Orissa High Court

973) vs State Of Orissa on 31 July, 2025

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                           CRLA No.83 of 2005

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



Siri @ Sridhar Sahu               .......                         Appellant

                                  -Versus-

State of Orissa                   .......                        Respondent

For the Appellant : Mr. Anshuman Roy, Advocate

For the Respondent : Mrs. Sarita Maharana, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 22.07.2025 : Date of Judgment: 31.07.2025

S.S. Mishra, J. The sole appellant has filed the present Criminal Appeal

under sub-section (2) of Section 374 of the Cr. P.C. challenging the

Judgment of conviction and order of sentence dated 28.01.2005 passed

by the learned Sessions-cum-Special Judge, Dhenkanal-Angul,

Dhenkanal in C.T. 13/S.T. (Special) Case No.27/2002, whereby the appellant has been convicted for the offence punishable under Section

379 of the IPC and sentenced him to undergo one year R.I. and to pay

fine of Rs.1,000/- (Rupees one thousand), in default of payment of fine,

to further undergo R.I. for two months.

2. Four accused persons were tried for the offence punishable under

Section 394 of the IPC and Section 3 (2)(v) of the SC & ST (PoA) Act.

All the accused persons including the present appellant have been

acquitted by the learned trial Court for the said offence. The prosecution

has not assailed the judgment of acquittal.

3. The prosecution story in terse and brief is that on 14.06.2001, the

informant of the present case Dillip Kumar Dehury of village

Kandabindha gave Rs.2,000/- (Rupees two thousand) to his brother

Pradip Kumar Dehury to pay the same to Narendra Rout for purchasing

mutton. When Pradip Kumar Dehury was going to pay the money, on the

way at the end of the village, accused Pateita Sahu (acquitted) and other

three attacked him and took away cash of Rs.2,150/-. This occurrence

took place at about 12 noon. A report was lodged by Dillip Kumar

Dehury in Jhargadia Out Post. The A.S.I. of Jhargadia Out Post then

treated the same as F.I.R. and took up the investigation.

4. After the investigation, the charge sheet was filed in the present

case and the accused persons had taken a stand for denial. Accordingly,

they were put to trial.

5. The prosecution, in order to establish its case, examined six

witnesses. P.W.2 was the informant of the case. P.W.1 was the injured.

P.W.3 was a companion of P.W.1, who was present at the time of

occurrence. P.W.6 was the doctor, who examined P.W.1. P.Ws. 4 and 5

are the Investigating Officers in this case.

6. Learned trial Court, after threadbare analysis of the evidence,

arrived at the following conclusion:

"8. Coming to the other offence U/s. 394 I.P.C. it is seen that the only witness to the occurrence is P.W.1, the victim himself. He has stated on oath that he is 'Keuta' by caste and belongs to the Scheduled Caste category. Dillip Kumar Dehury is his elder brother. During Raja Festival about three years back, Dillip Dehury gave him Rs.2,000/- to pay to one Narendra Rout and another Rs.150/- to purchase mutton. Sadananda Rout has also accompanied with this witness. While they were proceeding on a motorcycle, the four accused persons detained them at the end of the village. All the four accused persons abused him by saying "SALA KEUTA". Accused Siri and Patei were holding Bhujalis.

Accused Babi was having one Bamboo (Dhada). Accused Babi dealt a blow with that bamboo (Dhada) on his left shoulder. Accused Patei give a blow by means of Bhujali on his back but as he moved so it slightly struck on his left arm. Accused Siri Sahu inserted his hand inside his wearing baniyan pocket and snatched away the entire money and tore his baniyan. The occurrence took place by noon. He narrated the entire incident to his elder brother. Thereafter, he went to the Police Out Post and lodged a report. Police seized his wearing baniyan. He was medically examined. In the cross-examination, he has stated that houses of Manoj Dehury, Nirmal Rout and Anartha Dehury situated near his house. He denied the suggestion that he has not stated that the Bhujali blow of Patei struck on his arm. Accused Babi dealt blow on his shoulder and waist. He sustained swelling on his left shoulder and also on his waist. Around 3 P.M. of that day, he was examined by the police. P.W.3, Sadananda Rout the other person accompanying the injured has not supported the prosecution. He has stated that on the Raja day about three years back, around 11.30 A.M., while he was going on a motorcycle with P.W.1, they fell down and they came back. This witness been treated as a hostile witness by the prosecution and has been confronted with the statement made by him U/s. 161 Cr. P.C.

13. In course of hearing of the arguments of the case, the learned P.P. has very emphatically pointed out that though there is no specific charge U/s. 3 (1)(x) of the Special Act as a charge has been framed U/s. 3 (2) (v) of the Special Act, conviction can be recorded for the lesser charge. U/s. 3 (1)

(x) is a general section which provides punishment for insult or abused of a Scheduled Caste or Scheduled Tribe person in public view with an intention him to humiliate him.

Whereas Section 3(2) (v) is an enabling section which provides for a higher punishment for any person found guilty of any offence punishable with imprisonment for ten years or more under the I.P.C. if such offence was committed on the ground that the victim is a member of the Scheduled Caste or

Scheduled Tribe category. So, the offence provided U/s. 3(1)

(x) of the Special Act is of a different genre then the offence U/s. 3 (2) (v) of that Act. Hence, a conviction cannot be recorded U/s. 3(1)(x) of the I.P.C. in absence of a specific charge.

14. Thus, on a conspectus of the entire evidence, discussion of the submission made by the learned counsels for both the sides, this Court comes to conclusion that the prosecution has failed to prove its case U/s. 394 I.P.C. and Section 3 (2)

(v) of the Special Act against all the accused persons and the accused persons are, therefore, held not guilty of those offences. However, the prosecution has established a case U/s. 379 I.P.C. against the accused Siri Sahu. It is held that accused Siri Sahu is guilty committing theft of Rs.2,150/- from the pocket of Pradip Kumar Dehury on the 14th June, 2001 at village Kandabindha and he is liable for offence U/s. 379 I.P.C. He is, accordingly, convicted there under. The rest of the accused persons are acquitted of the charges. Cancelled their bail bonds. Since, this is a case under the Special Act and the convict is a mature man, who is well aware of the outcome of his activities the provisions of this Probation of Offenders Act is not appropriate for this case."

7. The sole appellant in the present case, being aggrieved by the

judgment of conviction for the offence punishable under Section 379 of

the IPC and the sentence on that count, has assailed the same in the

present Criminal Appeal.

8. At the outset, Mr. Anshuman Roy, learned counsel appearing for

the appellant submitted that the appellant may be extended the benefit of

the Probation of Offenders Act regard being had to his age and clean

antecedent. He has relied upon the judgment of the Hon'ble Supreme

Court in the case of Gulzar vs. State of M.P., reported in (2007) 1 SCC

619. The Hon'ble Court, while dealing with conviction of the charge

under Section 379 of the IPC, has held that Probation of Offenders

benefit could be extended to the convict, it held thus:

"14. Section 3 of the PO Act refers particularly to Section 379 IPC. Same reads as follows:

"3. Power of court to release certain offenders after admonition.- When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Penal Code, 1860, or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Penal Code, 1860 or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4 release him after due admonition.

Explanation.- For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or Section 4."

He has relied upon the judgment of the Hon'ble Supreme Court in

the case of Som Dutt and others vs. State of Himachal Pradesh,

reported in (2022) 6 Supreme Court Cases 722. The Hon'ble Supreme

Court has held thus:

"6. Sections 3 and 4 of the Probation of Offenders Act empower the courts to release the offenders on probation of good conduct in the cases and circumstances mentioned therein. Similarly, Sections 360 and 361 Cr.PC also empower the courts to release the offenders on probation of good conduct in the cases and circumstances mentioned therein. Hence, having regard to sentence imposed by the courts below on the appellants for the offence under Section 379 read with Section 34 IPC, and having regard to the fact that there are no criminal antecedents against the appellants, the Court is inclined to give them the benefit of releasing them on probation of good conduct. In that view of the matter, while maintaining the conviction and sentence imposed on the appellants, it is directed that the appellants shall be released on probation of good conduct, on each of the appellants furnishing a personal bond of Rs.25,000 with surety of the like amount, and on further furnishing an undertaking to keep the peace and good behavior for a period of three years, to the satisfaction of the trial court concerned. It is further directed that if the appellants failed to comply with the said directions or commit breach of the undertaking given by them, they shall be called upon to undergo the sentence imposed by the trial court."

On the strength of the aforementioned two judgments of the

Hon'ble Supreme Court cited by him, Mr. Roy, learned counsel submits

that this is a case where the appellant has been acquitted of the charge

under Section 394 of the IPC. However, he has been convicted for the

offence punishable under Section 379 of the IPC finding him guilty of

committing theft of Rs.2,150/- from the pocket of Pradip Kumar Dehury,

P.W.1. He has also read out the evidence of all the witnesses including

P.W.1 to create a doubt regarding the very nature of the allegation made

against the appellant. At the same time, he submitted that the benefit of

the Probation of Offenders Act may be granted to his client as has been

extended to the appellants in the cases cited above.

9. In that regard, Mr. Roy, learned counsel has also relied upon the

judgment of the Hon'ble Supreme Court in the case of Ramesh vs. State

of Rajasthan1. The Hon'ble Supreme Court has held thus:

"17. The present appellant is about 70 years old. His conviction under the more serious offence under Section 307 IPC has been already set aside by the High Court and he has been convicted only under Sections 326, 325, 452 and 323 IPC and the maximum period of punishment awarded by the High Court is six months imprisonment with a fine of Rs. 5000/- and has already undergone more than 4 months of imprisonment as of now.

18. Under the circumstances, we are inclined to invoke the jurisdiction under Article 142 of the Constitution of India and grant the benefit of the Probation Act to the present appellant also, which had been granted to the other accused belonging to the other

2025 SCC OnLine SC 50

conflicting group in the cross case, considering the fact that a settlement was reached between the parties and neither any criminal antecedents nor any adverse material against the conduct of the appellant, have been brought to the notice of this Court."

10. I have taken into consideration the submission made by Mr. Roy,

learned counsel for the appellant and the learned counsel for the State. I

am of the view that the sentence imposed by the learned trial Court

should sustain. However, keeping in view the age of the appellant, his

clean antecedent and the fact that the incident had taken place in the year

2001, I am inclined to extend the benefit of Probation of Offenders Act

to the appellant.

11. 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

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 one year on his executing bond of Rs.5,000/- (Rupees Five