Shyamsundar Majhi vs State Of Orissa
2026 Latest Caselaw 2521 Ori

Orissa High Court

Shyamsundar Majhi vs State Of Orissa on 17 March, 2026

         THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLA No. 359 of 2009

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


Shyamsundar Majhi                     ......                 Appellant

                                  -Versus-

State of Orissa                .......                      Respondent

For the Appellant : Mr. Devi Batsalya Rath, Amicus Curiae

For the Respondent : Mr. Ashok Kumar Apat, AGA

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 26.08.2009

passed by the learned Additional Sessions Judge (FTC),

Bhawanipatna, Kalahandi in Sessions Case No. 86/67 of 2008 [arising

out of G.R. Case No. 184 of 2008 (TR No. 1455 of 2008)], whereby the learned trial court convicted the appellant under Section 324 of

IPC and sentenced him to undergo R.I. for six months.

2. This appeal is pending since 2009 and none appeared for the

appellant on several dates of hearing. Therefore, vide order dated

12.03.2026, this Court requested Mr. Devi Batsalya Rath, who was

present in Court to assist the Court in the capacity of Amicus Curiae

and he has readily accepted the same and after obtaining the entire

record, assisted the Court very effectively.

3. Heard Mr. Devi Batsalya Rath, learned Amicus Curiae for the

appellant and Mr. Ashok Kumar Apat, learned Additional

Government Advocate for the State.

4. The prosecution case, in brief, is that on 09.04.2008 at about

9.30 P.M. while the injured Bhismarathi Bag was watching T.V. at

Lucky Hotel in front of his house, the accused came there and stabbed

a knife to his belly. Fortunately while the accused was stabbing, the

injured could catch hold of the hands of the accused for which he did

not sustain deep cut injury on his belly. The injured then snatched

away the knife from the hands of the accused. Thereafter, the accused

fled away from the spot. It is further alleged that earlier to this

incident the brother of the accused had also assaulted him and the

matter was amicably settled between them.

5. 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 for the alleged

commission of offence u/s.307 of I.P.C. The accused took a stance of

complete denial and claim trial. Accordingly, he was put to trial on

the charge, as mentioned above.

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

as many as nine witnesses and exhibited nine documents. Out of nine

witnesses, P.W.1 is the brother of the injured and also an eye witness

to the incident; P.W.2 was the owner of the hotel where the incident

took place and also an eye witness; P.W.6 was one of the post

occurrence witness; P.W.3 was the seizure witness; P.W.4 was the

medical officer; P.W.7 was also another medical officer, who had

admitted the injured; and P.Ws.8 and 9 were the I.Os. of the present

case.

7. Although the appellant stood charged for the offence

punishable under Section 307 of the IPC, but the learned trial Court

relying upon the evidence of the prosecution, arrived at a conclusion

that the appellant is not guilty of offence punishable under Section

307 of IPC and the appellant is only convicted under Section 324 of

IPC and was sentenced to undergo R.I. for six months.

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

dated 26.08.2009 passed by the learned trial court, the appellant has

filed the present appeal.

9. After analysing the evidence on record, the learned trial court

arrived at the following conclusion:-

"12. In taking all probable caution while apprising the evidence of P.W.5 with reference to the entire mosaic facts appearing on record, I am clearly of a view that he is truthful and credit worthy and his evidence un-mistakely connects the accused with the commission of the crime .i.e. he stabbed a knife to the belly of the injured.

13. Now I have to find out whether the accused can be convicted for the offence under section 307 I.P.C.

In the instant case as per the evidence so far proved, the accused stabbed a knife into the belly of the injured and then he fled away from the spot. As per the medical report the injury is simple in nature and is not fatal and superficial in nature. It is also found from the medical evidence that the weapon was not forcibly stabbed. Accordingly in my view the accused cannot be held to have an intention to cause the death of the injured. Accordingly I do not held the accused guilty for the offence under section 307 of I.P.C. As in the instant case, the accused stabbed the injured to his belly

with a knife causing simple injury on his person, I hold the accused guilty for the offence under section 324 of I.P.C.

14. In the result, the accused is found not guilty for the offence under section 307 of I.P.C and he is acquitted thereunder. However the accused is found guilty for the offence under section 324 of I.P.C and he is convicted thereunder."

10. The learned trial court heavily relied upon the evidence of the

injured witness (P.W.5) and the eye witness to the occurrence

(P.W.1). Their testimony stood corroborated with the evidence of

doctor (P.W.4) and medical report/injury report Ext.2 and 2/3. The

version of the post occurrence witness (P.W.6) also lend support to

the prosecution case. Therefore, the learned trial court while

appreciating all the evidence and attending circumstances arrived at

the conclusion that the prosecution could only prove its case to bring

home the charge under Section 324 of IPC. Looking into the intensity

of the injury caused by the appellant and the force applied while

inflicting the injury, the trial court rightly ruled out the intention of

the appellant not to cause such injury which would result in the death

of the victim. This Court totally conscious with the reasoning

recorded by the learned trial court in appreciating the evidence, hence

not inclined to interfere with the judgment of conviction.

11. At this stage, Mr. Rath, learned Amicus Curiae for the appellant

submitted that keeping in view the procrastinated judicial process

undergone by the appellant in this case and the ordeal of trial faced by

him; he would rather confine his argument to the quantum of

sentence. He submitted that the incident pertains to the year 2008.

The appellant has undergone the rigors of trial for more than one year.

Thereafter, the appeal was preferred in the year 2009. The appeal has

been prolonging to be heard for more than 16 years. The appellant

who was in his early thirties then is now is aged about fifty years and

therefore, sending him to custody for fulfilling his remaining sentence

at this belated stage would serve no purpose. The learned Counsel

further submitted that the appellant has no criminal antecedents, and

no other case of a similar nature or otherwise is stated to be pending

against him. 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, in the fitness of situation, the appellant may be extended

the benefit of Probation of Offenders Act read with Section 360

Cr.P.C. I am inclined to accede to the prayer made by Mr. Rath,

learned Amicus Curiae for the appellant on the facts scenario of the

case.

12. 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

2025 INSC 540

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 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

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.

13. 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 six months 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

six months.

2012 (Supp-II) OLR 469

2007 (Supp.II) OLR 250

Although the appellant has been extended the benefit of Section

4 of the Probation of Offenders Act for the reason stated in the

penultimate paragraph of this judgment, but still the appellant is liable

to pay Rs.5000/- (rupees five thousand) as compensation to the victim

under Section 5 of the P.O. Act within one month hence.

14. Accordingly, the Criminal Appeal is partly allowed.

15. This Court records the appreciation for the effective and

meaningful assistance rendered by Mr. Devi Batsalya Rath, learned

Amicus Curiae. He is entitled to an honorarium of Rs.7,500/- (Rupees

seven thousand five hundred) to be paid as token of appreciation.

(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