The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.450 of 1994 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Chhabilal Behera and another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Karnain Sattar, Advocate For the Respondent : Ms. Subhalaxmi Devi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 22.07.2025 :: Date of Judgment: 31.07.2025 S.S. Mishra, J. The present Criminal Appeal, is filed by the appellants under Sections 374 of the Cr.P.C., assailing the judgment and order dated 25.11.1994 passed by the learned Special Judge -cum- Sessions Judge, Koraput at Jeypore in Sessions Case No.376 of 1993, whereby the
Facts
learned trial Court has convicted the accused-appellants U/s.458/435/380 and 506 of of the Indian Penal Code, 1860 read with Section 34 of the Indian Penal Code and sentenced them to undergo R.I. for one year on each count. 2. The prosecution case, as per the First Information Report, is that Bharat Kumar Naik, a Forest Guard of Jhadanga Beat and a member of the Scheduled Caste (Pana by caste), had on 21.09.1992 accompanied the Forester to village Karnaguda and seized some forest wood. On 23.09.1992 at around 11:00 PM, two persons from village Ghumar allegedly broke into his house, threatened his wife at knife-point demanding the informant’s whereabouts, and further threatened to kill him. They also throttled his wife, who fled in fear. The informant, who was nearby at the time monitoring illegal forest activities, witnessed the accused person Manu of village Ghumar entering his house and removing the forest offence book No. 245, clothes, utensils, and other
Legal Reasoning
relying upon the judgment of this Court in the case of Sudhakar Sahoo and another vrs. State of Orissa, reported in (1996) 11 OCR-505, Chhabi Kandi and others vrs. State of Odisha, reported in (2023) 90 OCR-111 and Smt. Maya Behera vrs. State of Odisha reported in 2024 (II) OLR-733 has submitted that even if this Court is not inclined to interfere with the conviction of the appellants, they may be extended the benefit of the Probation of Offenders Act. He has also submitted that in so far as the appellant No.1 is concerned, he has already undergone the custody for a period of 82 days whereas appellant No.2 has undergone about 12 days custody. Mr. Sattar, learned counsel has pointed out that the incident relates back to the year 1992. At that point in time, the appellant was 32 years of age and the appellant No.2 was 26 years of age. Therefore, at present they are in their 60s. The appellants have already settled in their life and leading a peaceful life in the society. They are well integrated in the society and they have also reformed. He further Page 8 of 10 submits that many changes have already taken place in the life of both the appellants. Therefore, sending them to undergo further custody would not only be harsh but also be detrimental for the entire family. 9. The learned trial Court while convicting the appellants for the offences as mentioned above has imposed a sentence of R.I. for one year on each count, however, no fine has imposed. In so far as the offence under Sections 435/458/380/506 of I.P.C. is concerned, along with sentence mandatory fine is also prescribed under the law. Therefore, I feel it appropriate to impose a fine of Rs.5,000/- (Rupees five thousand) each over and above the sentence of one year R.I. already awarded on each count. 10. Taking into consideration the submission made by the learned Counsel at bar, although I affirm the conviction recorded by the learned trial Court against the appellants under Sections 435/458/380/506/34 of the I.P.C., but think it appropriate to modify the sentence. Considering the entire features of the case, I could have dealt with the appellants under Section 4 of the P.O. Act. The prayer made by the appellants for grant of Probation though holds water but in my considered view, since Page 9 of 10 the appellants have already undergone imprisonment for 82 days and 12 days respectfully. So, injustice would be compounded if I now grant them the treatment under the Probation of Offenders Act. I would, therefore, while affirming the conviction, reduce the sentence to the period they have already undergone. However, I impose a fine amount of Rs.5000/- (Rupees five thousand) each, in default of which the appellants shall undergo Rigorous imprisonment for one month. The fine amount to be deposited shall be disbursed to the victims in accordance with the procedure established under Section 357 Cr.P.C. 11. Accordingly, the CRA is partly allowed. The High Court of Orissa, Cuttack. Dated the 31st of July 2025/ Swarna (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 05-Aug-2025 19:07:11 Page 10 of 10
Arguments
household items. It is further alleged that the accused burnt official records and poured water from an aluminium pot inside the house. The accused persons reportedly threatened to kill the informant for seizing wood and referred to the killing of the officer-in-charge of Motu P.S. as a further threat. After the accused persons left, the informant called some Page 2 of 10 villagers and showed them the scene. It is also alleged that one Bijaya Padhi (subsequently acquitted) had instigated the accused persons to commit the said acts. On the basis of the allegation as mentioned, Bopariguda P.S. Case No.68(10) 1992 dated 23.09.1992 was registered. After investigation, charge-sheet was filed and charges were framed under Sections 458/307/380/435/109 of the I.P.C. read with Section 3(2)(v)/3(1)(x) of the SC & ST (PoA) Act against four accused persons including the appellants. On the stance of clear denial of charges, they were put to trial. 3. To substantiate the case against the accused persons, the prosecution has examined as many as thirteen witnesses. P.W. 1, namely, Krupa Kendu who heard the “hulla” that theft was committed at the house of the informant. P.W.2 was a post-occurrence witness, P.W.6 was a witness to the seizure, and P.W.12 is the Investigating Officer. P.W.7, is the informant, who was an eyewitness. However, a significant number of witnesses, including P.Ws. 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, and 13, have been declared hostile by the prosecution as they did not support the prosecution case. Among them, P.W.13 is the wife of the informant. Page 3 of 10 Apart from the oral evidence, relevant documentary evidence has also been exhibited to support the case. The defence, however, has not examined any witnesses, and the plea taken by the accused persons is one of complete denial. 4. The learned trial Court analysed the oral and documentary evidence on record and concluded that: “9. On a careful scrutiny of the evidence available on record, I find that accused Mana alias Gangadhar Mohanty and Chhabilal Behera committed house trespass in the night of 23-9-92 and committed theft of Forest Offence Book No.245 and also burnt the clothings and other house-hold articles including some official records in the said house and also threatened P.W.13 to kill her and also caught hold of her and to her husband in furtherance of their common intention and being frightened P.W.13 came away to the house of P.W.2. Most of the witnesses including the informant and his wife have been declared hostile by the prosecution, the totality of their evidence proves the above mentioned offences having been committed by accused Mana alias Gangadhar Mohanty and Chhabilal Behera and the evidence of P.W.7 finds corroboration in the evidence of the Investigating Officer –P.W.12 and the seizure lists with regard to the seizure of the articles.” In conclusion, the learned trial Court held the accused-appellants guilty of the charges punishable U/s. 458/380/435/506 read with Section 34 of the Indian Penal Code and sentenced them accordingly. 5. Aggrieved by the aforementioned judgment of conviction and order of sentence passed by the learned Special Judge-cum-Sessions Page 4 of 10 Judge, Koraput at Jeypore, the present Appeal has been preferred by the appellants. 6. Heard Mr. Karnain Sattar, learned Council for the appellants and Mrs. Sarita Moharana, learned Additional Standing Counsel for the State. 7. I have gone through the record, the impugned judgment and the evidence brought on record by the prosecution. The learned trial Court by relying upon the testimony of P.W.7, which draws corroboration from P.Ws.6, 11, 12 and 13 as well as from the seizure list Exts.1, 3 and 6 arrived at the conclusion that the appellants are guilty of offence punishable under Sections 458/435/380/506/34 of I.P.C. The entire analysis of the evidence by the learned trial Court has been succinately summed up in paragraph-7 of the impugned judgment, which reads as under:- “7. On coming to the next points for consideration, P.W.7 has stated that on 21.9.92 he had been to village Karnaguda on official duty. Near the burning ground of that village he found that trees (Sal trees) were being cut by persons of accused Bijaya Padhi without any authority. The Forester and himself seized the wood and a forest case was started. On 23.9.92 he was performing night patrol duty in village Mundiguda and near about places. At about 1 a.m. in the night he returned back to his residence. At his house he heard shouts of two persons coming from inside his house. Seeing him one of them fled away who is Page 5 of 10 accused Chhabilal Behera of Limaguda. Accused Mana Mohanty was inside his house and was shouting" Shala Forest Guard Kuade Gala, Taku Mariba". He also found that accused Mana was collecting the articles of the house and removed them in bundles and was also burning the records and papers of his house. By then his wife had already left the house out of fear and had taken shelter in the house of Ward Member Majhi. He went there and brought his wife to his house and thereafter called the villagers and asked his next door neighbour Kendu Majhi about the occurrence who told that he did not know anything. On the next morning he went to the Range Officer and submitted the written report- Ext.2 wherein his signature is Ext.2/1. He has been declared hostile by the prosecution since he has not implicated the other accused persons and also not deposed with regard to some part of the prosecution case as per the F.I.R. lodged by him. In his cross-examination by the prosecution he admitted that whatever he saw and knew of the occurrence, he narrated it in Ext.2. He also asserts that he was patrolling in the night of 23.9.92 near his house and at 11 PM. he found that two persons came and knocked at his door and he also saw that those two persons entered inside his house and they threatened his wife showing a knife telling "Toro Swamy Kuade Jaichhi, Aji Taku Jeevanare Mari Debu". So saying they throttled his wife and he also saw that out of fear his wife ran away from the house and he saw all the occurrence concealing himself in the bamboo bush near his house and also found that accused Mana removed utensils, clothes and Forest Offence Book No.245 and both Mana Mohanty and Chhabi Behera collected the other official papers from the house and set them on fire and also were telling to murder him as the officer-in-charge of Motu P.S. was murdered and they were also telling that why they seized three cart loads of wood which did not belong to his parents. With regard to the seizure of the half burnt articles and ashes, etc. from his house, he deposed that police came and seized these things and prepared the seizure list-Ext.3 wherein his signature is Ext.3/1. Cn 14.10.92 the police gave the seized stolen articles in his zima as per Zimanama-Ext.4. The Forest Offence Book has been kept in the Range Office at Boipariguda which he took on zima. P.W.13 has narrated that the occurrence took place at 11 p.m. two years back in absence of her husband (P.W.7) when two to three persons forcibly opened the front door of their house and also burnt the papers, caught hold of her. She escaped and went away. She has Page 6 of 10 not named the accused persons who entered inside the house and has also stated not to have identified them but she has corroborated the evidence of P.W.7 with regard to the part of the occurrence without naming the culprits. P.W.12, the Investigating Officer deposes that at the spot he seized one small Dibiri, match box, half burnt clothes, papers, documents and ashes and prepared the seizure list-Ext.3 and on 13.10.92 from the house of accused Manu Mohanty he seized Forest Department Offence Book No.245 as per seizure list-Ext.1/1. On 14.10.92 he arrested accused Chhabilal Behera and on the same day he seized some house- hold utensils in the house of Madhu Gadaba which were stolen from the house of the Forest Guard (P.K.7) and prepared the seizure list- Ext.6 and left the seized utensils in zima of P.W.7 as per Zimanama Ext.4. P.W.11 a Kirana Shop Keeper has stated that on 23.9.92 accused Chhabi came to his shop and purchased Bidi and match box. P.W.6, a witness in the seizure list-Ext.1/1 has deposed that about a year back at about 4 p.e. the A.S.I. seized forest record and took his signature in a paper. He identifies his signature-Ext.1. P.W.1 has stated that about two years back in the night he heard hulla that theft was committed in the house of Forest Guard. He went to his house and found nobody in that house. P.W.2 has also stated that about two years back in the night he had slept in his house. The wife of Bharat knocked at his door. He got up and opened the door. She told that some persons were knocking at her door and she asked him to accompany her to her house. Out of fear he called 2 to 3 others and then they all went to the house of Forest Guard and at that time nobody was present in the house.” In the light of the findings recorded by the learned trial court as reproduced above, I have also examined the evidence and the documents exhibited before the trial Court. I find no reason to disagree with the findings recorded by the learned trial Court. Hence, there is no escape for the present two appellants from the conviction as recorded by the learned Page 7 of 10 trial Court. Therefore, no interference is called for. The conviction is affirmed. 8. At this stage, Mr. Sattar, learned counsel for the appellants by