(1) Baikuntha Barik vs State Of Orissa on 22 May, 2026

Orissa High Court

(1) Baikuntha Barik vs State Of Orissa on 22 May, 2026

         THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLA No. 138 of 2004

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


(1) Baikuntha Barik
(2) Prasanta Barik
(3) Susanta Barik
(4) Ramahari Patra                   .......                Appellants


                               -Versus-

State of Orissa                  .......                    Respondent

For the Appellants : Mr. D.P. Dhal, Senior Advocate,
Assisted by: Mr. Adish Jena, Advocate

For the Respondent : Mr. Jateswar Nayak, AGA

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 14.05.2026 : Date of Judgment: 22.05.2026

S.S. Mishra, J. The present Criminal Appeal is preferred by the

appellants assailing the judgment of conviction and order of sentence
dated 27.04.2004 passed by the learned Addl. Sessions Judge (Fast Track

Court), Balasore in S.T. Case No.5/69 of 2002, whereby the appellants,

though acquitted of the charge under Section 307 of the Indian Penal

Code, were convicted under Sections 341 and 323/34 of the Indian Penal

Code and sentenced to undergo simple imprisonment for one month

under Section 341 of the Indian Penal Code and rigorous imprisonment

for six months under Section 323 of the Indian Penal Code along with a

fine of Rs.500/- each, in default, to undergo further simple imprisonment

for one month, with a direction that the sentences shall run concurrently.

2. Heard Mr. D.P. Dhal, learned Senior Counsel, assisted by Mr.

Adesh Jena, learned Counsel for the appellants and Mr. Jateswar Nayak,

learned Additional Government Advocate for the State.

3. The prosecution case, in brief, is that on 09.10.2001 at about 1:30

P.M., while the father of the informant, namely Golak Behari (P.W.8),

was returning home after completing his carpentry work at Khantapada

Hospital, the accused persons, who had allegedly concealed themselves

near the thatched gate (tati) in front of his house, wrongfully restrained

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him and assaulted him mercilessly by means of thengas. As a result of

such assault, P.W.8 sustained bleeding injuries on his head and other

parts of his body. It is further alleged that the accused persons attempted

to kill him by pressing a thenga against his neck, which caused to lose

consciousness. Believing him to be dead, the accused persons fled away

from the spot. Thereafter, some villagers arrived at the scene and shifted

the injured to Nilgiri Hospital by a trekker. Considering the condition of

the injured to be serious and critical, the doctor at Nilgiri Hospital

referred him to the District Headquarters Hospital, Balasore for better

treatment.

On the basis of the aforesaid allegations, P.W.7 lodged the F.I.R.

before Nilgiri Police Station. Upon registration of the case, the police

took up investigation, conducted necessary seizures, issued injury

requisition, and after completion of investigation, finding prima facie

materials against the accused persons Susanta and Prasanta, submitted

charge-sheet on 08.01.2003. Subsequently, the learned Trial Court, upon

finding sufficient materials against accused Baikuntha Barik and

Ramahari Patra, passed an order under Section 319 of the Cr.P.C.

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arraigning them as accused persons to face trial. Accordingly, all the

accused persons faced the trial.

4. The plea of the accused persons was one of complete denial and

false implication.

5. In order to bring home the charges against the accused persons,

the prosecution examined as many as 10 witnesses and proved

documents marked as Exts.1 to 5. The defence, on the other hand,

neither examined any witness nor exhibited any document in support of

its case. P.W.1 was a seizure witness to the seizure of one lathi. P.Ws.2

and 6 were the doctors, who treated the injured, namely P.W.8. P.Ws.4

and 5 were cited as eye-witnesses to the occurrence. P.Ws.3 and 9 were

the Investigating Officers of the case. P.W.7 is the informant, P.W.8 is

the injured victim, and P.W.10 is the wife of the injured. It appears from

the evidence on record that P.Ws.3 and 4 did not support the prosecution

case during trial and were accordingly declared hostile by the

prosecution.

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6. Upon appreciation of the oral and documentary evidence available

on record and after hearing the submissions advanced by the parties, the

learned trial Court came to hold that the prosecution had failed to

establish the charge under Sections 307 and 326 of the Indian Penal

Code against the accused persons beyond reasonable doubt. However,

the learned trial Court found sufficient materials to conclude that the

accused persons had wrongfully restrained and voluntarily caused hurt to

the injured in furtherance of their common intention and accordingly

convicted them under Sections 341 and 323 read with Section 34 of the

Indian Penal Code. The concluding findings of the learned trial Court are

reproduced herein below:-

“8. In this case, the prosecution has failed to prove that
the accused persons hás tried to kill P.W.8 and for some
supervening circumstances they could not materialised the
intention. Further, the doctor in his examination though
mentioned the injury to be serious does not state that in which
course of nature the injury could have caused death had it not
been intervened in time. So, I do not find any material against
the accused persons to hold them guilty U/s 307 of the IPC.
Hence, the accused persons are acquitted from the charge U/s
307 IPC. There is no opinion regarding grievous hurt nor any
x-ray plate. Hence, they are acquitted U/s 326 of IPC.

9. As discussed earlier, the accused persons restrained
P.W.8 and assaulted. Hence, I found they guilty of the offences

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U/s 341 and 323 of the IPC read with Sec. 34 IPC. As there is
admitted injury on the head and it was a premeditated assault,
I do not feel it proper to extend the benefit of provision U/s
360 of the Cr.P.C. Hence, I convict and direct the accused
persons to undergo Simple Imprisonment for one month U/s
341 IPC and Rigorous Imprisonment for six months U/s 323
IPC and a fine of Rs. 500/- each in default of which the
accused persons to undergo further Simple Imprisonment for
one month subject, to set off. The accused persons be taken
into custody to undergo the imprisonment. The substantive
punishment will run concurrently.”

7. Aggrieved by such Judgement of conviction and order of sentence,

the present appellants have preferred the appeal.

8. Learned Senior Counsel Mr. Dhal, while assailing the impugned

judgment, has strenuously argued the matter on merits by taking this

Court through the evidence available on record. It is contended by him

that P.Ws.4 and 5, who were projected by the prosecution as eye-

witnesses to the occurrence, have not supported the prosecution case and

were declared hostile. It is further submitted that although P.W.7, the

daughter of the victim, and P.W.8, the injured victim himself, have

spoken about the occurrence, their evidence primarily attributes the overt

act to accused Baikuntha Barik and does not specifically assign any overt

act to the other accused persons.

Page 6 of 17

Learned Senior Counsel further submitted that though P.W.7 and

P.W.8 have referred to one “Rama Patra/Rama Ch. Patra”, which may

sound similar to the name of accused-appellant no.4, namely Ramahari

Patra, such evidence does not inspire confidence. It is also pointed out

that the injured himself has stated about the involvement of one Jayanta

Barik in the assault, but the said person was never sent up for trial. In

support of such contention, learned counsel has drawn the attention of

this Court to the relevant portion of the evidence of P.W.8, which reads

as follows:-

“…..I was returning home at that time, when Jayanta Barik
holding lathi way laid me on road. Thereafter when I wanted to
go back in my cycle accd. persons holding thengas attacked me
from front side whereas their companions Baikuntha Barik and
Rama Ch. Patra attacked me from my backside on different parts
of my body causing injuries on my forehead just after the right
eye brow, head, right arm, and both the legs. In view of the
assault I fell down on the road…..”

It is further submitted by learned Senior Counsel that P.W.9, the

Investigating Officer, has admitted in his evidence that there existed a

counter case arising out of the same occurrence. Referring to the

evidence of P.W.9, learned counsel submitted that the prosecution

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version suffers from material contradictions and embellishments. The

relevant portion of the evidence of P.W.9 is reproduced herein below:-

“There is a counter case P.S. case No.132 dtd.9.10.2001
U/s.341,325,307, and other offences and I was the Investigating
officer in that counter case also, P.W.7 has not stated before me
that at the relevant time while she was taking meals inside the
house after returning from school heard hullah and came to the
spot. She has also not specifically stated before me that her father
sustained injury on his back, right leg, chest however she stated
that her father sustained injury on other parts of the body along
with head…….”

On the basis of the aforesaid submissions, learned Senior Counsel

contended that the prosecution has failed to establish the charges against

the accused persons beyond all reasonable doubt and accordingly prays

for acquittal of the appellants.

9. Upon careful consideration of the rival submissions and on

meticulous appraisal of the evidence available on record, this Court finds

that the prosecution evidence does not uniformly establish the

involvement of all the accused persons beyond reasonable doubt.

Admittedly, P.Ws.4 and 5, who were cited as eye-witnesses to the

occurrence, have not supported the prosecution case and were declared

hostile. Therefore, the case of the prosecution substantially rests upon

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the testimony of P.W.7, the daughter of the injured, and P.W.8, the

injured witness himself.

10. It is well settled that the evidence of an injured witness ordinarily

carries great evidentiary value. However, such evidence must also

inspire confidence and be free from material contradictions insofar as the

implication of each accused person is concerned. On close scrutiny of

the evidence of P.W.8, it appears that the specific overt act has been

consistently attributed mainly against accused-appellant no.1, namely

Baikuntha Barik. The evidence of P.W.8 clearly indicates the active

participation of accused Baikuntha Barik in the assault upon him.

So far as accused-appellant no.4 Ramahari Patra is concerned, the

injured has referred to one “Rama Ch. Patra”, but there is no cogent and

unequivocal evidence to conclusively establish that the said reference

unmistakably point towards accused-appellant no.4. Moreover, the

prosecution evidence also discloses the name of one Jayanta Barik as an

assailant, who was never sent up for trial, thereby creating a doubt

regarding the exact identity and participation of the accused persons.

Page 9 of 17

11. In criminal jurisprudence, suspicion, however strong, cannot take

the place of proof. The prosecution is required to establish the guilt of

each accused individually and beyond all reasonable doubt. In the

present case, except the evidence against accused-appellant no.1

Baikuntha Barik, the materials available on record are neither cogent nor

sufficiently reliable to sustain the conviction of accused-appellant nos.2

Prasanta Barik, 3 Susanta Barik and 4 Ramahari Patra. Accordingly,

extending the benefit of doubt, accused-appellant nos.2, 3 and 4 are

entitled to acquittal.

12. Therefore, the conviction and sentence of accused-appellant no.1

Baikuntha Barik are hereby affirmed. However, the conviction and

sentence passed against accused-appellant no.2 Prasanta Barik, accused-

appellant no.3 Susanta Barik and accused-appellant no.4 Ramahari Patra

by the learned Addl. Sessions Judge (Fast Track Court), Balasore in S.T.

Case No.5/69 of 2002 are hereby set aside and they are acquitted of all

the charges. Their bail bonds stand discharged.

Page 10 of 17

13. At this stage, on the question of sentence, Mr. Dhal, learned

Senior Counsel appearing for accused-appellant no.1, submitted that this

appellant has already undergone the rigors of criminal prosecution and

trial for a considerable period. It is contended that after conclusion of the

trial, the present appeal was preferred in the year 2004 and the matter

remained pending for adjudication for nearly 22 years. Learned Senior

Counsel submitted that the appellant, who was then in his mid-fifties, is

presently about 77 years of age and, therefore, sending him back to

custody at this belated stage to undergo the remaining sentence would

serve no meaningful purpose. It is further submitted that the appellant

has no criminal antecedents and no other criminal case, either of similar

nature or otherwise, is stated to be pending against him. During the long

intervening period, the appellant is stated to have led a peaceful and

dignified life and has remained well integrated into society while

maintaining his family responsibilities. According to the learned Senior

Counsel, incarceration after such an inordinate lapse of time would not

advance the cause of justice and may rather prove counter-productive by

causing unnecessary hardship and social stigma to the appellant as well

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as his family members, particularly when there is no allegation of any

subsequent criminal conduct on his part. In view of the aforesaid

circumstances, learned Senior Counsel prays that this Court may

consider extending to accused-appellant no.1 the benefit of the

provisions of the Probation of Offenders Act read with Section 360 of

the Cr.P.C.

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

2001 and at that point of time the appellant no.1 was in his mid-fifties.

He has been convicted by the impugned judgment and order dated

27.04.2004. The present appeal is pending since 2004 and at present the

appellant is in his late seventies. Much water has been flown under the

bridge by now. Therefore, this is a fit case where the learned trial court

ought to have been given the treatment under the Probation of Offenders

Act. The Hon’ble Supreme Court in Chellammal and Another v. State

represented by the Inspector of Police1 has held that it is the statutory

obligation of the sentencing court to apply the provisions of Probation of

1
2025 INSC 540

Page 12 of 17
Offenders Act and non-granting of the benefit should be supported by

reasoning.

In the facts scenario of the present case, the prayer made by Mr.

Dhal, learned Senior Counsel for the appellant for extending the benefit

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

15. The Hon’ble Supreme Court in Chellammal (supra) 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

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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

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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. ”

Page 15 of 17

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 no.1 the benefit

contemplated under Section 4 of the Probation of Offenders Act.

16. In such view of the matter, the present Criminal Appeal in so far

as the conviction relating to accused appellant no.1 is concerned, is

turned down. But instead of sentencing the appellant no.1 to suffer

2
2012 (Supp-II) OLR 469
3
2007 (Supp.II) OLR 250

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imprisonment, this Court directs the appellant no.1 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 no.1 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.

17. Accordingly, the Criminal Appeal is allowed in respect of

accused-appellant nos.2, 3 and 4 and they are acquitted of the charges

levelled against them. So far as accused-appellant no.1 is concerned, the

Criminal Appeal stands partly allowed.

(S.S. Mishra)
Judge

The High Court of Orissa, Cuttack
Dated the 22nd May, 2026/Ashok

Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR JAGADEB
MOHAPATRA
Reason: Authentication
Location: High Court of Orissa
Date: 25-May-2026 19:03:40 Page 17 of 17