Prakash Naidu And Others vs State Of Orissa
2025 Latest Caselaw 10103 Ori

Orissa High Court

Prakash Naidu And Others vs State Of Orissa on 18 November, 2025

            THE HIGH COURT OF ORISSA AT CUTTACK

                            CRA No. 4 of 1994

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


Prakash Naidu and others        .......                    Appellants
                             -Versus-

State of Orissa                .......                     Respondent

For the Appellants : Mr.P.K. Mishra, Advocate

For the Respondent : Mr. S.J. Mohanty, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 11.11.2025 : Date of Judgment: 18.11.2025

S.S. Mishra, J. The present Criminal Appeal is conjointly preferred by

three appellants challenging the judgment and order dated 30.11.1993 passed

by the learned Additional Sessions Judge-cum-Special Judge, Paralakhemundi

in G.R. Case No. 101 of 1992, convicting them for offence under Section 379

of IPC and Section 3(1)(v) of SC & ST (PoA) Act and sentenced them to

undergo R.I. for six months for the offence under Section 379 I.P.C. and further six months and to pay a fine of Rs.500/- in default S.I. for one month

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

2. Although this appeal has been filed conjointly by three appellants, but

during pendency of this appeal it was informed to the Court that appellant

no.1-Prakash Naidu has expired. Therefore, vide order dated 31.07.2025, the

present appeal stood abated qua the appellant no.1, in the absence of any

application under Section 394 Cr.P.C. by either the L.Rs of the deceased

appellant or next friend. Hence, consideration of the present appeal is only

confined to appellant nos.2 and 3 alone.

3. Heard Mr. P.K. Mishra, learned counsel for the appellants and Mr. S.J.

Mohanty, learned Additional Standing Counsel for the State.

4. The narrative of the prosecution case in the present case is that on

12.04.1992 at about 8.30 A.M. the accused persons forcibly entered into the

cashew nut plantation allotted to the victims/villagers of Saura of Kuruda

under Garabandha P.S. and removed cashew nuts after assaulting the

villagers.

5. The criminal law was set in motion against the appellants on

registration of the FIR No.11 dated 12.04.1992 for alleged commission of

offence punishable under Sections 379/34 IPC read with Section 3(1)(v) of the

SC & ST (PoA) Act. After investigation, the police filed charge sheet and on

the stance of denial and claim for trial, the appellants were put to trial after the

charges were framed.

6. When the trial was in progress, at that point of time, it appears that the

matter was attempted to be settled. It is the case of the prosecution that 32

persons have reported to the police, but only P.W.1, the informant in the

present case has signed the compromised petition. Therefore, the trial court

did not pay any heed to it and proceeded to decide the matter.

7. The prosecution examined nine witnesses to bring home the charges.

P.W.1 the informant of the case did not support the prosecution. Similarly,

P.Ws.6 to 8 have also wriggled out of their previous statement and were

declared hostile. Hence, the entire prosecution case rests on the shoulders of

P.Ws.2 to 5 and P.W.9, the Investigating Officer of the case.

8. The large part of the impugned judgment deals with the compromise

petition and eventually the compromise petition was not acted upon. The

learned trial court while relying upon the evidence of P.Ws.2 to 5 has arrived

at a conclusion that the accused persons have forcibly removed the cashew

nuts from the land of the prosecution witnesses and recorded the following

findings:-

"14. Coming to the second point of determination, it is seen that the informant and accused persons are of neighbouring village and the spot is at a considerable distance from the village of the accused persons. It is seen that both the parties are known to each other and the circumstances under which the removal of cashew nuts has been made indicates that accused persons have forcibly taken the cashewnuts from the plantation. Thus, there is no doubt to say that the accused persons have committed the offence u/s 379 I.P.C."

9. It appears that the learned trial court has not analysed the evidence

individually, rather taking into consideration the evidence in its entirety came

to the conclusion that the appellants are guilty of offence under Section 379

I.P.C. In so far as the offence under Section 3(1)(v) of the SC & ST (PoA)

Act, the learned trial court has only recorded the following findings:-

"15. So far the offence under Atrocities Act is concerned, the accused persons are Kampo-Saura by caste and they are not coming under S.C or S.T. But, the victims, the informant are Scheduled Tribe persons. In such circumstance taking of cashew nuts is nothing, but to interfere with the right of Sauras over their land which is coming under 3 (1) (v) of S.C/S.T Prevention of Atrocities Act. Thus in view of my discussion, all the accused persons are liable U/s 379 IPC & 3 (1) (v) of S.C/S.T. Prevention of Atrocities Act and I convict them thereunder."

10. Relevant would be to deal with the evidences in regard to the offence

under Section 3(1)(v) of SC & ST (P.A) Act. P.W.2 has deposed before the

court that he had got eight cashew nut trees from the Soil Conservation

Department and he has been taking care of those trees. On the occurrence date

at about 12.00 A.M., the accused persons came and forcibly taken the cashew

nut by assaulting him. However, in the cross-examination, he has admitted

that he has no document to show that he has received eight cashew nut trees

from the Soil Conservation Department and he was not able to disclose the

plot number where the cashew nut trees were situated.

P.W.3 has stated that he and P.Ws.1 and 2 are from Soura caste,

whereas the accused persons are Kampa Sabara. He stated that they were in

possession of cashew nut tope near Londa parbat. The Soil Conservation

Officer had given the tope to twenty families of their village and he has got

thirty trees. He has also stated that every villagers have got thirty trees. He

stated that they have deposited one rupee per year towards the rent of the tope.

He has not stated in his evidence that the accused persons have forcibly taken

the cashew nuts. However, in the cross examination he has stated that he

along with four to six persons were present at that point of time the accused

persons came and forcibly took away the cashew nuts.

Similarly, P.W.4 has stated that about two years back the accused

persons came to his land and forcibly took the cashew nuts. He has received

the same from the Soil Conservation Department and on his protest the

accused persons threatened to assault the villagers. He has also given the cost

of the cashew nuts to be Rs.1000/-.

P.W.5 also deposed in the similar line. The other villagers, like P.Ws.6,

7, 8 as well as P.W.1 not supported the prosecution case, though they stated to

be the victim of the incident.

11. From the evidence of all the witnesses, the only thing which is coming

to fore is that the accused persons have forcibly taken the cashew nuts trees

under the possession of the witnesses which they have received from the Soil

Conservation Department. In the light of the above evidence, the charge under

Section 3(1)(v) of the SC & ST (PoA) Act needs to be appreciated. It could be

safely concluded that the prosecution has failed to prove the charge of Section

3(1)(v) of the SC & ST (PoA) Act. Moreover, the prosecution has not

admitted to bring on record an iota of evidence to establish that the victim,

i.e., the prosecution witnesses belong to either Scheduled Caste or Scheduled

Tribe community. No certificate or for that matter any kind of oral evidence

has been adduced by the prosecution. Moreover, in the fact scenario of the

case as well, the charge under Section 3(1)(v) of SC & ST (PoA) Act is not

attracted. Therefore, I am completely not in agreement with the conclusion

drawn by the learned trial court in paragraph-15 as reproduced above. Hence,

that part of the judgment by which the appellants were convicted on the

charges of offence under Section 3(1)(v) of SC & ST (PoA) Act is set aside.

12. In so far as the offence under Section 379 IPC is concerned, although

the learned trial court has not meticulously dealt with all the evidence,

however fact remains that conjoint reading of the evidence of P.Ws.2 to 5

brings out a case of theft against the accused persons as all the witnesses have

stated in unison that the cashew nut trees received by them from the Soil

Conservation Department has been forcibly taken away by the accused

persons. Therefore, the conclusion drawn by the learned trial court convicting

the accused appellants for offence under Section 379 IPC sustains.

Accordingly, I affirm the judgment of conviction and order of sentence passed

against the appellants in so far as Section 379 IPC is concerned.

13. At this stage, Mr. Mishra, learned counsel for the appellants submitted

that the incident relates back to the year 1992 and at that point of time all the

accused persons were young. After more than three decades the surviving

appellant nos.2 and 3 have attained the advance age. Moreover, appellant no.2

was twenty years at the time of incident, therefore at present he is fifty three

years of age. Similarly, appellant no.3 was 35 years of age at the time of

incident and at present he is sixty-eight years of age. He submitted that the

appeal has been prolonging to be heard for about 31 years. Therefore, sending

the appellants to custody for fulfilling their remaining sentence at this belated

stage would serve no purpose. 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. I am inclined to accede to the

prayer made by Mr. Mishra, learned counsel for the appellants on the facts

scenario of the case.

14. Regard being had to the societal position of the appellants, clean

antecedents and the fact that the incident had taken place in the year 1992, I

am of the considered view that the appellants are entitled to the benefit of the

Probation of Offenders Act and Section 360 of Cr.P.C.

15. At this point, it would be apt to place reliance on the judgment of the

judgment of the Apex Court in Rattan Lal v. State of Punjab1, wherein the

Court held that the object of the Probation of Offenders Act is to reform the

individual offender and to prevent the conversion of a youthful or first-time

offender into a habitual criminal by subjecting him to prison life. It was held

thus: -

"The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act."

AIR 1965 SC 444

Similar principles were reiterated in the judgment of this Court in the

cases of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra2

and Dhani @ Dhaneswar Sahu vs. State of Orissa3.

16. 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 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.

17. Accordingly, the Criminal Appeal is partly allowed and disposed of.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack Dated the 18th of November, 2025/Ashok

Signature Not

Verified 2012 (Supp-II) OLR 469 Digitally Signed 2007 (Supp.II) OLR 250 Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa