Orissa High Court
Basanta Kumar Pradhan And Another vs State Of Orissa on 31 July, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.268 of 1991
(In the matter of an application under Section 374 of the Criminal
Procedure Code, 1973)
Basanta Kumar Pradhan and another ....... Appellants
-Versus-
State of Orissa ....... Respondent
For the Appellants : Mr. Debi Prasad Pattnaik, Advocate
For the Respondent : Mr. R.B. Dash, ASC
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 present Criminal Appeal, filed by the appellants
under Section 374 of the Cr. P.C., is directed against the judgment and
order dated 30.09.1991 passed by the learned Additional Sessions Judge,
Kendrapara in S.T Case No.327 of 1990/ 6 of 1991, whereby the learned
trial Court has convicted the accused-appellants for the offences
punishable under Section 380 of the Indian Penal Code, 1860 (herein
after 'IPC' for brevity) and, accordingly, sentenced them to undergo R.I.
for one year each.
2. The prosecution case tersely stated is that, the criminal law was set
in motion on the written report of one, Asok Kumar Pradhan. In the
written report, it was alleged that while the informant and his wife were
sleeping in their house at village Mulagain at about 12:30AM on
1.05.1990, the accused persons (Total 12 number of accused persons out
of which only Serial No.7 and 10 are convicted, who happen to be the
appellants in the instant appeal) entered inside the bedroom of the
informant by uprooting the front door of the house. Two of the accused,
namely, Kirti and Sarat (Accused No. 3 and 9), caught hold of the
informant and one accused, namely, Kishore (Accused No.6) tried to
deal knife blow on the throat of the informant, however, the same hit his
right cheek. It is alleged that at that time the other accused persons were
holding "Tenta" and "Bhala" (types of weapon) etc. Subsequently when
the couple made "hulla" the informant's father and other villager's
rushed in, following which the accused persons left the spot taking away
the boxes containing some gold, clothes and cash of Rs.1000/-.
Consequently, the spot was visited by the Pattamundai Police, search and
seizure was done and subsequently charge-sheet was submitted and the
accused persons were charged under Section 395 of the I.P.C.
3. To bring home the charges against the accused persons, the
prosecution examined as many as 11 witnesses out of which P.W.1 was
the informant, P.W.3 was the father of the informant, P.W.10 is the wife
of the informant, P.W.11 was the Investigating Officer (I.O.), P.W.7 was
a scribe of the F.I.R., P.W.8 was a witness to the seizure, who doesn't
claim to have personal knowledge regarding the occurrence. P.W.9 was a
doctor, who treated the informant on police requisition. P.Ws. No.2, 5
and 6 were the villagers, who rushed inside the bedroom of the informant
on hearing the "hulla" along with the father of the informant. P.W.4
was also a villager, who witnessed the present appellants running away
with two boxes.
4. The learned trial court have meticulously dealt with the evidences
on record, and the submissions made by both the parties and has
concluded that there are no sufficient evidences brought on record to nail
the accused persons guilty of the charges of Section 395 of the IPC, and
resultantly acquitted all the accused persons of the said charges.
However, the learned Court below found sufficient evidence to convict
the present appellants under Section 380 of the IPC. So, convicted them
there under. The relevant paragraphs of the Judgment of the learned
Court below are reproduced herein for ready reference:
"24. Really enmity or litigations are not grounds for
rejecting testimony of any witness though in such
circumstances his testimony is subject to strict scrutiny which
has already been done in this case. The learned counsel for
defence in support of his aforesaid submission has cited a
number of decisions in course of his argument which need
not be referred to.
25. In view of aforesaid discussion, I find that prosecution
has failed to prove all ingredients of charge U/s. 395 I.P.C.
against accused persons but I find sufficient evidence as
discussed above U/s. 380 I.P.C. against accused persons
Basanta Ku. Pradhan and Rajkishore Pradhan for their acts
of removing two tin boxes from the house of the informant
during course of instant occurrence. Hence I acquit all the
accused persons from their Criminal charge U/s. 395 I.P.C.
except accused persons Basanta Kumar Pradhan and
Rajkishore Pradhan who are found guilty U/s. 380 I.P.C. and
convicted thereunder."
5. The appellants in the present case, being aggrieved by the judgment
of conviction for the offence punishable under Section 380 of the IPC
and the sentence on that count, has assailed the same in the present
Criminal Appeal.
6. Heard Mr. D.P. Pattnaik, learned Counsel appearing for the
Appellants and Mr. R.B. Dash, learned Additional Standing Counsel
appearing for the Respondent-State.
7. At the outset, Mr. Pattnaik, learned counsel for the appellants
submitted that the appellants may be extended with the benefit of the
Probation of Offenders Act regard being had to their age and clean
antecedent as it is apparent from the record that the Appellant No.1 is of
about 66 years and Appellant No.2 is about 82 years. To substantiate his
claim regarding the benefit of P.O.Act, 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 in1. The Hon'ble Supreme Court
has given the following finding:
"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 361CrPC also empower the courts to release
(2022) 6 SCC 722
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 34IPC, 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 behaviour 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 judgment of the Hon'ble
Supreme Court cited by him, Mr. Pattnaik, learned counsel submitted
that this is a case where the appellants have been acquitted of the charge
under Section 395 of the IPC. However, in this case the appellants have
been convicted for the offence punishable under Section 380 of the IPC.
8. In that regard, Mr. Pattnaik, learned counsel has relied upon the
judgment of the Hon'ble Supreme Court in the case of Ramesh vs. State
of Rajasthan2. The Hon'ble Supreme Court has held thus:
2025 SCC OnLine SC 50
"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 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."
9. On the strength of the aforementioned judgment and the fact
scenario of the present case, Mr. Pattnaik, learned counsel submitted that
the appellants may be extended to the benefit of the Probation of
Offenders Act. He has submitted that the incident had taken place in the
year 1990 (01.05.1990). The appellants have undergone the rigors of trial
for one year. Thereafter, the appeal was preferred in the year 1991
(09.10.1991). The appeal has been prolonging to be heard for about 34
years. At the time of incident, the Appellant No.1 was in his thirties and
Appellant No.2 was in his late forties. At present Appellant No.1 is in his
mid-sixties and Appellant No.2 is an octogenarian leading a respectful
life along with his family. The learned Counsel further submitted that the
appellants have no criminal antecedents, and no other case of a similar
nature or otherwise is stated to be pending against them. Over the years,
they have led a dignified life, integrated well into society, and are
presently leading a settled family life. Incarcerating them 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
them but also upon their 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 appellants
may be extended the benefit of the Probation of Offenders Act read with
Section 360 Cr. P.C.
10. I have taken into consideration the submission made by Mr.
Pattnaik, learned counsel for the appellants 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
appellants, and their clean antecedent and the fact that the incident had
taken place in the year 1990, I am inclined to extend the benefit of the
Probation of Offenders Act to the appellants.
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 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 three 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 three months.
12. With the above observation, the CRA is accordingly disposed of.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 31st July, 2025 / Subhasis Mohanty
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 04-Aug-2025 19:04:39
