Nanda @ Pradeep Kumar Swain vs State Of Orissa
2026 Latest Caselaw 2519 Ori

Orissa High Court

Nanda @ Pradeep Kumar Swain vs State Of Orissa on 17 March, 2026

        THE HIGH COURT OF ORISSA AT CUTTACK

                       CRA No. 171 of 1999

(In the matter of an application under Section 374 (2) of the Criminal
Procedure Code, 1973)


Nanda @ Pradeep Kumar Swain           ......                Appellant

                                 -Versus-

State of Orissa                .......                     Respondent

For the Appellant : Mr. Kamalakanta Sethi, 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 Criminal Appeal is directed against the

judgment of conviction and order of sentence dated 02.07.1999

passed by the learned Additional Sessions Judge, Jajpur in S.T. No.

668 /48 of 1997 [arising out of G.R. Case No. 97(A)/95], whereby the

learned trial court convicted the appellant under Section 324 of IPC and sentenced him to undergo R.I. for one year and to pay a fine of

Rs.1,000/-, in default to undergo R.I. for three months.

2. Heard Mr. Kamalakanta Sethi, learned counsel for the appellant

and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for

the State.

3. The prosecution case, in nutshell, is that on 01.02.1995

morning the informant, P.W.1 got information that his son Daria had

been murdered. Getting the information, he came to the spot and

found his son Daria was lying dead by the side of a half constructed

house near the house of Babaji Swain. A chadar had been put around

his neck. The informant got the information from one Bipin Malik

(P.W.2) of his village that on the previous night accused Pradip Swain

@ Nanda asked the deceased Daria to pay him Rs.20/-. But, when

Daria refused to pay, the accused injured Daria on the thigh by a knife

and threatened him that if Daria would not pay the money, the

accused would kill him. After reporting this incident to some other

people present in the locality, Daria went to the house of the accused

to complain before his parents. While Daria was proceeding to the

house of the accused, the latter chased him in angry mood and in the

next morning Daria was found lying dead. The informant suspected

that accused Pradip Swain and his father Babaji @ Brajakishore

Swain, in furtherance of a common intention had killed Daria.

4. On the basis of the written report of the informant (P.W.1),

police registered the case and investigation was conducted and charge

sheet has been filed in the present case against the accused for the

alleged commission of offence u/s.302 of I.P.C. The accused took a

stance of complete denial and claimed trial. Accordingly, he was put

to trial on the charge, as mentioned above.

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

as many as ten witnesses and exhibited four documents. Out of ten

witnesses, P.W.1 is the informant; P.Ws.2, 3 and 5 were the witnesses

to the occurrence that the accused demanding money to the deceased

and causing bleeding injury on the thigh; P.W.4 was a witness to the

inquest; P.Ws.6, 7 and 8 were examined to prove the motive of the

accused; P.W.9 was the medical officer, who examined the dead body

and P.W.10 was the I.O. of the present case.

6. The learned trial court after analyzing the evidence on record in

paragraph-10 of the judgment held as under:-

"10. So, the first conduct does not lead to the inference that it was the accused who assaulted the deceased in order to kill him. As regards the conduct at the house of the accused, as I have already stated that P.Ws.3 and 5 heard a quarrel, but did not see what happened in course of the quarrel. P.W.2 alone saw the accused and his father manhandling the deceased. The learned Public Prosecutor strenuously argued that the fact manhandling of the deceased would show that the father and the son, with a view to driving away the deceased from their home, pushed and assaulted the deceased and in all probability, in so doing the present accused might have dealt severe fist blows on the abdomen and the chest of the deceased which resulted in the latter's death. This is too far-fetched a conjecture to make presumptions as suggested by the learned Public Prosecutor. The eyewitness, P.W.2, has not seen the actual assault. The learned counsel for the defence argued with reference to the evidence that it was impossible for P.W.2 to see anything happening near the house of the accused while one was proceeding on the public read. So, P.W.2 is not at all a dependable witness. Accepting for the time being that all that P.W.2 has stated is true, would it at all be possible for anybody to say that it was the accused who dealt fatal blows on the abdominal area of the deceased. The answer to the question will be:- it cannot be. In the FIR(Ext.1) it is stated that the informant (P.W.1) suspected Babaji Brajakishore Swain and his son Pradip Swain had killed Daria. If the suspicion is such, then obviously two persons together must have caused the death by assault. So, whether the accused dealt blows which killed Daria or whether his father Babaji @ Brajakishore Swain dealt the death blow is again a question of dilemma. After investigation the charge sheet was filed against both the accused persons for charge u/s. 302/34 I.P.C. Obviously it would mean that both the accused persons in furtherance of a common intention had dealt fatal blows resulting in the death of Daria. But, it will be worthwhile to note that my learned predecessor while trying Babaji @Brajakishore Swain in S. T. 367/14 of 1995 found that there was no conclusive proof to establish the guilt of the accused. So, he acquitted accused Babaji @ Brajakishore Swain. Of course the findings and the evidence in ST 367/14 of 1995 cannot be used for any purpose in the present case, but my aim is to say that when two persons in a joint action are alleged to have caused the death of the deceased and one of them is acquitted for insufficient evidence, could it be

possible to hold the other one guilty on the evidence which is indefinite as to who out of the two dealt the fatal blows on the person of the deceased? A doubt comes into play."

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

dated 02.07.1999 passed by the learned trial court, the appellant has

filed the present appeal.

8. Initially, the police has filed charge sheet against two accused

persons, namely, the present appellant and his father Babaji @

Brajakishore Swain. During investigation, the father of the present

appellant was apprehended, therefore the police forwarded him and he

was put to trial for the alleged commission of offence under Section

302 IPC. The present appellant successfully avoided arrest; therefore

the police filed the charge sheet showing him as an absconder. In the

split up trial, the co-accused Babaji @ Brajakishore Swain has been

acquitted by the learned trial court in S.T. No. 367/14 of 1995. After

the acquittal judgment passed in favour of the father of the appellant,

the appellant appears to have surrendered before the court on

05.08.1996. The Addl. Sessions Judge, Jajpur vide order dated

09.08.1996 enlarged the appellant on bail. He stood charged for the

offence under Section 302 of IPC and on his stance of complete

denial and claim for trial; he was put to trial in S.T. No. 668/48 of

1997. The learned trial court analyzed the evidence of the eye

witnesses P.Ws.2, 3 and 5 and by drawing corroboration from the

evidence of the doctor P.W.9 arrived at the conclusion that the

appellant is guilty of offence under Section 324 of IPC, however

acquitted him of the charges under Section 302 of IPC.

9. After seeing the evidence of P.Ws.2, 3 and 5 conjointly, it is

clear that the present appellant has dealt a knife blow on the left thigh

of the deceased. All the three witnesses without any variation have

narrated the occurrence exactly in the similar way. It is true that none

of them have seen the incident happened after the present appellant

inflicted knife blow to the deceased. Therefore, from the evidence of

the three eye witnesses it could only be ascertained that the present

appellant had altercation with the deceased by demanding Rs.20/- and

since the deceased refused to pay the money, the present appellant

pierced a knife on the left thigh of the deceased causing simple injury.

P.W.9 was the doctor who has deposed that the death of the

deceased was caused due to the rapture in liver, kidney and spleen.

The rapture could not have been caused by the injury resulted due to

overt act attributed to the appellant. That's precisely the reason the

learned trial court has rightly arrived at a conclusion that the

prosecution could not prove the case beyond all reasonable doubt in

so far as the charge under Section 302 of IPC is concerned. However,

since the evidence is crystal clear regarding the infliction of injury by

the appellant on the left thigh of the deceased by using a knife which

has been confirmed and corroborated by the evidence of the doctor

(P.W.9), the appellant was rightly found guilty of the charges for

offence under Section 324 of IPC.

10. In view of the unshaken and trustworthy evidence of the eye

witnesses and the doctor who has examined the deceased and the

other corroborative medical evidence brought on record by the

prosecution, this Court finds that the learned trial court has rightly

convicted the appellant for the offence, as mentioned above.

Therefore, no interference is called for in so far as the conviction is

concerned.

11. At this stage, learned counsel for the appellant has submitted

that the appellant at the time of incident was about 32 years of age

and at present he is about 62 years. The incident relates back to the

year 1995. The appellant has been convicted vide judgment dated

02.07.1999 and the appeal is pending since 1999. He further

submitted that over the years, he has led a dignified life, integrated

well into society, and is presently leading a settled family life.

Incarcerating him 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 him but also upon his family

members, especially when there is no suggestion of any repeat

violation or ongoing non-compliance with regulatory norms.

Therefore, the appellant may be treated under the Probation of

Offenders Act, particularly because of short sentence awarded by the

learned trial court.

12. The record reveals that the incident relates back to the year

1995 and at that point of time the appellant was 35 years of age. He

has been convicted by the impugned judgment and order dated

02.07.1999. The present appeal is pending since 1999 and at present

the appellant is about 62 years of age. Therefore, the prayer made by

Mr. Mishra, learned Amicus Curiae for the appellant for extending the

benefit of the P.O. Act deserves merit to be considered.

13. 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

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.

2025 INSC 540

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 appellant and the overall circumstances emerging

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

the appellant 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

2012 (Supp-II) OLR 469

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 appellant the benefit contemplated

under Section 4 of the Probation of Offenders Act.

14. 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 appellant to suffer imprisonment, this Court directs the

appellant to be released under Section 4 of the Probation of Offenders

Act for a period of one year on his executing bond of Rs.5,000/-

(Rupees Five Thousand) within one month with one surety for the

like amount to appear and receive the sentence when called upon

during such period and in the meantime, the appellant shall keep

peace and good behavior and he shall remain under the supervision of

the concerned Probation Officer during the aforementioned period of

one year.

2007 (Supp.II) OLR 250

Although the benefit of Section 4 of the P.O. Act has been

extended to the appellant for the reasons stated in the penultimate

paragraph of this judgment, still the appellant is liable to pay

compensation of Rs.10,000/- (rupees ten thousand) under Section 5 of

the P.O. Act to be paid to the parents of the deceased/victim within

one month hence.

15. 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