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Orissa High Court

(1)Narayan Sahu vs State Of Orissa on 16 April, 2026

        THE HIGH COURT OF ORISSA AT CUTTACK

                      CRLA No. 544 of 2009

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

(1)Narayan Sahu
(2) Rabindra Nath Sahu               ......                Appellants

                                -Versus-

State of Orissa                      ......             Respondent

For the Appellants : Mrs. M. Routray, Advocate

For the Respondent : Mr. Ashok Kumar Apat, AGA

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 07.04.2026 : Date of Judgment: 16.04.2026

S.S. Mishra, J. The two appellants have filed this appeal assailing

the judgment of conviction and order of sentence dated 30.11.2009

passed by the learned Additional District & Sessions Judge,

Kendrapara, in S.T. Case No.67 of 2005, whereby the learned trial

Court, upon appreciation of the facts, circumstances, emanating from the evidence on record, held that the prosecution had successfully

established the charges under Sections 341/323/34 of the IPC against

the accused persons beyond all reasonable doubt. Consequently, after

hearing the convicts and their counsel on the question of sentence,

and considering the plea for leniency considering the age of the

appellants, the learned trial Court sentenced both the appellants to

undergo simple imprisonment for three months each under Section

323 IPC and simple imprisonment for fifteen days each under Section

341 IPC, directing the sentences to run concurrently, with entitlement

to set off.

2. Heard Mrs. M. Routray, learned counsel for the appellants and

Mr. Ashok Kumar Apat, learned Additional Government Advocate

for the State.

3. The prosecution case, in brief, is that on 14.09.1999 at about

11:00 A.M., at Village Kalabuda, the informant received information

that the accused persons were cutting paddy crops standing on her

land situated near the river bank. In the absence of her husband, she

sent her son and nephew to the spot, and she, along with her sister-in-

law, followed them shortly thereafter. Upon reaching the spot, her son

and nephew protested against the accused persons for harvesting

paddy from their land, whereupon the accused persons abused them in

filthy language and assaulted them, subsequently pushing both of

them into the river.

On hearing the commotion, the informant and her sister-in-law

reached the place of occurrence and, seeing the condition of their

sons, raised alarm. The accused persons also abused them in obscene

and derogatory language. Accused Narayan dragged the informant's

sister-in-law, Santilata Mallik, and assaulted her, while accused

Rabindra assaulted the informant by pushing and pulling her, causing

injuries. During the course of such assault and scuffle, the wearing

apparels of the informant were torn, and two of her gold earrings fell

down, which were allegedly taken away by the accused persons.

On the same day, the informant lodged a report at Patkura

Police Station. On the basis of the said report, the police took up

investigation and, upon completion, submitted charge-sheet against

the accused persons under the relevant provisions of law. As the

offence under Section 3 of the S.C. & S.T. (Prevention of Atrocities)

Act is exclusively triable by the Special Court, the learned S.D.J.M.,

Kendrapara committed the case to the Court of Session for trial.

4. In order to establish its case against the accused persons,

the prosecution has examined as many as eleven witnesses, P.Ws.1 to

11, and relied upon seven exhibited documents, marked as Exts.1 to

7. P.W.1 is the son of the informant and one of the victims. P.W.2 is

the informant herself, while P.W.3 is her husband. P.W.6, the sister-

in-law of the informant, and P.W.11, her nephew, are also victims to

the occurrence. P.W.9 was the Medical Officer, who examined the

injured persons on police requisition, and P.W.10 was the

Investigating Officer of the case. The remaining witnesses are

independent witnesses to the occurrence.

Ext.1 is the First Information Report. Ext.2/1 is the injury

report relating to the informant. Ext.3 is the seizure list in respect of

the xerox copy of the caste certificate. Exts.4, 5, and 6 are the injury

reports of the other injured persons, and Ext.7 is the spot map

prepared during the course of investigation.

5. Although the appellants initially stood charged for offences

under Sections 341/323/294/354/34 IPC and Section 3 of the SC &

ST (PoA) Act, however, the learned trial Court after proper

appreciation of evidence and by appropriately relying on the

prosecution witnesses and other evidences convicted the appellants

for offence under Sections 341/323/34 by holding as under:-

"12. Khirod Nyak (PW-7) testifies that at the relevant time he was returning from Kalabuda market and found the accused persons cutting paddy in the land of the informant. Son and nephew of the informant objected to their action. Accused persons pushed them into the river and abused them saying "Magiha Bhaunigiha". The informant and her sister-in-law intervened. The accused persons dragged them. Informant is Kandara by caste and accused persons are of general caste. In cross-examination, he states that he is Khandayat by caste. He cannot say the names of the wife, son and brother of Padan. According to him some other persons were there near the spot. He further states in cross examination that both the accused persons pushed Padan's son and nephew into the river. By then Padan's wife and Padan's sister-in-law were near the river. Learned defence counsel submits that both the informant and her sister-in-law followed their sons to the spot and the formers reached at the spot after the latters were pushed into the river, but PW-7 states contradictory that they were present near the river when their sons were pushed into the river. He has also pointed out such other discrepancies in the evidence of P.Ws. and more particularly in the evidence of P. Ws.6 and 11. On scrutiny of the evidence on record, I find no discrepancies in the evidence of material witnesses and that of the independent witness barring that of P.W.11. P.W.6 though denied the occurrence against him, he has supported the other part of the prosecution case. As stated earlier, it is held that P.W.11 is not at all a truthful witness, From the evidence on record, it appears that on the date of occurrence the accused persons abused and assaulted P.W 1, P.W.2, and P. W.6 and P.W.11,

as a result of such assault P.W.2 and P. W.6 received injuries to their persons. However, there were no visible injuries on the person of P.W.1 and P. W.11. The occurrence took place in their land besides river ghat, which is claimed as their own by the informant. So, it is not at all a public place and there is no evidence on record that the abusive words uttered by the accused persons caused annoyance to any public. There is also discrepant evidence as regard the language of obscene words supposed to have been uttered by the accused persons. It is the evidence of the PWs that the accused persons dragged P. W.2 and P.W.6 in the process of assault and in that process the saree and blouse of P.W.2 were torn. P.W.2 and P.W.1 have stated that they had been to P.S. with the torn clothes, but the police has not seized the torn clothes in order to establish that her wearing apparels were torn by the accused persons. There is no evidence that the accused persons with the intention pull down the wearing apparels of P. W.2 and P.W.6 in order to outrage their modesty. If at all the wearing apparels were torn, it was in the process of assault but not intentional to outrage her modesty. It is evident that the accused persons pushed P. W.1 and P.W.11 into the river, which is a compelling act of the accused persons to prevent them from proceeding in any direction in which they have right to proceed, such as to save their lives from being assaulted by the accused persons, So forcibly pushing P.W.1 and P.W.11 into the river is an act of wrongful restraint by the accused persons. To sum up, the accused persons assaulted P.Ws. 1,2,6 and 11 causing injuries to their persons and wrongfully restraint P.Ws, 1 and 11; as such their action amounts to offence U/s.341/323 IPC and as they committed the offence conjointly, each of them are liable for the commission of offence U/ss.341/323 IPC as per Sec. 34 IPC. As stated earlier accusation U/s.3 of the SC & ST (PA) Act is a nullity in view of illegal investigation and there is no evidence to constitute the offence U/ss.294/354 IPC."

6. Aggrieved by the judgment of conviction and order of sentence

dated 30.11.2009 passed by the learned trial court, the appellants have

filed the present appeal.

7. Learned counsel appearing for the appellants, after advancing

arguments on merits, confined his submissions on the question of

sentence by contending that the incident dates back to the year 1999

and that the appellants were convicted by judgment dated 30.11.2009,

with the present appeal remaining pending since then. It was further

submitted that, in the intervening years, the appellants have led a

peaceful and dignified life, are well integrated into society, and are

presently settled in their family lives. In such circumstances, it was

argued that subjecting them to incarceration after a prolonged lapse of

time would serve no meaningful penological purpose and may instead

prove counter-productive, particularly in the absence of any

subsequent misconduct or violation. Accordingly, a prayer was made

to extend them the benefit of the Probation of Offenders Act.

It was also submitted that although the learned trial court had

taken into account the age of the appellants at the time of sentencing,

it declined to grant them the benefit under the Probation of Offenders

Act. At the time of commission of the offence, the appellants were

aged about 50 and 60 years respectively and, at present, they are

approximately 65 and 75 years old. The record further indicates that

they are first-time offenders. Considering the long passage of time

since the occurrence and the pendency of the appeal for over a

decade, the submission for extending the benefit of the Probation of

Offenders Act merits due consideration.

8. The Hon'ble Supreme Court in Chellammal and Another v.

State represented by the Inspector of Police1 has elaborately

explained the scope, object and significance of the Probation of

Offenders Act, 1958 while considering the question of extending the

benefit of probation to a convict. The Hon'ble Supreme Court has

underscored that the legislative intent behind the enactment of the

Probation of Offenders Act is essentially reformative in nature,

aiming to provide an opportunity to first-time or less serious offenders

to reform themselves rather than subjecting them to incarceration. It

has been emphasized that the provisions of the Act are intended to

prevent the deleterious effects of imprisonment on individuals who

can otherwise be rehabilitated as responsible members of society. The

Court has further highlighted that Section 4 of the Probation of

2025 INSC 540

Offenders Act confers a wide discretion upon the courts to release an

offender on probation in appropriate cases and that the said provision

has a broader and more expansive ambit than Section 360 of the Code

of Criminal Procedure, 1973.

While discussing the interplay between the aforesaid

provisions, the Hon'ble Supreme Court has also clarified that courts

are duty-bound to consider the applicability of the Probation of

Offenders Act in cases where the circumstances justify such

consideration, and if the court decides not to extend the benefit of

probation, it must record special reasons for such refusal. The relevant

observations of the Hon'ble Supreme Court are reproduced

hereunder:

"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. "

Regard being had to the facts of the present case, particularly

the long lapse of time since the occurrence, the absence of criminal

antecedents of the appellants and the overall circumstances emerging

from the record, this Court is of the considered view that the case of

the appellants deserves consideration under the beneficial provisions

of the Probation of Offenders Act. The said view also finds support

from the decisions of this Court in Pathani Parida & another vs.

Abhaya Kumar Jagdevmohapatra2 and Dhani @ Dhaneswar Sahu

vs. State of Orissa3 wherein in somewhat similar circumstances the

benefit of probation was extended to the convicts. In view of the

aforesaid legal position and the peculiar facts and circumstances of

the case, this Court is inclined to extend to the appellants the benefit