THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.332 of 2004 CNR No. ODHC010287482004 (In the matter of an application under Section 374 of Criminal Procedure Code) 1. Ramkali Bariha (dead) 2. Chhotu Singh Bariha ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. S.K. Joshi, Advocate For the Respondent : Mr. Sobhan Panigrahi, 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 04.10.2004 passed by the learned Special Judge, Nuapada in S.A. No.55 of 2003, whereby the appellants have been convicted for the offences punishable under Sections 354, 323, 506(1) read with Section 34 of the Indian Penal Code. Upon such conviction, they have been sentenced to undergo simple imprisonment for a period of three months for the offence under Section 354 of the Indian Penal Code and simple imprisonment for a period of two months each for the offences under Sections 323 and 506(1) of the Indian Penal Code, with a direction that all the substantive sentences shall run concurrently. 2. Heard Mr. S.K. Joshi, learned Counsel for the appellants and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State. 3. Although this appeal has been filed conjointly by two appellants, but during pendency of the appeal, it was informed to the Court that appellant no.1-Prakash Naidu has expired. Therefore, vide order dated 05.08.2025, the present appeal stood abated qua the appellant no.1, in the absence of any application under Section 394 Cr.P.C. by either the L.Rs of the deceased appellant or next friend. Hence, consideration of the present appeal is only confined to appellant no.2 alone. Page 3 of 13 4. The prosecution case, in brief, is that on 10.12.2002 at about 4.00 P.M., the informant, namely, Jirakhan Keut (P.W.1), along with Pramila Keut (P.W.2) and Sribant Keut (P.W.3), were engaged in fencing their agricultural land at village Dharambandha. At that time, all the accused persons allegedly arrived at the spot and abused P.W.1 in obscene and vulgar language. When P.W.1 protested, the accused persons allegedly threatened him with dire consequences, whereupon, out of fear, he left the place. Thereafter, P.W.1 learnt from P.Ws.2 and 3 that the accused persons had assaulted them, voluntarily caused them injuries, and used criminal force against them with the intention of outraging their modesty. On the basis of the written report (Ext.1) lodged by P.W.1, a Station Diary Entry No.162 dated 11.12.2002 was made and the report was forwarded to the Officer-in-Charge, Nuapada Police Station, whereupon a case was registered under Sections 147, 294, 354, 506 and 149 of the Indian Penal Code read with Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. During the course of investigation, the Investigating Officer examined the informant and other witnesses, issued injury requisitions in respect of the injured persons, namely, Sribant Keut and Pramila Keut, seized the caste certificate of P.W.1 under seizure list (Ext.4), and subsequently handed over the investigation to the Sub-Divisional Police Officer, Nuapada. Upon completion of investigation, charge-sheet was submitted against the accused persons for the aforesaid offences. During the pendency of the trial, one accused namely Bhagat Rout expired and, accordingly, the proceeding against him stood abated by order dated 03.08.2004. The remaining accused persons faced trial on the charges framed against them under Sections 294, 323, 354, 506(1) read with Section 34 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 5. In order to substantiate its case, the prosecution examined eight witnesses. P.W.1 is the informant, P.W.2 is the wife of the informant, and P.W.3 is the mother-in-law of the informant as well as the injured witnesses. P.Ws.4, 5 and 6 were cited as independent witnesses; however, as they did not support the prosecution case, they were declared hostile and cross-examined by the prosecution. P.W.7 was the Medical Officer who examined the injured persons, namely, P.Ws.2 and 3, and P.W.8 was the Investigating Officer who conducted the investigation and submitted the charge-sheet. 6. Upon an appraisal of the oral and documentary evidence adduced by the prosecution, the learned trial Court came to the conclusion that the prosecution had failed to establish the charges under Section 294 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 beyond reasonable doubt. However, the learned trial Court held that the evidence of the injured witnesses, duly corroborated by the medical evidence, satisfactorily established that the accused persons had voluntarily caused hurt to P.Ws.2 and 3, used criminal force against them with the intention of outraging their modesty, and had criminally intimidated P.W.1, all in furtherance of their common intention. Consequently, the learned trial Court convicted the appellants for the offences punishable under Sections 323, 354 and 506(1) read with Section 34 of the Indian Penal Code and, while declining to extend them the benefit of the Probation of Offenders Act, recorded the following findings: “10. On the face of the aforesaid evidence, I must come to the conclusion that the prosecution has miserably failed to bring home the charges u/s 294 I.P.C. read with section 3(1)(x) of the Act against the accused persons beyond all reasonable doubts. In that view the accused persons are acquitted from the said charges u/s 248(1) Cr.P.C. On the other hand, the prosecution has well proved the charges u/s 323/354/506(I)/34 I.P.C against the accused persons beyond all reasonable doubts. 12. In the result, I find the accused persons guilty u/s 323/354/506(I)/34 I.P.C. and convicted them thereunder. No previous conviction has been proved against the convicts. As per the case of the prosecution, on the date of occurrence the convicts went to the spot abused P.W.1 in vulgar words and threatened him to assault by tangia and P.W.1 ran away. Further it has been clearly established from the evidence that the convicts had assaulted P. Ws 2 and 3 and used criminal force on them to outrage their modesty. Also the convicts have voluntarily caused hurt to P.Ws. 2 and 3. That being so, I am of the opinion that this is a clear case where the convicts should not be released under the beneficial provisions of the P.O. Act.” 7. Accordingly, while acquitting the appellants of the charges under Section 294 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned trial Court found them guilty of the offences punishable under Sections 323, 354 and 506(1) read with Section 34 of the Indian Penal Code and sentenced them to undergo simple imprisonment for a period of three months under Section 354 of the Indian Penal Code and simple imprisonment for a period of two months each under Sections 323 and 506(1) of the Indian Penal Code, with a direction that all the substantive sentences shall run concurrently. Aggrieved by the said Judgment of conviction and Order of sentence, the present appeal has been preferred by the appellants. 8. Upon a careful appraisal of the evidence on record and the fact circumstances of the case, this Court finds no infirmity in the findings recorded by the learned trial Court. The testimonies of the injured witnesses, P.Ws.2 and 3, are cogent, consistent and inspire confidence. Their version stands duly corroborated by the medical evidence adduced by P.W.7. Nothing material has been elicited in their cross-examination so as to discredit their testimony. This Court is, therefore, of the considered view that the prosecution has successfully established the guilt of the appellants under Sections 323, 354 and 506(1) read with Section 34 of the Indian Penal Code beyond all reasonable doubt. Page 8 of 13 Consequently, the conviction recorded by the learned trial Court warrants no interference. 9. At the outset, Mr. Joshi, learned counsel for the appellants, fairly submitted that he would confine his submissions to the quantum of sentence. Learned counsel submitted that the occurrence took place in the year 2002 and the present appeal, preferred in the year 2004, has remained pending for more than two decades. It was contended that appellant No.2, who was about 32 years of age at the relevant time, is now about 56 years old. It was submitted that the appellant no.2 has already undergone about 11 days in custody. It was further submitted that the appellant no.2 has since settled in life and that directing him 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 no.2 has no criminal antecedents and that no other criminal case is stated to be pending against him. It was urged that he has remained integrated with society over the years and is leading peaceful lives. 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 offences, the antecedents of the appellant and the overall facts and circumstances of the case, this Court may extend him the benefit of the provisions of the Probation of Offenders Act, 1958. 10. The record reveals that the occurrence relates back to the year 2002. The appellant was about 32 years of age at the time of the incident. 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 2004. As of now, the appellant is about 56 years of age. More than two decades have elapsed since the occurrence, and much water has flown under the bridge. It is not in dispute that the appellant has no criminal antecedents, no other criminal case is stated to be pending against him, and that he has undergone a certain period in custody. During the interregnum, he has remained integrated with society and is stated to be leading a settled life. In such circumstances, this Court is of the considered view that this is a fit case for extending to the appellant the benefit contemplated under the provisions of the Probation of Offenders Act, 1958. 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. 11. 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 Sections 323/354/506(1)/34 of the Indian Penal Code, the long lapse of more than twenty years since the occurrence, the custody undergone, the absence of any criminal antecedent and the settled life presently being led by the appellant, 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 the ratio of the judgments of this Court in the cases 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. 12. Hence, the present Criminal Appeal, so far as the conviction is concerned, stands unaltered. But instead of sentencing the appellant no.2 2 2012 (Supp-II) OLR 469 3 2007 (Supp.II) OLR 250 to suffer imprisonment, this Court directs the appellant no.2 to be released under Section 4 of the Probation of Offenders Act for a period of six months on his executing a 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.2 shall keep peace and good behaviour and shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months. 13. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 30th July, 2026/Ashok MOHAPATRA