Orissa High Court

Damodar Biswal And Others vs State Of Orissa on 19 August, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                           CRA No.26 of 2000

(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)


Damodar Biswal and others          .......                   Appellants

                                 -Versus-

State of Orissa                        .......               Respondent

For the Appellants : Mr. Sudipto Panda, Amicus Curiae

For the Respondent : Mr. Raj Bhusan Dash, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 14.08.2025 :: Date of Judgment: 19.08.2025

S.S. Mishra, J. The seven appellants consolidately preferred this

appeal assailing the judgment and order dated 07.01.2000 passed by the

learned Special Judge, Balasore in Special Case No.46 of 1996, whereby

the learned trial Court found the appellants guilty of the offences under

Sections 147/323/506/427/34 of I.P.C. read with Section 3(1)(xi) of the SC & ST (PoA) Act and sentenced them to undergo R.I. for six months

on each count. The sentences are directed to run concurrently.

2. The present appeal is pending since 25.01.2000. When the matter

was taken up for hearing, Mr. Sudipto Panda, learned counsel submitted

that this is an old file being handled by his senior Mr. Brahmananda

Panda, who is no more. He also submitted that he does not have the

power to appear in the matter. Therefore, this Court requested Mr.

Panda, learned counsel to assist the Court as Amicus Curiae. He has

readily accepted the same and after obtaining entire record assisted the

Court very effectively. This Court records appreciation for the

meaningful assistance rendered by Mr. Panda, learned Amicus Curiae.

3. Heard Mr. Sudipto Panda, learned Amicus Curiae for the

appellants and Mr. Raj Bhusan Dash, learned Additional Standing

Counsel for the State.

4. During pendency of the present appeal, the appellant No.5-Babuli

Nayak has expired. Therefore, the present appeal qua him stood abated.

The present appeal is confined only appellant Nos.1, 2, 3, 4, 6 and 7.

5. The prosecution case in terse and brief is that the informant-

Upendra Mukhi (P.W.2) a member of Scheduled Caste (HADI by caste)

on 29.06.1996 at 6.00 P.M. while thatching his house, the accused

persons having formed an unlawful assembly and armed with deadly

weapons such as lathi, knife and bhujali came to his house and did not

allow him to continue with the thatching. They threatened him to kill if

he would continue with the work. The informant, out of fear got down

from the roof and, thereafter, the accused persons entered inside his

house, dragged his daughter-in-law and son to outside and torn their

wearing apparels, inflicted injuries on their persons by means of knife.

They also damaged his household articles and while decamping, the

accused persons threatened him and his family members to kill.

6. The matter was reported at the police station and on the basis of

the aforesaid allegations, the police investigated the case and filed the

charge-sheet for the offences punishable under Sections

147/323/506/427/34 of I.P.C. read with Section 3(1)(xi) of the SC & ST

(PoA) Act.

7. The prosecution in order to prove its case examined as many as six

witnesses, whereas the defence examined one witness and took a stance

of complete denial of the charges and claimed trial. Out of whom, P.W.1,

was the doctor, who examined the injured, P.W.2 was the informant and

eye witness to the occurrence, P.Ws.3, 4 and 5 are the victims and eye

witnesses to the occurrence and P.W.6 was the Investigating Officer of

the present case.

8. Mr. Sudipto Panda, learned Amicus Curiae for the appellants

submitted that relating to an incident happened on 29.06.1996 an F.I.R

was registered on the same day for the offences punishable under

Sections 147/323/506/427/34 of I.P.C. read with Section 3(1)(xi) of the

SC & ST (PoA) Act. After investigation, charge-sheet in the present case

has been filed on 13.12.1996. He submitted that the Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities) Rule, 1995 has been

incorporated w.e.f. 31.03.1995 and Rule 7 of 1995 Rules mandates that

every offence committed under the Act shall be investigated by an

officer not below the rank of Deputy Superintendent of Police.

Admittedly, P.W.6, who was working as A.S.I. of Police, Khaira has

investigated the case. As per the evidence of P.W.6 although he had

investigated the entire offence but the charge-sheet has been filed by one

Manas Ranjan Tripathy, S.I. of Police, Khaira Police Station. Therefore,

the Investigating Officer and the Officer filed the charge-sheet being not

the officers of the rank of Deputy Superintendent of Police, the entire

investigation is vitiated. Hence, he submitted that the offence under

Section 3(1)(xi) of the SC & ST (PoA) Act cannot sustain in the eyes of

law.

In view of the above, the appellants are acquitted of the charges

under Section 3(1)(xi) of the SC & ST (PoA) Act.

9. In so far as the remaining offences under Sections

147/323/506/427 of I.P.C. are concerned, Mr. Panda, submitted that the

appellants had prayed for treating them under the Probation of Offenders

Act. However, the learned trial Court rejected the same on the ground

that since the appellants are convicted under section 3(1)(xi) of the SC &

ST (PoA) Act, probation cannot be granted. The learned trial Court while

rejecting the prayer of the appellants for treating them under probation,

has held as under:-

"Heard on the question of sentence. It is submitted on behalf of the convicts that they are first offenders; so, they may be released and/or the provisions of the Probation of Offenders' Act. Since they have committed the offence U/S 3(xi) of the SC & ST (Prevention of Atrocities Act), I am not inclined to extend the provisions of Probation of Offenders' Act to the convicts. Hence, each of the convict is sentenced to undergo R.I. for 6 (six) months on each count. The sentences are to run concurrently."

Since the appellants are now acquitted under Section 3(1)(xi) of

the SC & ST (PoA) Act, he reiterated his prayer for grant of the benefit

of the Probation Of Offenders Act to the appellants.

10. Mr. Panda, learned Amicus Curiae for the appellants further

submitted that he would confine his case limited to the question of

sentence, because the incident relates back to the year 1996 and at that

point of time, the appellants were in their forties, hence, at present all of

them are in their late sixties or seventies. The record also reveals that the

appellants have already undergone more than one month incarceration.

Therefore, sending them to custody to serve out remaining period of

sentence at this belated stage would be harsh and would have cascading

effect on the entire family.

Passing of more than three decades in between has reformed all

the appellants, they have been well integrated in the society and all of

them are leading a respectable family life. Hence, they are entitled to be

treated under the Probation of the Offenders' Act.

11. Regard being had to the age of the appellants, their societal

position, clean antecedents and the fact that the incident had taken place

in the year 1996, I am of the considered view that all these appellants are

entitled to the benefit of the Probation of Offenders Act and Section 360

of Cr.P.C. Additionally, the case of the appellants are also covered by

ratio of the judgment of this Court in the case of Pathani Parida &

another vs. Abhaya Kumar Jagdevmohapatra1.

12. 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

2012 (Supp-II) OLR 469

the appellants to suffer imprisonment, this Court directs the appellants to

be released under Section 4 of the Probation of Offenders Act for a

period of six months on their executing bond of Rs.5,000/- (Rupees Five

Thousand) each within one month with one surety each for the like

amount to appear and receive the sentence when called upon during such

period and in the meantime, the appellants shall keep peace and good

behavior and they shall remain under the supervision of the concerned

Probation Officer during the aforementioned period of six months.

13. With the above observation, the CRA is accordingly disposed of.

14. This Court acknowledges the effective and meaningful assistance

rendered by Mr. Sudipto Panda, 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 19th August, 2025/ Swarna Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa