THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.399 of 2006 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Tukuna Behera ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Satya Narayan Mishra(4), Amicus Curiae For the Respondent : Mr. A.K. Apat, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 09.04.2026 :: Date of Judgment: 16.04.2026 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 23.08.2006 passed by the learned Sessions Judge, Puri in Sessions Trial No. 90 of 2005, arising out of G.R. Case No. 1427 of 2004, whereby the appellant was convicted under Sections 354 and 451 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and sentenced to undergo rigorous imprisonment for six months along with fine of Rs.500/- on each count, in default of payment of fine to undergo R.I. for 15 days on each count with the sentences directed to run concurrently. 2. The present appeal has been pending since 2006. When the matter was called for hearing consistently, none appeared for the appellant. Therefore, this Court on 09.04.2026 requested Mr. Satya Narayan Mishra(4), learned counsel, who is present in Court to assist the Court as Amicus Curiae. He has readily accepted the same and after obtaining the entire record assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Mr. Mishra. 3. Heard Mr. Satya Narayan Mishra(4), learned Amicus Curiae for the appellant and Mr. A.K. Apat, learned Additional Government Advocate for the State. Page 3 of 15 4. The prosecution case in brief is that on the night of 27.11.2004, the victim (P.W.1), a minor girl, daughter of informant (P.W.2), was sleeping alone in a room of her house. It is alleged that the appellant stealthily entered into the said room and, taking advantage of darkness, caught hold of her, attempted to rape her and used criminal force with an intention to outrage her modesty. 5. Upon the victim raising alarm, her family members, including her father (P.W.2), rushed to the spot. The appellant attempted to flee but was chased and apprehended near the house. Thereafter, a written report was lodged, leading to registration of the case and subsequent investigation. Upon completion of investigation, charge-sheet was submitted. 6. The defence of the appellant is one of complete denial. It is contended that he had prior acquaintance and alleged love relationship with the victim, which was opposed by her family members. According to the defence, the present case has been falsely foisted due to such opposition. Page 4 of 15 7. In order to bring home the charge, the prosecution examined ten witnesses, including the victim (P.W.1), her father (P.W.2), her brother (P.W.3), independent and seizure witnesses (P.Ws 4, 6 and 8), the Medical Officer (P.W.7), and the Investigating Officer (P.W.10). The accused examined one witness in his defence. 8. The learned trial court, upon a detailed appreciation of the oral and documentary evidence on record, came to the conclusion that the prosecution had been able to establish that the accused had criminally trespassed into the dwelling house of the victim during the night and used criminal force against her with the intent to outrage her modesty. While the court did not find sufficient material to sustain the charge of attempt to commit rape under Section 376 read with Section 511 IPC, it held that the acts proved squarely attracted the offences under Sections 354 and 451 IPC. The trial court further held that since the victim belonged to a Scheduled Caste community and criminal force had been used against her, the offence under Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act was also made out. Accordingly, the accused was convicted under the aforesaid provisions and sentenced to undergo rigorous imprisonment along with fine, with the sentences directed to run concurrently. The relevant portion of the aforesaid judgment is extracted herein below for ready reference:- “15. Therefore, from the aforesaid analysis and discussion of the evidence on record I hold that ample materials are there to establish the fact that the accused had trespassed into the house of P.W.1 on the night of occurrence and had outraged the modesty of P.W.1 and the case of the prosecution has been strengthened by the evidence of D.W.1 in para-4 of his cross-examination. From the available evidence on record there is absolutely no material to come to a conclusion that the accused had attempted to commit rape on P.W.1 because P.W.1 has never breathed a word if the accused had undressed himself and also tried to undress her and tried to rape her. On the other hand the categorical evidence of P.W.1 is that the accused had sat over her body and kissed her and embrassed her. So there can not be a case U/S 376 of the I.P.C. read with Sep. 511 of the I.P.C but there can be a case U/S 354 of the I.P.C against the accused. 16. I, therefore, from the aforesaid analysis of the evidence on record hold that the prosecution though not has been able to establish its case against the accused U/Ss.450 and 376 read with Sec. 511 of the I.P.C but has been able to make out a case against the accused U/Ss.451 and 354 of the I.P.C and since-P.W.1 belongs to a member of scheduled caste community and when the accused used criminal force on. her to outrage her modesty the prosecution has also established its case against the accused U/s 3(1)(xi) of the S.C and S.T(P.A) Act. Accordingly, I hold the accused guilty U/Ss 451 and 354 of the I.P.C and also: U/S. 3(1)(xi) of the S.C and S.T(P.A) Act, 1989 and convict him thereunder.” 9. I have carefully considered the submissions advanced by the learned Amicus Curiae for the appellant and the learned counsel for the State and have gone through the records of the case, including the depositions of the witnesses, the medical evidence and the documents produced. 10. Upon careful scrutiny of the evidence, this Court finds that the testimony of the victim (P.W.1) is cogent, credible, and inspires confidence. She has consistently stated that the appellant entered her room at night and used criminal force by sitting over her body and kissing her against her will. Her evidence is corroborated by the immediate conduct of raising alarm and the prompt arrival of her family members, who chased and apprehended the appellant. The presence of the appellant at the spot is thus firmly established. 11. The defence plea of prior love relationship is not substantiated by any convincing evidence. This Court finds that the act of the appellant in entering the dwelling house of the victim during the night hours, without her consent or that of her family members, and with the evident intention of committing an offence, squarely attracts the ingredients of house- trespass as contemplated under Section 451 of the Indian Penal Code. The evidence of the victim (P.W.1), duly corroborated by the testimonies of her father and brother (P.Ws. 2 and 3), clearly establishes that the appellant had secretly entered into the room where the victim was sleeping alone. The surrounding circumstances, including the time of occurrence and the conduct of the appellant in attempting to flee upon being discovered, reinforce the inference that such entry was neither innocent nor accidental, but was triggered by a culpable intent. In that view of the matter, this Court finds no infirmity in the finding of the trial court holding the appellant guilty of the offence punishable under Section 451 IPC. 12. Insofar as the offence under Section 354 IPC is concerned, the evidence on record unmistakably demonstrates that the appellant had used criminal force against the victim with the intention of outraging her modesty. The consistent and cogent testimony of the victim reveals that the appellant not only caught hold of her but also sat over her body, kissed her, and forcibly embraced her. Such acts, by their very nature, are inherently violative of the dignity and bodily autonomy of a woman and fall squarely within the mischief sought to be penalized under Section 354 IPC. The absence of any material contradiction in her testimony and the natural conduct exhibited by her in raising alarm lend further assurance to its truthfulness. This Court, therefore, concurs with the conclusion of the trial court that the offence under Section 354 IPC stands proved beyond reasonable doubt. 13. However, with regard to the conviction under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, this Court is unable to sustain the same. It is no doubt established on record that the victim belongs to a Scheduled Caste community. Nonetheless, the essential requirement for attracting the said provision is that the offence must have been committed on the ground that the victim belonged to such caste, or with the intention to humiliate or target her on that basis. In the present case, any evidence is absent, either direct or circumstantial, to indicate that the appellant’s actions were motivated by the caste of the victim. The prosecution has failed to establish the requisite mens rea necessary to bring the act within the ambit of the aforesaid provision. Mere proof of the caste of the victim, in the absence of any nexus between such caste and the commission of the offence, is insufficient to sustain a conviction under the SC/ST (P.A.) Act. It was determined in the case of Masumsha Hasanasha Musalman vs State of Maharashtra, reported in 2000 (3) SCC 557, relevant part of which is extracted herein:- “Section 3(2)(v) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v) of the Act arises. In that view of the matter, we think, both the trial court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial court as well as by the High Court ought to be set aside.” Consequently, the conviction of the appellant under Section 3(1)(xi) of the Act is liable to be set aside. 14. Turning to the question of sentence, it is brought on record that the appellant had remained in custody for a period of 79 days, from 28.11.2004 to 14.02.2005, during the course of investigation and trial. Page 11 of 15 The appellant was about 26 years of age at the time of the incident and there is nothing on record to suggest any prior criminal antecedents. The nature of the offence, though undoubtedly serious, does not involve aggravated sexual assault or extreme brutality. Apt would be to place reliance upon the Judgement of the Hon’ble Supreme Court in Chellammal and Another v. State represented by the Inspector of Police1 wherein the Apex Court 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 1 2025 INSC 540 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.” Having regard to these factors, and keeping in view the reformative object of criminal jurisprudence, this Court is of the considered opinion that this is a fit case where the benefit of the Probation of Offenders Act, 1958 ought to be extended to the appellant. 15. Accordingly, while affirming the conviction of the appellant under Sections 354 and 451 IPC, and setting aside his conviction under Section 3(1)(xi) of the SC/ST (P.A.) Act, this Court directs that the appellant be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958 for a period of six months on his executing bond of Rs.10,000/- (Rupees Ten 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. 16. Accordingly, the Criminal Appeal is partly allowed. Page 15 of 15 17. This Court acknowledges the effective and meaningful assistance rendered by Mr. Satya Narayan Mishra(4), learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 16th of April, 2026/Subhashis Mohanty Designation: Personal Assistant Location: High Court of Orissa, Cuttack. Date: 27-Apr-2026 12:40:20