THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 388 of 2005 CNR No. ODHC010021382005 (In the matter of an application under Section 374(2) of Criminal Procedure Code) Kirtan Biswal ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Ms. Baisakhi Mohanty, Amicus Curiae For the Respondent : Mr. S. Panigrahi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 14.07.2026 : Date of Judgment: 30.07.2026 S.S. Mishra, J. The present Criminal Appeal is preferred by the appellant assailing the judgment of conviction and order of sentence dated 03.09.2005 passed by the learned Additional Sessions Judge, Kamakhyanagar in Criminal Trial (Sessions) No. 19/2004 [Criminal Trial (Sessions) No.122/2004] convicting him under Section 323 IPC and sentenced to undergo S.I. for six months. 2. None appeared for the appellant despite repeated calls. Therefore, this Court requested Ms. Baishakhi Mohanty, learned Counsel, who was present in Court, to assist the Court in the capacity of Amicus Curiae and she has readily accepted the same and after obtaining the entire record, assisted the Court very effectively. 3. Heard Ms. Baisakhi Mohanty, learned Amicus Curiae for the appellant and Mr. S. Panigrahi, learned Additional Standing Counsel for the State. 4. The narrative of prosecution report in the present case is that on 04.06.2003 at about 7.00 A.M. the informant Smt. Atara Biswal was in her house and her husband Laxmidhar Biswal went to the nearby tube well to fetch water. After a little while, the informant heard sound of assault and hearing such sound, she came out from her house and saw near the village tube well her husband is lying on the ground and the accused persons jointly assaulting him and her husband was crying there saying" Marigali, Marigali". Out of fear, she did not go to rescue her husband and her sister-in-law (Jaa) Ahalya Biswal suggested her to go to village and informed the villagers. Accordingly, the informant rushed to the village and inform the matter to one Laxmidhar Sahu and thereafter to the Sarpanch of the village and then she came back to her house in the motor cycle of Sarpanch and found her husband was lying in their verandah near the hearth. She also found bleeding injury on the head, right hand and both the legs of her husband and a front tooth has been broken. It is further alleged that because the son of the informant namely Balabhadra Biswal was in love with the daughter of accused Anadi Biswal, the accused persons assaulted the victim in order to kill him for that reason. Basing on such information, police registered the case and after investigation, charge sheet was submitted under sections 342/307/34 IPC. 5. To establish the charges, the prosecution examined eleven witnesses and exhibited as many as six documents. The accused- appellant, having taken a stance of complete denial, claimed trial and accordingly he was put to trial. 6. After analysing the evidence on record, the learned trial court arrived at the following conclusion:- “ 21. Now it is to be decided whether the fact established by the prosecution makes out the offence of section 307 of the I.P.C. or not and if not what other offence it makes out. The charge was framed U/s. 307/34 of the I.P.C. against all the accused persons. To bring home the charge, the essentials of sec.307 I.P.C. must be proved. The essentials of sec. 307 of I.P.C. have been propounded in the case of Sagar Nayak Vrs. State, reported in (1994) 70 O.C.R. 515, wherein it has been held that : “Sec- 307- Offence under Essence of -Held - The essence of an offence U/s.307 I.P.C. consists of intention or knowledge of causing injury which it could have been allowed to be completed, would have resulted in death and would have been offence of murder - where an injury is inflicted which would have caused death had not some other supervening circumstance beyond the control or volition of the accused intervened, the offence of sec. 307 I.P.C. would be committed." Again in the case of Raghunath Sahu vrs. Sankar Behera, reported in (1995), 8 OCR 456 in para-3, it has been observed that:- “Sec. 307 I.P.C Applicability The essence of an offence of attempt to murder consists of the fact that the act committed if went unrestricted, would have resulted in the offence being committed but could not be achieved because of certain other supervening actions or circumstances not within the control of the assailant. What is important to find out is the intention of the assailant, and the accompanying actions in execution of the intention. If it is found that he did not intend to complete the act of commission of offence and miday left it unfinished on his own, the offence of attempt to commit that act is not committed." In the present case, so far the allegations made in F.I.R. Ext.4 and evidence of P.Ws.1,2,3 and 7 are concerned, they have nowhere stated that any supervening circumstances which was beyond the control of accused persons prevented them to complete the commission of the offence of murder. Rather P.W.7 deposed that even though he called one Mahab who was there to give him water, but he did not come to him but went away. In view of the above decisions and the evidence of prosecution witnesses, it is concluded that the prosecution failed to establish the essence of the offence U/s. 307/34 of I.P.C. But as the assault by means of lathi causing' injury on the head of P.W.7 has been established, it is makes out a case U/s.323 I.P.C. Though the doctor P.W.8 deposed that the injury No.1 is grievous injury but neither X-ray plate nor the C.T. scan report has been proved properly. The doctor does not say that only injury No.1 was dangerous to human life in ordinary course of nature. 22. From the F.I.R. Ext. 4 though it is found the informant has alleged all the accused persons were assaulting the victim, but the victim (P.W.7) and the informant (P.W.2) and P.W.3 deposed in court that only accused Kirtan Biswal was assaulting by means of lathi. Though P.W.7 deposed that while accused Kirtan Biswal was assaulting other accused persons were telling him to kill. But he did not say that after the other two accused persons told him to kill, Kirtan further assaulted the victim. In order to bring home the charge, U/s.34 of the I.P.C. and to convict the other accused persons, it must be proved that all the accused persons have taken part in commission of crime and there was pre-concert of mind among the accused persons for the commission of the offence. As there is no such evidence in record the accused Anadi Biswal and Sukadev Biswal cannot be roped with the crime by mischief of Sec.34 I.P.C. and accordingly, the accused persons namely Anadi Biswal and Sukadev Biswal are found not guilty U/s. 323 of I.P.C. 23. The charge was framed U/s.307/34 Ι.Ρ.C. but no specific charge was framed U/s.323 of 1.P.C. But in view of sec.222 of Cr.P.C. where charge has been framed under larger offence and the said offence failed, the accused can be convicted under the lesser offence even if there is no specific charge, if proved by prosecution. 24. In view of discussion in the fore-going paraghaphs, as the prosecution failed to establish the offence U/s.342/307/34 of I.P.C., all the accused persons are found not guilty thereunder and acquitted from the above charges. But the prosecution by its clear cogent and convincing evidence could establish the offence U/s.323 1.P.C. only against the accused Kirtan Biswal. He is found guilty and convicted thereunder. The other two accused persons are being acquitted they be discharged from their bail bonds and set at liberty forthwith.” 7. Although the appellant stood charged for the offence punishable under Sections 342/307/34 of IPC, but the learned trial Court relying upon the evidence of the prosecution, arrived at a conclusion that the appellant is not guilty of offence punishable under Sections 342/307/34 of IPC. However, the appellant has been convicted under Section 323 of IPC and was sentenced to undergo S.I. for six months. 8. The incident relates back to the year 2003 and the trial went on for more than two years, which only ended on 03.09.2005 and the appeal had been pending since 2005. However, the learned trial Court on in- depth analysis of the evidence brought on record has found the appellant guilty of the offence, as mentioned above. 9. At this stage, Ms. Baishakhi Mohanty, learned Amicus Curiae for the appellant has strenuously argued the case on merit and taken me to the evidence on record. After arguing for some time, she 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, she would rather confine her argument to the quantum of sentence rather than arguing the appeal questioning the conviction. She submitted that the incident pertains to the year 2003. The appellant has undergone the rigors of trial for more than two years. Thereafter, the appeal was preferred in the year 2005. The appeal has been prolonging to be heard for more than 20 years. The appellant, who was in his early thirties then, is now is aged about fifty-two years and therefore, sending him to custody for fulfilling his remaining sentence at this belated stage would serve no purpose. The learned counsel further submitted that the appellant has already incarcerated for a period of about ten days and he has no criminal antecedents and no other case of a similar nature or otherwise is stated to be pending against him. Over the years, he has led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating him after such a long delay, it is argued, would serve little penological purpose and may in fact be counter- productive, casting a needless stigma not only upon him but also upon his family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, in the fitness of situation, the appellant may be extended the benefit of the Probation of Offenders Act read with Section 360 of Cr.P.C. 10. While analyzing the evidence on record, this Court find no reason to disagree with the findings recorded by the learned trial court, hence this Court is reluctant to give indulgence to the convict-appellant in so far as recording of conviction of the appellant on the charge under Section 323 of IPC is concerned. 11. The record reveals that the incident relates back to the year 2003 and at that point of time the appellant was in his early thirties. He has been convicted by the impugned judgment and order dated 03.09.2005. The present appeal is pending since 2005 and at present the appellant is in his early fifties. Much water has been flown under the bridge by now. Therefore, this is a fit case to be 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 1 2025 INSC 540 to apply the provisions of Probation of 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 Ms. Mohanty, learned Amicus Curiae for the appellant for extending the benefit of the P.O. Act deserves merit to be considered. 12. 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 the benefit contemplated under Section 4 of the Probation of Offenders Act. 13. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned, is turned down. But instead of sentencing 2 2012 (Supp-II) OLR 469 3 2007 (Supp.II) OLR 250 the appellant to suffer imprisonment, this Court directs the appellant 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 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. 14. Accordingly, the Criminal Appeal is partly allowed. 15. This Court records the appreciation for the effective and meaningful assistance rendered by Ms. Baishakhi Mohanty, learned Amicus Curiae. She is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 30th July, 2026/Ashok MOHAPATRA