The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.241 of 2010 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Anil Pradhan and others ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. D.P. Dhal, Senior Advocate For the Respondent : Mr. Sarathi Jyoti Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 07.08.2025 : Date of Judgment: 19.08.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants under Section 374(2) of the Cr.P.C., is directed against the judgment and order dated 10.05.2010 passed by the learned Special Judge –cum- Addl. Sessions Judge, Sambalpur in S.T. No. 76/34 of 2009, whereby the
Legal Reasoning
learned trial Court has convicted the accused-appellants for the offences punishable under Section 323/34 of the Indian Penal Code, 1860 (hereinafter ‘the Code’ for brevity) additionally accused-appellant No.3 has also been convicted U/s 354 of the Code along with the aforementioned provisions of law. Accordingly, all the appellants are sentenced to undergo R.I. for two months, and accused appellant No.3 to further undergo R.I. of four months for offence U/s.354 of the code. 2. The prosecution case, in brief, is that on 27.08.2007, the informant, Umakanta Kalta, lodged a report at Rairakhol Police Station alleging that on 26.08.2007, at about 4:00 PM, while he was grazing cows near Shyamsundar Dhaba, forest officials seized some teak wood from the spot. Thereafter, the accused persons arrived and assaulted the informant, hurling filthy abuses with reference to his caste. On the following day, the accused persons allegedly came near the informant’s house, assaulted his wife, threatened to kill him, and further outraged the modesty of his wife. Based on the report, Rairakhol P.S. Case No. 80 dated 27.08.2007 was registered, and after investigation, a charge-sheet was filed against all the accused persons. All the three accused persons were charged under Sections 341/323/294/354/506/34 of the IPC and Page 2 of 10 Sections 3(1)(x)/3(1)(xi) read with Section 6 of the S.C. & S.T. (P.A.) Act. They pleaded not guilty to the charges, denied the allegations, so, were accordingly put to trial. 3. To prove the charges, the prosecution examined 11 (eleven) witnesses and exhibited 4 (four) documents. P.W.1 was the informant, P.W.2 is his wife, P.W.3, Sara Kalta, was a co-villager of the informant, P.W.4 was the Grama Rakshi, P.W.5 is the husband of P.W.3, P.W.6 was another co-villager of the informant, P.W.7 was the Medical Officer, P.W.8 was a forest personnel, P.W.10 was the Grama Rakshi and a seizure witness, and P.W.11 was the Investigating Officer. Among the exhibits, Ext.1 is the F.I.R., Ext.2 is the seizure list, and Ext.4 is the letter of the R.I. regarding the caste particulars of the victim and the accused persons. 4. From the impugned Judgement of the learned Trial Court it is clear that the court below gone deep into the case, and dealt with each and every evidence on record in detail, relevant part of which is reproduced herein for ready reference:- Page 3 of 10 “10. From the prosecution case it appears that the occurrence took place in two phases. First, at Shyamsundar Dhaba on 26-08-2007 where the accused persons have allegedly assaulted P.W.1 and secondly, on 27-08-2007 at 2 PM near the cow-shed of P.W.3 where the accused persons have abused P.W.2 and outraged her modesty. From the evidence of P.Ws.1 arid 2 who are the respective victims of the said two occurrences, it is admitted that during the occurrence on 26-08-2007 P.W.2 was not present at the spot whereas during the second occurrence on 27-08-2007 P.W.1 was not present at the spot. 11. In respect of the first occurrence which took place on 26-08-2007 at about 4 PM near Shyamsundar Dhaba at Kutasingha, P.W.1 has said that after the forest personnels seized some teak and Sal woods, the accused persons came there and assaulted him by means of a stick and abused him in filthy languages. This evidence is not supported by any other independent witnesses and except P.W.1 no body has said to have seen the said occurrence. P.W.6 has said that he has a betel shop near that spot and he has heard hullah and crying of P.W.I at that time. P.W.6 has further said that he saw P.W.1 went to his house crying. 12. P.W.7 is the medical officer. P.W.7 in his evidence has said that on 26-08-2007 on police requisition he examined P.W.1 and found following injuries on his body:- i) Swelling of size 2½ inch X 2 inch on the back (left side). ii) Bruise of size 2½ inch X 1 inch on the thigh laterally. iii) Abrasion of size 2/3rd inch X 1 inch on the leftear. 13. P.W.7 has opined that the said injuries are simple in nature and could be caused by hard and blunt object and also can be possible by fist blows or by means of stick. The age of the said injuries is within, six hours from his examination. Admittedly, the original injury-report has not been filed in this case. In this regard P.W.11 has said that the original injury-report was missing and the same has been reflected in the case diary. The contention of FIR under Ext.1 also supports this part of evidence of P.W.1 that he was assaulted by means of stick and fist blows. P.W.1 has further said that due to the assault by the accused persons he was feeling pain in his body and he could not able to walk properly.” Page 4 of 10 Further, while categorically dealing mainly with the second incident the learned Court below held thus:- “18. Now coming to the second occurrence which is allegedly took place on the next day i.e. 27-08-2007 near the cow-shed of Sara Kalta (P.W.3) of village Kutasingha, it is seen from the evidence of P.W.1 that he has admitted in his cross-examination that he has not seen the said occurrence. P.W.2 is the victim of the same. P.W.2 has said that when she was standing with P.W.3 near the cow-shed, accused Anil and Khitish came there and abused her saying, GHUDANEI, SAALI BEDHEI BAZARI PALUNI, etc. Thereafter accused Sahadeb Kalta came there and assaulted her pulling her hair and dealt fist blows. Accused Sahadeb Kalta also tore her Saree and blouse and outraged her modesty. P.W.3 in her evidence has said that accused Sahadeb Kalta came there, abused P.W.2 in filthy languages as GHUDANEI SAALI, etc. and pounced upon her. Seeing this she intervened and rescued P.W.2. From the cross-examination of P.W.3 nothing could be elicited from her mouth to disbelieve her evidence. Rather she admitted that both P.W.1 and accused Sahadeb Kalta are her brothers-in-law (DIARA). So there is no reason as to why P.W.3 shall depose falsehood against accused Sahadeb Kalta. P.W.4 is another independent witness and said that at the time of said occurrence he was present at the spot as he had been there to call the accused persons as per the instruction of the O.I.C. P.W.4 has said that he saw that accused Sahadeb Kalta came there and assaulted P.W.2 by pulling her hair and giving fist blows. Similarly P.W.5, who is the husband of P.W.3, has said that when P.Ws.2 and 3 were talking, all the accused persons came there and then accused Sahadeb dragged P.W.2, assaulted her by giving fist blows and also tore her Saree and blouse. So it appears that P.Ws.4 and 5 have supported the version of P.Ws.2 and 3 in relation to the assault made on P.W.2 and outraging her modesty.” Page 5 of 10 5. By appreciating and analyzing the evidence brought on record by the prosecution and taking into consideration the defense plea eventually the learned trial Court recorded the guilt of the appellants by concluding as under: the not has established “26. From the discussions made above, it is clear that the prosecution Charge U/Ss.341/294/506/34, IPC and Secs.3 (1) (x) and 3 (1) (xi) read with Sec.6 of the S.C. & S.T. (P.A.) Act against any of the accused persons and all the accused persons are acquitted from the charges thereof accordingly. Further the prosecution has not established the Charge u/s 354, IPC against accused Anil Pradhan and Khitish Chandra Pradhan and they are acquitted from the said charge. But, all the accused persons namely, Anil Pradhan, Khitish Chandra Pradhan and Sahadeb Kalta are found guilty for the offence u/s 323/34, IPC and accordingly, they are convicted there under. In addition to that, accused Sahadeb Kalta is also found guilty for the offence u/s 354, IPC and is convicted thereunder.” 6.
Legal Reasoning
Heard Mr. D.P. Dhal, learned Senior Counsel appearing for the appellants and Mr. Sarathi Jyoti Mohanty, the learned Additional Standing Counsel for the State. 7. Although the appellants stood charged for the offence punishable under Sections 341/323/294/354/506/34 of the Code and Sections 3(1)(x)/3(1)(xi) read with Section 6 of the S.C. & S.T. (P.A.) Act but the learned trial Court relying upon the evidence of the prosecution, arrived Page 6 of 10 at a conclusion that the appellants are guilty of offences punishable under Sections 323/34 of the Code, additionally appellant no. 3 is also guilty of offence U/s.354 of the Code In lieu of the conviction under Section 323/34 of I.P.C., the appellants were sentenced to undergo R.I. for two months, further only appellant no.3 was sentenced to undergo R.I. of additional four months for offence U/s. 354 of the Code. The appellants have now preferred the present appeal under Section 374(2) of Cr.P.C. assailing the judgment of conviction and order of sentence dated 10.05.2010 passed by the learned Special Judge –cum- Addl. Sessions Judge, Sambalpur in S.T. No. 76/34 of 2009. For ready reference, Section 374(2) of Cr.P.C. reads as under:- “(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other court in which a sentence of imprisonment for more than seven years [has been passed against him or against any other person convicted at the same trial], may appeal to the High Court” Reading of the above provision makes it clear that the present appeal on the set of available facts is not maintainable. 8. This Court is alive to the aforementioned statutory position of law. However, taking into consideration the facts that the incident relates Page 7 of 10 back to the year 2007 and the trial went on for about three years to only end up on 10.05.2010 and the appeal had been pending since 2010 onwards, this Court is not inclined to knock out the appeal on the technical ground as mentioned above particularly for the reasons that the learned trial Court by a deep analysis of the evidence brought on record has found the appellants guilty of the offences as mentioned above. 9. While analyzing the evidence on record, I find no reason to disagree with the findings written by the learned trial court, hence, I affirm the conviction recorded against the appellants for the offence under Section 323/34 of the Code additionally U/s.354 of the Code against Appellant No.3. 10. At this stage, Mr. Dhal, learned Senior Counsel for the appellants submitted that the appellants have already faced the ordeal of trial for three years and the appeal has been pending for the last fifteen years. Therefore, they may not be sent to custody to serve out the short sentence at this belated stage. The incident relates back to the year 2007. He submitted that, over the years, they have led a dignified life, integrated well into society, and is presently leading a settled family life. Page 8 of 10 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. Dhal, learned senior Counsel for the appellants on the facts scenario of the case. 11. Regard being had to the societal position of the appellants, clean antecedents and the fact that the incident had taken place in the year 2007, I am of the considered view that the appellants are entitled to the benefit of the Probation of Offenders Act and Section 360 of Cr.P.C. Additionally, the case of the appellants is also covered by ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra1. 1 2012 (Supp-II) OLR 469 Page 9 of 10 12. 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.
Decision
13. With the above observation, the CRLA is accordingly disposed of. The High Court of Orissa, Cuttack. Dated the 19th August 2025/ Ashok (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 21-Aug-2025 10:22:37 Page 10 of 10