Khira Sahu & Another vs State Of Orissa
2026 Latest Caselaw 2506 Ori

Orissa High Court

Khira Sahu & Another vs State Of Orissa on 17 March, 2026

         THE HIGH COURT OF ORISSA AT CUTTACK

                        CRA No.307 of 1995
                                AND
                        CRA No.135 of 1996
(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)
                        CRA No.307 of 1995

Khira Sahu & another            .......                   Appellants
                               -Versus-
State of Orissa                  .......                 Respondent

For the Appellants : Mr. Debi Prasad Pattnaik, Advocate

For the Respondent : Mr. Jateswar Nayak, Additional Government Advocate

AND

CRA No.135 of 1996

Tukuna @ Sujit Kumar Khuntia ....... Appellant

-Versus-

State of Orissa ....... Respondent For the Appellant : Mr. Debi Prasad Pattnaik, Advocate

For the Respondent : Mr. Jateswar Nayak, Additional Government Advocate

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 10.03.2026 :: Date of Judgment: 17.03.2026

S.S. Mishra, J. Both the aforementioned Criminal Appeals are arising

out of the common judgment of conviction and order of sentence dated

14.11.1995 passed by the learned Assistant Sessions Judge, Athagarh in

S.T. Case No.282 of 1993 whereby two appellants in Criminal Appeal

No.307 of 1995 have been convicted for the offence punishable under

Section 395 of the IPC and sentenced to undergo R.I. for seven years and

to pay a fine of Rs.300/- (Rupees three hundred) in default to undergo

R.I. for two months each whereas the sole appellant in Criminal Appeal

No.135 of 1996 Tukuna @ Sujit Kumar Khuntia has also been convicted

for the offence punishable under Section 395 of the IPC besides the

offence punishable under Section 27 of the Arms Act. Apart from

sentencing him to undergo R.I. for seven years for the offence under

Section 395 of the IPC, he was additionally sentenced to undergo R.I. for

three years for the offence punishable under Section 27 of the Arms Act

and to pay a fine of Rs.500/- (Rupees five hundred) on both the counts,

in default, to undergo R.I. for three months.

2. Heard Mr. Debi Prasad Pattnaik, learned counsel appearing for the

appellants and Mr. Jateswar Nayak, learned Additional Government

Advocate for the State.

3. The prosecution alleged that on 19.09.1992, after taking dinner,

the informant Bidyadhar Pradhan, his parents, wife and children slept in

their house. In the midnight, the mother of the informant woke up to

attend the call of nature. When she opened the back door, the culprits

forcibly entered her house and threatened the parents and God mother of

the informant on the point of knife and subsequently one of the culprits

assaulted and threatened the informant and his wife and other culprits

entered the room and removed the articles by breaking the boxes and

trunks. They also threatened the informant and his wife by pointing knife

and asked for the valuables including Hanuman coin. The culprits had

removed two gold ring, one gold necklace, one broken tika, two gold ear

rings, one gold big ring, one small ring, some gold pieces, some gold

pieces including two gold barada fala, two ear rings, a pair of silver

paunji, one silver armlet, one silver coin, two gold nose rings, one 100

rupees note, 12 numbers of two rupee coin. Before leaving the house, the

culprits confined the inmates in the rooms and chained the door.

Subsequently, the informant managed to come out of the room through

an internal passage and informed the villagers and his brother Suinakar

who was witnessing a video show regarding the occurrence subsequently

informed the fact to the Police (Gurudijhatia Police Station over phone).

In the same night, the then O.I.C. arrived at the spot and drew up plain

paper F.I.R. under Ext.1 and took up the investigation. The Police staff

along with some of the villagers searched for the accused persons and

subsequently chased the accused persons near Chhagaon Railway Station

and caught hold of Accused Khira Sahu and recovered one bag

containing some garments, gold and silver ornaments and other articles

and seized the same under Ext.3. The I.O. has also seized four cycles left

by the culprits near Bhatudi Chhak and Railway Cabin of Chhagan

Railway Station under Ext.2. During the spot visit, the Scientific Officer

one pencil torch soap case, box and steel tatia were seized under Ext.5.

Subsequently while under arrest accused Dhirendra and Sujit gave

recovery of a bag containing a country-made gun, pointed iron rod, knife

and cartridges and one handkerchief containing copper coins under

Ext.5. The specimen fingerprint also collected and examined by the

fingerprint experts, who submitted their reports under Ext.12. The

statement of witnesses Narendra Behera, Jadumani Moharana and

Daitari Sahu were recorded by the then Magistrate, 2nd Class, Athagarh

under Section 164 Cr. P.C. some of the seized articles and accused

Dhirendra, Sujit and Khira were identified during the T.I. Parade.

4. In order to bring home the charges, the prosecution has examined

16 witnesses. P.W.1 was the informant. P.Ws.2 and 3 were the witnesses

to the apprehension of the accused Khira Sahu and seizure of articles

under Exts.2 and 3. P.W.5 was the Cabin Man in Gurudijhatia Railway

Station during the time of recovery and seizure of the articles and

apprehension of accused Khira Sahu near the Railway Cabin. P.Ws.4 and

11 were the witnesses to the seizure of attendance Register of Orissa

Cotton Mill relating to accused Ajoy Kumar Swain. P.W.7 was Daitari

Sahu to whom accused Ajoy had requested to spare his cycle. P.W.6 was

the brother of accused Dhirendra Behera, whose cycle was utilized by

accused Dhirendra during commission of the alleged crime. P.W.9 was

Jadumani Moharana, whose license token was fitted in the cycle of

P.W.6. P.W.8 was a witness to the seizure of the articles seized during

the visit of the Scientific Officer under Ext.5. P.W.10 was a witness to

the recovery and seizure of the articles according to the person of

accused Sujit Kumar Khuntia and Dhirendra under Ext.6. P.W.11 was

Bhagyadhar Sahoo, in whose house accused Ajoy Kumar Swain was

residing as a tenant during the occurrence period. P.W.13 was the then

O.I.C. of Gurudijhatia Police Station and P.Ws.14 and 16 were the then

A.S.Is. attached to Gurudijhatia Police Station and P.W.15 was the then

Magistrate of Second Class of Athagarh, who had conducted the T.I.

Parade in respect of the suspects and properties.

5. Initially, six accused persons stood charged for commission of the

offences punishable under Sections 457/395 of the IPC r/w Section 27 of

the Arms Act. The learned trial Court, after appreciating the evidence

brought on record by the prosecution, found the present appellants guilty

of the offences as mentioned above, however, acquitted co-accused

Narasingha Nayak, Ajaya Swain and Nanda alias Gobinda Das of all the

charges. The convicted appellants have preferred separate appeals

against the common judgment as mentioned in the opening paragraph.

6. Learned trial Court, after analyzing the evidence arrived at the

conclusion that the prosecution had failed to establish the charges of

offence under Section 457 of the IPC and acquitted all the accused

persons of the said charge.

7. In so far as the offence punishable under Section 27 of the Arms

Act is concerned, the learned trial Court arrived at the following

conclusion:

"So far as the offence U/S. 27 of the Arms Act is concerned, it is seen from the evidence of P.W.1 that in the occurrence night during commission of the crime accused-Sujit had threatened the inmates by showing a gun and bomb not to disclose the facts before the police

and in case the fact would be reported he would do away with the lives of family members. On perusal of the evidence of P.Ws.10 and 13 it reveals that both the accused Dhirendra and Sujit led the Police party to the place where they concealed a bag under the heap of chips containing a country made pistol folded in three parts. The I.O. has clarified that the country made gun. Two cartridges were sent to Director of S.F.S.L., Rasulgarh vide Ext.18. Thus, it is evident that the accused-Sujit was illegally possessing and using the gun while committing robbery in the house of the informant. Subsequently, he gave recovery of the gun and cartridges along with other articles which were seized under Ext.6. Such illegal possession of the country made gun without any license would come under the purview of Section 27 of the Arms Act. Accordingly, I find that the prosecution has made out a case U/S. 27 of the Arms Act against accused-Sujit."

8. The analysis of the evidence made by the learned trial Court in

regard to the offence under Section 27 of the Arms Act cannot be faulted

with. The evidence on record speaks loud and clear regarding the illegal

possession of arms by accused-Sujit, the appellant in CRA No.135 of

1996. The prosecution could also bring on record unequivocal evidence

regarding recovery of those offensive weapons at the instance of accused

Sujit and Dhirendra. The weapon of offence was also sent to the

S.F.S.L., Rasulgarh through Ext.18. Although P.W.10 the seizure

witness, has stated in his cross-examination that the seized gun and

cartridge were not produced before the Court, but the said witness has

not created any doubt regarding recovery of the weapons at the instance

of Sujit and Dhirendra. This part of the evidence could not be dented by

the defence in any manner whatsoever in the cross-examination of the

witness or otherwise. Therefore, the findings arrived at by the learned

trial Court deserves to be affirmed.

9. In so far as the offence punishable under Section 395 of the IPC is

concerned, it is worthwhile to mention the ingredients required to be

brought on record to establish the said offence.

Section 391of IPC defines "dacoity" which reads as under:

"391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity"."

The first ingredient to attract the offence is that there must be five

or more persons conjointly involved in commission of the robbery.

In the instant case, although six persons were initially charged for

the offence punishable under Section 395 of the IPC, the learned trial

Court, on analysis of the evidence, found that three out of six persons

were not at all involved in commission of the crime. Hence, they were

acquitted of all the charges. After such acquittal, the number of the

accused allegedly involved in the commission of the crime has been

reduced to three persons. Therefore, the learned counsel for the

appellants submitted that even if the evidence on record are stretch to

any extent, the offence under Section 395 of the IPC cannot be made out

against these three appellants.

10. In the light of the submission made by learned counsel and the

evidence available on record, the impugned judgment of the learned trial

Court needs to be appreciated. P.W.1 is the informant in the present case.

He has deposed that on 19.09.1992 at about 1 A.M., the incident took

place. On that day, P.W.1, his father, mother, wife and two minor

children were sleeping in the house consisting of about ten bedrooms. He

described where all his family members were sleeping that night in his

house. It is his evidence that his mother when went outside to attend the

call of nature through the back door, some persons pulled his mother and

his mother shouted "Bidia maripakeile doudia". Then his wife alarmed

that someone has assaulted them. Suddenly, he saw Khira Sahu in the

room. Khira Sahu pointed out the knife on the chest and started abusing.

At that time, other accused persons also entered his room. They took all

the family members and asked them to sit in the courtyard and

threatened them. Accused Chagala was armed with a knife and one stick

and he broke the stick into two pieces with the help of his hand and leg.

Accused Khira moved the lamp from outside. Therefore, P.W.1 could

identify Chagala. Accused Chagala gave 4 to 5 slaps to P.W.1. At that

time, one of the accused persons asked him regarding the Hanuman coin

and other valuable articles like gold and silver. He was manhandled by

the accused persons. All six accused persons have broken into the

southern side room and looted various articles. The witness has given

narration of all the articles. P.W.1 also stated that he identified the

accused Khira Sahu in the T.I. Parade at Athagarh jail. He further stated

that he first saw the accused Khira on the spot, then at the jail at T.I.

Parade. After 15 days gap in another T.I. Parade, he identified other

accused persons namely, Sujit, Chagala etc. He further stated that in the

T.I. Parade, he identified all his articles, which were stolen away by the

accused persons. P.W.1 has deposed contradictorily regarding the report

he had given to the police. Initially, on his instruction, one Bimbadhar

Sahani has written the F.I.R, which is Ext.1 and in the cross-

examination, he stated that one Basanta has scribed the F.I.R. In any

case, neither Bimbardhar Sahani nor Basanta were examined.

11. P.W.15 was the J.M.F.C., Athagarh, who conducted the T.I.

Parade of both the accused persons and the articles. His testimony has

been emphatically relied upon by the prosecution. But the learned trial

Court discredited the evidence brought on by the prosecution regarding

the T.I. Parade. In paragraph-7 of the judgment of the trial Court, which

reads as under:

"7. So far as the T.I. Parade in respect of accused Sujit and Dhirendra and the seized articles are concerned, it is evident from the testimony of P.W.15 that on 23.10.92 he had conducted the T.I. Parade in respect of Dhirendra and Sujit inside the Sub-Jail, Athagarh. Bidyadhar Pradhan (P.W.1) was the identifying witness who had correctly identified Dhirendra and Sujit and during identification he had disclosed the particular role played by each of the accused persons and that he could identify them during the commission of the crime with the help of light of a lamp. It is in the evidence of P.W. 15 that the suspects were mixed with 18 others similar U.T.Ps. having similar height, dress and appearance P.W.1 has also stated

that he had disclosed the role of each of the accused persons and the manner of commission of the offence before P.W.15 during the T.I. Parade. It has been contended by the learned defence advocate that P.W.1 had admitted that prior to the T.I. Parade he had gone twice to the court in connection with T.I. Parade of accused Chagala, Sujit as well as Khira Sahu. He has also urged that in view of inordinate delay in conducting the T.I. Parade the identification has lost its value. On verification of the G. R. Case No.298/92 it is seen that Both Dhirendra and Sujit alongwith accused Narsingha Naik were forwarded to the Court on 19.10.92 and the then S.D.J.M., had rejected the bail petition and remanded the accused persons to Jail custody till 20.10.92 for recording the statements of the accused persons U/s. 164 Cr.P.C. On 20.10.92 the accused persons were remanded till 26.10.92 and on the same day the then J.M.F.C. Sri D.K. Mishra had fixed the date for holding T.I. Parade on 23.10.92 and passed orders for issue of notice to the identifying witnesses and intimation to the Superintendent of Sub-Jail, Athagarh for T.I. Parade. Although P.W.1 has stated that prior to the T.I. Parade of Khira, Chagala and Sudhir had gone twice to the court but he has not specifically disclosed the dates when he visited the court. He is also silent regarding the presence of the accused persons on those dates in the court. Admittedly the T.I. Parade of the accused persons was held on two occasions. In that view of the matter it cannot be concluded that prior to the T.I. Parade of Dhirendra and Sujit P.W.1 had seen them in the Court. Thus the above submission of the learned Defence Advocate is no avail to the defence. So far as the delay is concerned he has relied on the decision reported in A.I.R. 1983-SC-page 289 Bali Ahir and others-Vrs-State of Bihar. In the above reported case there was delay of four days coupled with some other legal infirmities during the conduct of T.I. Parade for which the Apex Court did not accept the evidence on T.I. Parade. In the present case there is no other legal infirmities for which the above decision is distinguishable in nature. In a recent decision of our Hon'ble Court reported in (1995) 9-OCR page

390) Danardan Samal-Vrs-State of Orissa. His Lordship has observed that "11 days delay cannot be said to be such as inordinate delay as would vitiate the identification. P.W.1 has

not only identified the accused Dhirendra, and Sujit during the T.I. Parade but also identified them during the trial in the court and on both occasions he had vividly narrated the manner of a commission of the crime and particular role played by each of the accused persons. In view of the above dictum the delay of four days in holding T.I. Parade would not affect the prosecution case. So far as the T.I. Parade in respect of the properties are concerned it is seen from the evidence of P.W.15 that on 29.9.92 he had conducted T.I. Parade in respect of one gold silver coin, a pair of silver panjam, one pair of gold ring, one gold ring having monogram of Ashok pillar, two pieces of gold Harada Fala, one gold nose flower in the court premises.

The articles were mingled with sufficient number of similar type of articles and identifying witness Bidyadhar Pradhan had correctly identified the properties. It is in the evidence of P.W.1 that he had correctly identified the stolen articles which were mixed with similar type of ornaments during the T.I. Parade. Nothing substantial could have been brought from the evidence of P.Ws.1 and 15 so as to impeach the genuineness of the T.I. Parade in respect of the accused Dhirendra and Sujit and the seized articles."

12. The learned trial Court has rightly believed the evidence of P.Ws.1

and 15 in so far as the T.I. Parade of accused Sujit and Dhirendra is

concerned. The T.I. Parade in so far as the seized articles are concerned,

was also held to be unimpeachable. There is no reason for this Court to

disagree with the findings recorded by the learned trial Court in so far as

the T.I. Parade is concerned, as the same is culmination of the true and

right appreciation of the evidence on record.

13. The contradiction in the contents of the F.I.R., non-examination of

the scribe of the F.I.R. and other infirmities in registration of the F.I.R.

have been prominently highlighted by the learned counsel appearing for

the appellants. Ext.1 was the F.I.R. In the F.I.R., P.W.1, on whose

instance, the same was scribed, it was found that the name of one

Chandramani Moharana, who alleged to have dominantly participated in

commission of the crime. However, his name has not been taken by

P.W.1 in his testimony before the Court and he was not even charge-

sheeted. Therefore, the defence urged that Ext.1, the F.I.R. is not a

genuine F.I.R and not tenable in the eye of law being hit under Section

162 of the Cr. P.C.

14. P.W.13 is the I.O. of the case, who deposed that he received a

telephonic message regarding the dacoity. The A.S.I. of the Police

Station has made Station Diary Entry No.233 on 18.09.1992. Thereafter,

he, along with other staff, proceeded to the spot and he reduced the oral

statement of the informant-P.W.1 in writing and treated the same as an

F.I.R. and he took up the investigation on the basis of the F.I.R. Perusal

of the F.I.R. also reveals that the I.O. has made endorsement on the body

of the F.I.R. at 3.30 A.M. on 19.02.1992 under Ext.1/2 and the A.S.I.

registered P.S. Case No.82 of 1992 at 8 A.M.

P.W.16 has corroborated the aforementioned fact. However,

P.W.1 in his evidence has stated that he has lodged the F.I.R. at 5 P.M.

on the next day of the occurrence and he has also stated that one

Bimbadhar Sahani has scribed the F.I.R. on his instruction. This version

of P.W.1 runs completely contrary to the evidence of P.Ws.13 and 16.

That is the reason the learned trial Court made the following observation

while dealing with the genuineness of the F.I.R. in the subject.

"No doubt the informant has given some prevaricating statements regarding the manner of lodging the F.I.R. Paragraph-3 of his examination-in-chief he has stated that the F.I.R. was scribed by one Bimbadhar Sahani of Gurudijhatia Police Station which was lodged at 4 a.m. in the occurrence night whereas in paragraph-5 he has stated that on 19.09.1992 at 10 A.M., he had gone to the Police Station and the F.I.R. was scribed at about 7 P.M. on the same day by one Basanta of Gurudijhatia Police Station. During the cross-examination, he stated that the F.I.R. was lodged at 5 P.M. on the next day of the occurrence. In view of the evidence of P.Ws.13 and 16 coupled with the endorsement made on the F.I.R., it is clear that the F.I.R. was prepared at the earliest opportunity by then O.I.C. of Gurudijhatia Police Station, for which I do not accept the version of P.W.1 regarding the submission of any subsequent report. In that view of the matter, there is absolutely no material to discard the genuineness of the plain

paper F.I.R. and to disbelieve the prosecution case on that score."

The reasoning assigned by the learned trial court to accept the

genuineness of the F.I.R. sounds to be logical, although P.W.1 has given

varied statement in that regard. The documentary evidence was given

much importance over the ocular evidence to believe the genuineness of

the F.I.R. Therefore, in that count also, I completely agree with the

findings returned by the learned trial Court.

15. In nutshell, the findings recorded by the learned trial Court

cannot be faulted with, being the culmination of true and right

appreciation of the evidence. But the moot question is regarding the

nature of offence committed by the accused persons. If the finding of the

learned trial Court is upheld in toto, the only inference that could be

drawn is that in the entire commission of the crime, it appears that three

accused persons, namely, the appellants have participated in commission

of the crime. Therefore, their overt act and conduct are coming under the

mischief of Section 390 read with Section 392 of IPC rather than the

offence under Section 395 of IPC. The prosecution has successfully

proved its case to bring the offence described U/S. 390 of the IPC

through unimpeachable evidence of P.Ws.1, 13, 14, 15 and 16 besides

the seizure witnesses. The T.I. Parade conducted by the prosecution

through the learned J.M.F.C., (P.W.15) in so far as the seized articles are

concerned, is also rightly believable. The recovery of the articles from

the possession of three accused persons also cannot be doubted because

of the evidence of the seizure witnesses. On the overall analysis of the

evidence available on record and by appreciating the manner in which

the learned trial Court has analysed the entire evidence, this Court is of

the view that the prosecution could prove its case beyond all reasonable

doubt regarding commission of the offence U/S. 392 of the IPC. Hence,

all the appellants in both the appeals are convicted of the said offence.

Besides the findings, the appellant-Sujit in CRA No.135 of 1996 is

guilty of the offence U/S. 27 of the Arms Act.

16. At this stage, learned counsel for the appellants submitted that the

incident relates back to the year 1992. At the time of commission of the

offence, the appellant- Khira Sahu was 45 years of age whereas appellant

no.2- Dhirendra Behera was 35 years of age. Accused Sujit Kumar

Khuntia was 32 years of age. After lapse of more than three decades,

they are now at a very advanced age. 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, he submitted that a lenient view should be taken while

imposing the sentence.

17. I have perused the records and found that the appellant- Khira

Sahu, has already undergone custody for about 1 year and 7 months,

whereas Dhirendra has already undergone more than 1 year and 6

months. Similarly, accused Sujit Khuntia has also undergone more than

1 and half years in custody. The incident had taken place about three

decades ago. Much water has already flown under the bridge by now.

The appellants have already settled into their lives. Hence, sending them

to the custody at this stage would have a cascading effect on the lives of

the other members of the family. In view of these circumstances, learned

Counsel prayed that the appellants be extended the benefit of Section

360 of the Code of Criminal Procedure and/or the Probation of the

Offenders Act, 1958, considering the nature of the offences, the long

passage of time, and their personal circumstances.

Accordingly, in the light of the foregoing discussion, the

convictions against all the appellants are modified to that of the offence

punishable under Section 392 of the IPC and sentencing them to undergo

R.I. for 3 years each. Besides that, in so far as the appellant-Sujit is

concerned, since he is additionally convicted for the offence under

Section 27 of the Arms Act, his sentence of three years as awarded by

the learned trial Court is upheld. Both sentences are directed to run

concurrently. However, at this belated stage, it would not be appropriate

to send them to serve the remaining sentence owing to the long passage

of time, age of the appellants and that the appeal has been pending

before this Court since 1995. Apt would be to place reliance upon the

Judgement of the Hon'ble Supreme Court in Chellammal and Another

v. State represented by the Inspector of Police1 wherein the Apex Court

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 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

2025 INSC 540

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."

18. Regard being had to the aforementioned proposition of Law, the

facts of the present case, particularly the long lapse of time since the

occurrence, the absence of criminal antecedents of the appellants, the

senescence 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

numerous decisions of this Court cited at the Bar 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 contemplated under Section 4 of the Probation of

Offenders Act.

19. Hence, instead of sentencing them to imprisonment, this Court

directs that the appellants be released under Section 4 of the Probation of

Offenders Act, 1958, for two years upon their executing a bond of

Rs.5,000/- (Rupees Five Thousand) each within one month with one

surety each for the like amount, to appear and receive sentence when

called upon during the said period and, in the meantime, to maintain

peace and good behaviour. The appellants shall remain under the

supervision of the concerned Probation Officer during the said period.

Although the benefit of Section-4 of the Probation of Offenders Act is

extended to the appellants, but in order to strike the balance for the

penological purpose, the appellants are also liable to pay compensation

as per Section-5 of the P.O. Act.

20. Accordingly, each of the appellants are liable to pay sum of

Rs.10,000/- (Rupees Ten Thousand) in terms of Section-5 of the P.O.

Act. The fine amount, to be deposited, shall be disbursed to the victim or

his/her legal heirs. The compensation amount as awarded shall be

deposited by the appellants within a period of one month.

21. Accordingly, both the Criminal Appeals stand partly allowed.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack Dated the 17th Day of March, 2026/Subhasis Mohanty

Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack.

Date: 19-Mar-2026 15:31:55