Orissa High Court
Ampili Anand Rao vs State Of Orissa on 31 July, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.21 of 2007
(In the matter of an application under Section 374 of the Criminal
Procedure Code, 1973)
Ampili Anand Rao ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Mr. Tukuna Kumar Mishra, Advocate
For the Respondent : Mr. Ashok Kumar Apat, AGA
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 24.07.2025 : Date of Judgment: 31.07.2025
S.S. Mishra, J. The sole appellant in the present Criminal Appeal has
assailed the judgment of conviction and the order of sentence dated
09.11.2006 passed by the learned Sessions Judge-cum-Special Judge,
Koraput at Jeypore in Criminal Trial No.67 of 2003, whereby the
appellant has been found guilty of the offence punishable under Sections
341/323/506/34 of the IPC. However, the appellant has been acquitted of
the offence under Section 3(1)(x) of the SC & ST (PoA) Act.
2. The appellant has been sentenced to undergo R.I. for six months
and to pay fine of Rs.3,000/- (Rupees three thousand), in default, to
undergo further R.I. for three months for the offence punishable under
Section 506/34 of the IPC and further sentence of three months and to
pay fine of Rs.1,000/- (Rupees one thousand), in default, to undergo R.I.
for one month for the offence punishable under Section 323/34 of the
IPC and to pay fine of Rs.500/- (Rupees five hundred), in default, to
undergo S.I. for seven days for the offence under Section 341/34 of the
IPC.
3. Heard Mr. T.K. Mishra, learned counsel appearing for the appellant
and Mr. Ashok Kumar Apat, learned Additional Government Advocate
appearing for the Respondent-State.
4. The prosecution case in nutshell is that on 15.04.2002 at about 12
noon, when Ghasi Harijan, P.W.1 was returning to his house in the
village Jamunda from his land, the appellant-accused and his brother
obstructed him on his way to home. Thereafter, the accused dealt a
thenga blow on his left hand alleging that, he was taking the support of
Guru Dombo. While the appellant was dealing another blow aiming at
the head of Ghasi Harijan, he raised his hand and caught hold of the
thenga, but the other accused caught hold of his neck and dealt fist blows
for which he fell down on the ground and became senseless. Basing on
this fact, the F.I.R. was lodged in Boriguma P.S. Case No.46 of 2002
arising out of C.T. Case No.67 of 2003 corresponding to G.R. Case
No.290 of 2002.
5. In order to bring home the charges, the prosecution examined as
many as six witnesses. P.W.1 is the injured in the present case whereas
P.Ws.2 and 3 are independent witnesses, those who have not supported
the prosecution case and turned hostile. P.W.5 is the son of P.W.1 and he
is also an injured witness and informant in this case. P.Ws.4 and 6 are
the Investigating Officers.
6. Learned trial Court, by relying heavily on the testimonies of the
injured witnesses, found the appellant guilty of the offence punishable
under Sections 341/323/506 of the IPC, however, disbelieving the
prosecution witnesses, has acquitted the appellant of the offence under
Section 294 of the IPC as well as the offence under Section 3(1)(x) of
the SC & ST (PoA) Act.
7. Learned trial Court, on analyzing the evidence on record by the
prosecution, has arrived at the following conclusion, which reads thus:
"(11) So on appraisal of the evidence the following facts has
categorically emerged:
i. That the accused along with his brother does
neither belong to Scheduled Caste nor Scheduled
Tribe and P.Ws. 1 and 5 belong to Scheduled
Caste.
ii. That the accused and his brother obstructed and
assaulted the informant while he was returning to
his home. That the accused persons abused him
saying "DOMBO GIAPO GURU DOMBO RO
SUPPORT NOUCHU KI"
iii. That the accused and his brother also restrained
P.W.5 while he was going to the police station on
the next day and they also abused him and
threatened him saying "DOMBO SOLA THANA
KU GOLE HANI DEBU"
Now it is to be seen whether the aforesaid act of the
accused persons is sufficient enough to establish the charges
against the present accused.
(12) Needless to say P.W.1 has very categorically deposed
that he was restrained and assaulted by both the accused
persons. But there is nothing on the record suggesting that
while he was going in any direction he was obstructed by the
accused persons and the accused persons did not allow him to
proceed in that direction by their act or omission. Assaulting to
a person who was proceeding to any direction does not attract
the element of restrained though in every assault to a person
the movement of the person is restricted. But in this case it has
been categorically emerged that both the accused persons
restrained P.W.5 while he was going to police station to report
the matter and did not allow him to go there though he had
right to go. Furthermore both the accused persons assaulting
the P.W.1 has since been proved, there is nothing on the record
that such assault on P.W.1 was intentional or accidental. So
from the aforesaid it can very well be said that the present
accused and his brother intending to assault P.W.1 assaulted
him and as such thereby voluntarily caused hurt to him in
furtherance of their common intention. So also when both the
accused persons restrained the movement of P.W.5 by armed
with tangi it can very well be said that both of them sharing the
common intention restrained P.W.5 in proceeding in a
direction in which he was entitled to go. So also there is
evidence that in this case they threatened P.W.5 to kill if he
would go and report the matter to police station being armed
with Tangi for which P.W.5 returned back. From the aforesaid
it would go to show that P.W.5 was alarmed by such
intimidation of accused persons as he returned to his home
thereafter and reported the matter some days thereafter. From
the aforesaid I have no manner of doubt that the acts of the
present accused attracts the ingredients of Section 323/341/506
read with Section 34 I.P.C.
So far as the charge under section 294 I.P.C. is
concerned needless to say that considering the uttering made
by both the accused persons to accused Ghasi Harijan, namely,
'DOMBO GIAPO' and P.W.5 Bhagaban Harijan as 'MAGIYA
DOMBO SOLA' in the facts and situation of the case and also
the area in which they live it can hardly be said that the same is
an obscene utterance which caused annoyance to others. So I
am of the opinion that prosecution in this case has not proved
beyond reasonable doubt the charge under Section 294 I.P.C.
Now coming to the charge under Section 3(1)(x) of the
S.C. and S.T. (P.A.) Act it has since been proved that the
accused does not belong to Scheduled Caste or Scheduled
Tribe and P.Ws. 1 and 5 belong to Scheduled Caste but there is
nothing on the record disclosing the fact that the accused had
humiliated or intimidated P.W.1 with an intention to insult.
However, the present accused along with his brother had
intimidated P.W.5 while he was going to the police station has
since been proved in this case. The same was also in a place in
the view of public inasmuch as from P.W.5 it has been
elucidated in his cross-examination that while such
intimidation was given some coward boys were present there.
But intentionally intimidating a Scheduled Caste person by self
is not sufficient enough to prove a charge under Section 3(1)(x)
of the S.C. and S.T. (P.A.) Act. Besides that the prosecution has
to prove that the same was with an intention to humiliate of
course intention being a state of mind the same can be judged
from the attending circumstances. In this case admittedly the
purpose of accused person was to intimidate P.W.5 not to
report the matter to police so the same in no circumstance can
be said to have been made to be lower the P.W.5 in the eye of
public. Hence, it can very well be said that a charge under
Section 3(1)(x) of the S.C. and S.T. (P.A.) Act is not made out."
8. The appellant, being aggrieved by the aforementioned judgment of
conviction and order of sentence, preferred the present Criminal Appeal.
9. At the outset, Mr. T.K. Mishra, learned counsel for the appellant
has stated at the Bar that since the appellant has already been acquitted
by the learned trial Court of the offence under Section 3(1)(x) of the S.C.
& S.T. (PoA) Act and Section 294/34 of the IPC and no appeal has been
preferred by the State, there is no legal impediment in extending the
benefit of Probation of Offenders Act to the appellant. He has submitted
that he would confine his argument limited to the question of quantum of
sentence and regarding extension of the benefit of the Probation of
Offenders Act. He has relied upon the judgment of the Hon'ble Supreme
Court in the case of Hari Kishan and another vs. Sukhbir Singh and
others, reported in 1988 (4) SCC 551. In the said judgment, the Hon'ble
Supreme Court has held as under:
"The question next to be considered is whether the accused
are entitled to the benefit of probation of good conduct ? We
gave our anxious consideration to the contentions urged by
counsel. We are of opinion that the High Court has not
committed any error in this regard also. Many offenders are
not dangerous criminals but are weak characters or who
have surrendered to temptation or provocation. In placing
such type of offenders, on probation, the Court encourages
their own sense of responsibility for their future and protect
them from the stigma and possible contamination of prison.
In this case, the High Court has observed that there was no
previous history of enmity between the parties and the
occurrence was an outcome of a sudden flare up. These are
not shown to be incorrect. We have already said that the
accused had no intention to commit murder of any person.
Therefore, the extension of benefit of the beneficial
legislation applicable to first offenders cannot be said to be
inappropriate."
Apart from that, Mr. Mishra, learned counsel for the appellant has also
relied upon the judgment of the Hon'ble Supreme Court in the case of
Ishar Das vs. State of Punjab, reported in 1973 (2) SCC 65, wherein the
Hon'ble Supreme Court has held thus:
"The operation of the provisions of Probation of Offenders
Act is not excluded even in the cases accused is found guilty
of the offence under the Special Statute like Prevention of
Food Adulteration Act unless specifically excluded by the
statute."
10. Mr. Mishra, learned counsel for the appellant has also relied upon
the recent judgment of the Hon'ble Supreme Court in the case of
Chellammal and another vs. State represented by the Inspector of
Police, reported in 2025 INSC 540, wherein the Hon'ble Supreme Court
has held thus:
"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. "
11. Mr. Apat, learned Additional Government Advocate appearing for
the State has not seriously objected to the submissions made by Mr.
Mishra, learned counsel for the appellant on the ground that grant of
benefit of Probation of Offenders Act being the discretionary power
vested with the Court and the law cited in the Court, is not disputed.
Hence, it is left open to the Court to exercise its jurisdiction.
12. In the present case, the incident happened on 15.04.2002. At that
point of time, the appellant was 32 years age. The appeal is pending
since 2007. At present, the appellant would be about 55 years of age.
The appellant has a clean antecedent. He has already settled in his life
and well known in the society. Therefore, this is a fit case where the
benefit of Probation of Offenders Act could be extended to the appellant.
13. Besides the Judgments quoted above, regard being had to the age
of the appellant, his societal position, clean antecedents and the fact that
the incident had taken place in the year 2002, I am of the considered
view that the appellant is entitled to the benefit of the Probation of
Offenders Act read with Section 360 of Cr.P.C. Additionally, the case of
the appellant is also covered by ratio of the judgment of this Court in the
case of Pathani Parida & another vs. Abhaya Kumar
Jagdevmohapatra1.
14. 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 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.
15. With the above observation, the CRA is accordingly disposed of.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated 31st July, 2025/ Subhasis Mohanty
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 01-Aug-2025 10:55:49
