the accused persons beyond reasonable doubt. Admittedly, P.Ws.4 and 5, who were cited as eye-witnesses to the occurrence, have not supported the prosecution case and were declared hostile. Therefore, the case of the prosecution substantially rests upon the testimony of P.W.7, the daughter of the injured, and P.W.8, the injured witness himself. 10. It is well settled that the evidence of an injured witness ordinarily carries great evidentiary value. However, such evidence must also inspire confidence and be free from material contradictions insofar as the implication of each accused person is concerned. On close scrutiny of the evidence of P.W.8, it appears that the specific overt act has been consistently attributed mainly against accused-appellant no.1, namely Baikuntha Barik. The evidence of P.W.8 clearly indicates the active participation of accused Baikuntha Barik in the assault upon him. So far as accused-appellant no.4 Ramahari Patra is concerned, the injured has referred to one “Rama Ch. Patra”, but there is no cogent and unequivocal evidence to conclusively establish that the said reference unmistakably point towards accused-appellant no.4. Moreover, the prosecution evidence also discloses the name of one Jayanta Barik as an assailant, who was never sent up for trial, thereby creating a doubt regarding the exact identity and participation of the accused persons. Page 10 of 17 11. In criminal jurisprudence, suspicion, however strong, cannot take the place of proof. The prosecution is required to establish the guilt of each accused individually and beyond all reasonable doubt. In the present case, except the evidence against accused-appellant no.1 Baikuntha Barik, the materials available on record are neither cogent nor sufficiently reliable to sustain the conviction of accused-appellant nos.2 Prasanta Barik, 3 Susanta Barik and 4 Ramahari Patra. Accordingly, extending the benefit of doubt, accused-appellant nos.2, 3 and 4 are entitled to acquittal. 12. Therefore, the conviction and sentence of accused-appellant no.1 Baikuntha Barik are hereby affirmed. However, the conviction and sentence passed against accused-appellant no.2 Prasanta Barik, accused- appellant no.3 Susanta Barik and accused-appellant no.4 Ramahari Patra by the learned Addl. Sessions Judge (Fast Track Court), Balasore in S.T. Case No.5/69 of 2002 are hereby set aside and they are acquitted of all the charges. Their bail bonds stand discharged. Page 11 of 17 13. At this stage, on the question of sentence, Mr. Dhal, learned Senior Counsel appearing for accused-appellant no.1, submitted that this appellant has already undergone the rigors of criminal prosecution and trial for a considerable period. It is contended that after conclusion of the trial, the present appeal was preferred in the year 2004 and the matter remained pending for adjudication for nearly 22 years. Learned Senior Counsel submitted that the appellant, who was then in his mid-fifties, is presently about 77 years of age and, therefore, sending him back to custody at this belated stage to undergo the remaining sentence would serve no meaningful purpose. It is further submitted that the appellant has no criminal antecedents and no other criminal case, either of similar nature or otherwise, is stated to be pending against him. During the long intervening period, the appellant is stated to have led a peaceful and dignified life and has remained well integrated into society while maintaining his family responsibilities. According to the learned Senior Counsel, incarceration after such an inordinate lapse of time would not advance the cause of justice and may rather prove counter-productive by causing unnecessary hardship and social stigma to the appellant as well as his family members, particularly when there is no allegation of any subsequent criminal conduct on his part. In view of the aforesaid circumstances, learned Senior Counsel prays that this Court may consider extending to accused-appellant no.1 the benefit of the provisions of the Probation of Offenders Act read with Section 360 of the Cr.P.C. 14. The record reveals that the incident relates back to the year 2001 and at that point of time the appellant no.1 was in his mid-fifties. He has been convicted by the impugned judgment and order dated 27.04.2004. The present appeal is pending since 2004 and at present the appellant is in his late seventies. Much water has been flown under the bridge by now. Therefore, this is a fit case where the learned trial court ought to have been given the treatment under the Probation of Offenders Act. 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 apply the provisions of Probation of 1 2025 INSC 540 Offenders Act and non-granting of the benefit should be supported by reasoning. In the facts scenario of the present case, the prayer made by Mr. Dhal, learned Senior Counsel for the appellant for extending the benefit of the P.O. Act deserves merit to be considered. 15. 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 underscored that the legislative intent behind the enactment of the Probation of Offenders Act is essentially reformative in nature, aiming to provide an opportunity to first-time or less serious offenders to reform themselves rather than subjecting them to incarceration. It has been emphasized that the provisions of the Act are intended to prevent the deleterious effects of imprisonment on individuals who can otherwise be rehabilitated as responsible members of society. The Court has further highlighted that Section 4 of the Probation of Offenders Act confers a wide discretion upon the courts to release an offender on probation in appropriate cases and that the said provision has a broader and more expansive ambit than Section 360 of the Code of Criminal Procedure, 1973. While discussing the interplay between the aforesaid provisions, the Hon’ble Supreme Court has also clarified that courts are duty-bound to consider the applicability of the Probation of Offenders Act in cases where the circumstances justify such consideration, and if the court decides not to extend the benefit of probation, it must record special reasons for such refusal. The relevant observations of the Hon’ble Supreme Court are reproduced hereunder: “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 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. ” Regard being had to the facts of the present case, particularly the long lapse of time since the occurrence, the absence of criminal antecedents of the appellant and the overall circumstances emerging from the record, this Court is of the considered view that the case of the appellant deserves consideration under the beneficial provisions of the Probation of Offenders Act. The said view also finds support from the decisions of this Court in Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra2 and Dhani @ Dhaneswar Sahu vs. State of Orissa3 wherein in somewhat similar circumstances the benefit of probation was extended to the convicts. 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 no.1 the benefit contemplated under Section 4 of the Probation of Offenders Act. 16. In such view of the matter, the present Criminal Appeal in so far as the conviction relating to accused appellant no.1 is concerned, is turned down. But instead of sentencing the appellant no.1 to suffer 2 2012 (Supp-II) OLR 469 3 2007 (Supp.II) OLR 250 imprisonment, this Court directs the appellant no.1 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) 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 no.1 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. 17. 17. Accordingly, the Criminal Appeal is allowed in respect of accused-appellant nos.2, 3 and 4 and they are acquitted of the charges levelled against them. So far as accused-appellant no.1 is concerned, the Criminal Appeal stands partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 22nd May, 2026/Ashok MOHAPATRA