Bansidhar Palei vs State Of Orissa
2026 Latest Caselaw 2517 Ori

Orissa High Court

Bansidhar Palei vs State Of Orissa on 17 March, 2026

         THE HIGH COURT OF ORISSA AT CUTTACK

                         CRA No. 46 of 2002

(In the matter of an application under Section 374 (2) of Criminal
Procedure Code)


1. Bansidhar Palei
2. Bijay Kumar Sahu
3. Biranchi Khatei
4. Naba @ Nabakishore Khatei     .......                    Appellants


                               -Versus-

State of Orissa                  .......                    Respondent

For the Appellants : Mr. L.N. Rayatsingh, Advocate

For the Respondent : Mr. Sobhan Panigrahi, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 12.03.2026 : Date of Judgment: 17.03.2026

S.S. Mishra, J. This appeal is directed against the judgment of

conviction and order of sentence dated 04.02.2002 passed by the learned Special Judge, Puri in T.R. No. 37 of 1996, whereby the appellants are

convicted for offence punishable under Sections 354/294 of IPC read

with Section 3(1)(xi) of S.C. & S.T. (PoA) Act and they were sentenced

to undergo S.I. for one month for the offence under Section 294 of IPC,

S.I. for three months for the offence under Section 354 of IPC and SI for

six months for the offence under Section 3(1)(xi) of S.C. & S.T. (PoA)

Act.

2. Heard Mr. L.N. Rayatsingh, learned counsel for the appellants and

Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the

State.

3. The prosecution case, in brief, is that on 28.05.1994 at about noon

at village Srikarpur accused persons Bauri and Bina did not allow

Kumari Sethi to take water from the tube well in front of the temple of

deity Basantei. Accused persons Bijaya, Biranchi, Bansi and Naba

scolded Kumari Sethi, Dhani Sethi and Menaka Sethi abused in filthy

language throwing their pitchers and outraged their modesty trying to

pull out their wearing apparels and all the accused persons armed with

lathies surrounded Sethi Sahi, pelted stones at the houses of residents of

Sethi Sahi causing damage to their houses and also causing injuries on

some persons of the Sahi and decamped with agricultural implements

and coconuts worth of Rs 6,000/-.

4. On the basis of the written report of the informant, police

registered the case and investigation was conducted and charge sheet has

been filed in the present case against the accused persons for the alleged

commission of offence u/s.354/294/34 read with section 3(i)(xi) of S.C.

& S.T. (PoA) Act. The accused persons took a stance of complete denial

and claimed trial. Accordingly, they were put to trial on the charges, as

mentioned above.

5. The prosecution in order to bring home the charges examined as

many as ten witnesses out of seventeen charge sheeted witnesses and

exhibited eight documents. Out of ten witnesses, P.W.6, who is one of

the victim is the informant; P.Ws.1, 2, 4 and 5 are the other victims;

P.Ws.3 and 7 were the independent witnesses; P.W.10 was the doctor

who has examined the injured persons and P.Ws.8 and 9 were the two

I.Os. of the present case.

6. Initially, eighteen accused persons were charge sheeted for the

offence, as mentioned above. After the trial, the present four appellants

have been convicted and sentenced accordingly. The learned trial court

has emphasized on the evidence of P.Ws.1 to 5, those who are the victim

witnesses to draw corroboration with the evidence of the official

witnesses. The learned trial court also relied upon the evidence of

P.Ws.8, 9 and 10. By analysing the evidence of all the prosecution

witnesses, the learned trial court arrived at the following conclusion:-

9. On alleged use of obscene word and out-raging the modesty it is the F.I.R. story that at that hour at the spot while Kumari, Dhani and Menaka had been to collect water from the tubewell accused persons Bauri and Bina did not allow Kumari to collect water and accused persons Bijaya, Biranchi and Naba reaching there scolded them, the harijan ladies in filthy language and outraged their modesty touching their wearing blouse and saree. This F.I.R story has been echoed in the evidence of P.W.1 which is that at the fateful hour while she and two other ladies of their Sahi namely Dhani & Menaka were collecting water from the tubewell in question installed by the Govt.

accused persons Bauri and Bina belonging to the

general caste did not allow her to take water, there was tussle between the two groups and accused Bijaya and others abused her in filthy language saying:" BEDHA DHOBANI MANANKAR MUHAN BESI BADHIGALANI TO IJAT NABU" and manhandled her by pulling her garments. This evidence of P.W.1 on use of obscene words has received corroboration from the evidence of P.W.5 which is that at the relevant hour at the spot accused persons Bina and Bauri did not allow P.W.1, Menaka and Dhani to fetch water from the tube- well, there was altercation between them and accused persons Bijaya, Biranchi, Bansidhar and Naba rushed to the spot, threatened P.W.1 and her companions abusing them in obscene language hurling aspersion on their caste. Of course this witness has not given the verbatim of obscene words hurled at -P.W.1 but that may be due to his examination in the Court more than 5 years after the alleged incident. It may by noted here that the exact abuse is also not in the F.I.R Ext.1. But F.I.R is not the encyclopaedia of the occurrence and for that such omission is not detrimental to the case of the prosecution and more so when the informant has not been taken above as an eye witness. On this occurrence P.W.2 is to be taken not an eye witness even though it is in her evidence that there was trouble near the tube-well at the relevant hour and P.W.1, Dhani and Menaka returned without water when she has admitted to have remained inside her house closing the doors when accused persons coming to the tube- well shouted at their female folk. On the score it is the evidence of P.W.4 that at that hour at the spot accused persons Bina and Bauri did not "allow P.W.1, Dhani and Menaka to take water from the tube-well; on protest by P.W.1 there was altercation and other accused persons arrived who manhandled the three schedule caste ladies. Non-speaking of verbatim of the

obscene words by this witness would also to not cloud down his credibility when he has been brought to witness box more than four years after the alleged 'incident. Evidence of P.W.1 on outraging of her modesty has found support from the evidence of P.W.4 which is that in course of manhandling P.W.1 other accused persons pulled her wearing apparels which were torn and of P.W.5 that accused persons Bijaya, Biranchi, Bansidhar and Naba manhandled P.W.1 and her companions. It may be noted here that in face of this cemented evidence non-examination of victims Dhani and Menaka not to cost the prosecution. So from above it is deduced that at the fateful hour at the spot near the tube-well accused persons Bijaya, Biranchi, Bansidhar and Naba scolded P.W.1 and her companions in filthy language, hurled aspersion on their caste and outraged their modesty manhandling them.

10. The I.O. P.W.8 has breathed all about investigation, registration of police case on receipt of Ext.1 vide endorsement Ext.1/2, investigation of the case by him, preparation of spot map Ext. 2, seizure of broken pieces of bricks and asbestos and pieces of stones from the spot under seizure list Ext.3, and sending of injured persons for medical examination on police requisition. P.W.9 the other I.O. has breathed about submission of charge sheet.

11. It is felt not necessary to scan the evidence on the other prosecution allegations of brick batting by the accused persons resulting injuries to some persons and commission of theft by theM when the accused persons are not facing charge against those offences.

12. It may be mentioned that even though the defence plea is straight denial one, it has been suggested to P.Ws.4 & 5 that since the accused persons discontinued the service of Sethi Sahi persons as their washermen they have been roped in this false case. It is in the cross-examination of P.W.4 that there was no dispute between them and the accused persons which has been contradicted by P.W.5 in his cross-

examination. This discrepant evidence speaks of prior enmity between the parties and here it has cut throat of the accused persons."

7. Aggrieved by the aforementioned finding, which led to the

conviction and sentence of the appellants, the present appeal has been

filed.

8. Learned counsel for the appellants, at the outset, submitted that he

would not press this appeal challenging the conviction recorded by the

learned trial court, however confined his argument to the quantum of

sentence. He further submitted that since the minimal sentence of three

months has been awarded against the appellants, this Court may consider

extending the benefit of the Probation of Offenders Act.

9. This appeal is pending since 2002. The incident relates back to the

year 1994. The appellants have been convicted by the impugned

judgment and order dated 04.02.2002 and the appellants are at the

advance age. Therefore, the prayer made by learned counsel for the

appellants deserves merit to be considered. However, the only question

to be considered to entertain the prayer of the learned counsel for the

appellants is that whether the benefit of the Probation of Offenders Act

could really be extended to the appellants, who have been convicted for

offence under Section 3(1)(xi) of S.C. & S.T. (PoA) Act. Therefore, this

Court intended to delve upon the merits of the case so as to ascertain

whether the conviction recorded by the learned trial court for offence

under Section 3(1)(xi) of S.C. & S.T. (PoA) Act is sustainable on the

face of the evidence on record or not.

10. While embarking upon the said issue, I find that after investigation

in the present case charge sheet has been filed by P.W.8 on 10.10.1995.

It is noteworthy to mention that Rule-7 of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Rules, 1995 came into force

on 31.03.1995 mandating that every offence committed under the said

Act shall be investigated by an officer not below the rank of a Deputy

Superintendent of Police. I have also perused the evidence of P.W.8,

who in his testimony stated that on 29.05.1994 he was posted as S.I. of

Police of Brahmagiri P.S. and after registration of FIR (Ext.1) given by

the informant Aparti Sethi (P.W.6) of village Srikarpur of Brahmagiri

P.S. The O.I.C. of the Police Station has entrusted him to investigate the

case and accordingly he proceeded with the investigation and eventually

filed the charge sheet in the case on 10.10.1995. The record reveals that

the entire investigation has been handled by P.W.8, who is an officer not

of the rank of Deputy Superintendent of Police. Therefore, on the ground

of non-compliance of the statutory safeguard as contemplated under

Rule-7 of the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Rules, 1995, it can be safely concluded that the entire

investigation vis-à-vis the offence under Section 3(1)(xi) of S.C. & S.T.

(PoA) Act has been vitiated. Hence, the appellants are entitled to

acquittal in so far as the said offence is concerned.

In view of the aforementioned, this Court comes to the conclusion

that the appellants are entitled to acquittal of the charges under Section

3(1)(xi) of S.C. & S.T. (PoA) Act on the sole ground of non-compliance

of statutory procedural safeguard by the prosecution under Rule-7 of the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)

Rules, 1995.

11. Since S.I. for six months has been imposed on the appellants, in

lieu of their conviction under Section 3(1)(xi) of S.C. & S.T. (PoA) Act,

the said order of sentence is also liable to be set aside.

12. After the aforementioned findings recorded by this Court

acquitting the appellants of the offence under S.C. & S.T. (PoA) Act, the

judgment of conviction and order of sentence passed by the learned trial

court for the offence under Sections 354/294 IPC remains and in lieu of

said conviction, the appellants are sentenced to undergo one months and

three months S.I. respectively. Hence, there is no legal embargo to

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

In view of the aforementioned, the submission made by learned

counsel for the appellants seeking grant of benefit under the Probation of

Offenders Act deserves merit to be considered.

13. Upon scrutiny of the evidence and the findings recorded by the

learned trial Court, this Court finds no perversity or illegality in the

appreciation of evidence insofar as the offence under Sections 354/294

IPC are concerned. The conclusions arrived at by the learned trial Court

with respect to the offences under Sections 354 and 294 I.P.C. are based

on proper evaluation of the materials on record and do not warrant

interference. Accordingly, the conviction under the said provisions are

liable to be affirmed.

14. Mr. Rayatsingh, learned counsel for the appellants submitted that

keeping in view the procrastinated judicial process undergone by the

appellants in this case and the ordeal of trial faced by them; he submitted

on the quantum of sentence. He submitted that the incident pertains to

the year 1994. The appellants have undergone the rigors of trial for eight

years. Thereafter, the appeal was preferred in the year 2002. The appeal

has been prolonging to be heard for about 24 years. The appellants are

now at their early fifties and some of them are above sixties, therefore

sending them 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 is 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. Rayatsingh, learned counsel for the appellants on the facts

scenario of the case.

15. 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

2025 INSC 540

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 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 contemplated under Section 4 of the

Probation of Offenders Act.

16. The ratio of the aforesaid decisions, emphasizes the reformative

approach of criminal jurisprudence in cases involving personal disputes

2012 (Supp-II) OLR 469

2007 (Supp.II) OLR 250

and absence of criminal antecedents, is fully applicable to the facts and

circumstances of the present case.

17. 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.

18. Accordingly, the Criminal Appeal is partly allowed.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack Dated the 17th of March, 2026/Ashok

Signed by: ASHOK KUMAR JAGADEB MOHAPATRA

Location: High Court of Orissa