Murali Chhatrapal And Another vs State Of Odisha on 26 March, 2026

    0
    48
    ADVERTISEMENT

    Orissa High Court

    Murali Chhatrapal And Another vs State Of Odisha on 26 March, 2026

               THE HIGH COURT OF ORISSA AT CUTTACK
    
                           CRLA No.393 of 2005
    
    (In the matter of an application under Section 374(2) of the Criminal
    Procedure Code, 1973)
    
    Murali Chhatrapal and another        .......                 Appellants
    
                                    -Versus-
    
    State of Odisha                      .......               Respondent

    For the Appellants : Mrs. Shuvra Mohapatra,
    Amicus Curiae
    For the Respondent : Mr. Sobhan Panigrahi, ASC

    CORAM:

    SPONSORED

    THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
    Date of Hearing: 24.03.2026 :: Date of Judgment: 26.03.2026

    S.S. Mishra, J. The present Criminal Appeal is directed against the

    judgment of conviction and order of sentence dated 20.08.2005 passed

    by the learned Additional Sessions Judge, Fast Track Court,

    Bhawanipatna in Sessions Case No. 20/13 of 2005, arising out of G.R.
    Case No.472/2004, whereby the accused persons were acquitted of the

    charges under Sections 452/34, 394/398 IPC and Section 27 of the Arms

    Act, but were convicted under Sections 385/34 and 427/34 IPC and

    sentenced to undergo rigorous imprisonment for one year with fine of

    Rs.200/- (Rupees two hundred) only in default, to undergo R.I. for

    further period of one month on each count.

    2. As the written instruction received from the I.I.C., Town P.S.,

    Bhawanipatna, dated 25.07.2025 indicates that the appellant No.l-Murali

    Chhatrapal has expired on 29.07.2011, the present appeal qua the

    appellant No.l stands abated in the absence of any application under

    Section 394 of Cr. P.C. In so far as the appellant No.2 is concerned, he is

    alive. Accordingly, consideration of the present appeal is confined to the

    appellant No.2-Susant Mahanand only.

    3. The present appeal has been pending since 2005. When the matter

    was called for hearing consistently, none appeared for the appellants.

    Therefore, on 24.03.2026, this Court requested Mrs. Shuvra Mohapatra,

    learned counsel, who was present in Court to assist in the matter as

    Page 2 of 12
    Amicus Curiae. She has readily accepted the same and after obtaining

    entire record, assisted the Court very effectively. This Court records

    appreciation for the meaningful assistance rendered by Mrs. Mohapatra.

    4. Heard Mrs. Shuvra Mohapatra, learned Amicus Curiae for the

    appellants and Mr. Sobhan Panigrahi, learned Additional Standing

    Counsel for the State.

    5. The prosecution case, in brief, is that on 27.10.2004 at about 6.00

    P.M., the accused persons allegedly demanded a sum of Rs.2000/- from

    the son of the informant and, upon his refusal, assaulted him and

    thereafter entered the house of the informant, damaged the roof tiles and

    caused injuries to the informant. On the basis of the written report,

    investigation was taken up and charge-sheet was submitted under

    Sections 452/427/394/398/34 of the IPC read with Section 27 of the

    Arms Act. The accused took a stance of denial of charges and claim trial.

    6. To substantiate the charges, the prosecution examined eight

    witnesses including the informant (P.W.1), his family members (P.Ws.2,

    3 and 4), an independent witness (P.W.6), the doctor (P.W.7) and the

    Page 3 of 12
    Investigating Officer (P.W.8). The defence examined two witnesses and

    took the plea that the incident arose out of a dispute relating to collection

    of festival subscription (chanda).

    7. The learned trial court, upon appreciation of evidence, disbelieved

    the prosecution case in so far as the allegations relating to house trespass,

    robbery and use of deadly weapon are concerned, mainly due to

    inconsistencies between ocular and medical evidence and lack of reliable

    corroboration. However, it held that the prosecution succeeded in

    establishing that the accused persons had put the informant and his son

    in fear of injury for the purpose of extortion and had caused damage to

    the house, thereby committed the offences under Sections 385/34 and

    427/34 IPC. The relevant portion of the aforesaid judgment is extracted

    herein below for ready reference:-

    “12. The plea of the accused persons is that they
    had been to the house of P.W.3 to collect the
    balance amount of Dasara Puja chanda and P.W.3
    alongwith his family members picked up quarrel
    with them and have foisted a case. To substantiate
    their plea, they have examined two witnesses; D.W.1
    and D.W.2. P.W.3 has admitted in his evidence that
    D.Ws.1 and 2 are his friends. D.W.1 has stated in

    Page 4 of 12
    his examination-in-chief that in the previous year
    one day, the accused persons went to the house of
    the informant to request his son, Bhuja Sunani to
    refund the collected money, which was collected on
    the occasion of Lakhmara puja. The informant and
    his family members picked up quarrel with the
    accused persons. In his cross examination D.W.1
    has admitted that Lakhmara puja is arranged by the
    King family of Kalahandi and they meet the
    required expenditure. He has further admitted that
    personally he had not accompanied the accused
    persons while they went to the house of the
    informant.

    D.W.2 has stated in his examination in-chief that in
    the previous year in the month of Dasara, he
    alongwith D.W.1, P.W.3 and one Lebi had been to
    T.V. Centre-pada, Bhawanipatna to collect Chanda
    for the occasion of Lakhmare puja. The accused
    persons came to their club, where he alongwith
    Bhuja (P.w.3) were present and told them to give the
    collected amount (chanda) to them to utilise the
    same for the Lakhmara Puja which was with P.w.3,
    who thereafter run away to his house and when they
    went to his house to request him to return the
    collected amount, his family members picked up
    quarrel. In his cross examination, he has admitted
    that for the Lakhmare puja under the Presidentship
    of Collector, Kalahandi always a committee
    constitutes in consultation of Maharaja of
    Kalahandi, but he has denied that the committee
    which functions under the Presidentship of
    Collector, Kalahandi oragnises the Lakhmara puja.

    Page 5 of 12

    According to the Prosecution case, the
    occurrence taken place on 27.10.04. From the
    Calendar of the year 2004 it reveals that 22.10.2004
    was Nabami Puja of that year which is also the day
    of Lakhmara Puja and 23.10.04 was Dasara.
    Therefore, the occurrence has taken place after
    Dasara of the year 2004. The plea of the accused
    persons is inconsistent with the evidence of D.W.2
    and so far as the evidence of D.W.1 is concerned
    that is hear-say. Thus their plea is not established.

    13. From the evidence of P.Ws.1 and 3 it is not
    established that the accused persons have assaulted
    P.w.3 in order to facilitate the attempt to commit
    robbery. Therefore, the accused persons are not
    liable Under Section 394 I.P.C., but from their
    evidence it is established that the accused persons
    have put PW 3 and P.W. 1 in fear of injury in order
    to commit extortion and accordingly they are liable
    Under section 385/34 I.P.C. From the evidence of
    P.Ws. 2, 3 and 4 it is further established that the
    accused persons have committed mischief causing
    damage to the amount of Rs.50/- by destroying the
    tiles of the roof of the house of P.W.1. Therefore,
    they are also liable U/s.427/34 I.P.C. However,
    from the entire evidence of the P.Ws., the charges
    under section 452/34, 394/398 I.P.C. read with
    section 27 of the Arms Act have not been established
    against the accused persons and they are acquitted
    from those charges Under Section 235 (1) Cr.P.C.

    I found the accused persons guilty of the
    charges under sections 385/34,427/34 I.P.C and
    convict them thereunder.”

    Page 6 of 12

    8. I have carefully considered the submissions advanced by the

    learned Amicus Curiae for the appellants and the learned counsel for the

    State and have gone through the records of the case, including the

    depositions of the witnesses, the medical evidence and the documents

    exhibited and other materials available on record.

    9. On perusal of the evidence on record, this Court finds that the trial

    court has already discarded the major part of the prosecution case

    relating to serious offences such as robbery and house trespass. The

    remaining conviction is based primarily on the consistent version that

    there was a quarrel and demand for money accompanied by some degree

    of intimidation and damage to property. The independent witness

    (P.W.6) has also supported the occurrence of quarrel on the road.

    10. Although there are some inconsistencies and exaggerations in the

    statements of the prosecution witnesses, it is well accepted that the entire

    evidence cannot be rejected merely because certain parts are not fully

    reliable. The Court must carefully examine the evidence and accept those

    Page 7 of 12
    portions which appear to be truthful and supported by the record. In the

    present case, the core allegation that the accused demanded money,

    threatened the victims, and caused damage to the property appears to be

    credible and has been rightly relied upon by the trial court. Accordingly,

    this Court is not inclined to interfere with the finding of guilt of appellant

    No.2 under Sections 385/34 and 427/34 IPC.

    11. The trial court, while considering the question of sentence to be

    imposed on the accused person, refused to grant the benefit of the P.O.

    Act. Recently, 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

    1
    2025 INSC 540

    Page 8 of 12
    provide an opportunity to first-time or less serious offenders to reform

    themselves rather than subjecting them to incarceration. 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

    Page 9 of 12
    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.”

    12. The occurrence took place in the year 2004, and more than two

    decades have elapsed. The offences for which the appellant stands

    convicted are not of a grave or heinous nature. The circumstances

    indicate that the incident arose out of a local dispute relating to the

    collection of festival subscriptions. It is further brought to the notice of

    Page 10 of 12
    this Court that the appellant No.2 has already undergone custody for a

    period of 285 days during the investigation and trial out of sentenced

    period of one year. There is no material to indicate that he is a habitual

    offender or that his release on probation would be detrimental to society.

    13. In such circumstances, this Court is of the considered view that the

    appellant No.2 is entitled to the benefit of the Probation of Offenders

    Act, 1958, particularly under Section 4 thereof, instead of being

    subjected to further incarceration.

    14. Accordingly, while maintaining the conviction of appellant No.2

    under Sections 385/34 and 427/34 IPC, the sentence imposed by the trial

    court is set aside. This Court directs the appellant No.2 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.2 shall keep peace and good behavior and he

    Page 11 of 12
    shall remain under the supervision of the concerned Probation Officer

    during the aforementioned period of six months.

    15. With the above modification in the sentence, the Criminal Appeal

    stands partly allowed.

    16. This Court acknowledges the effective and meaningful assistance

    rendered by Mrs. Shuvra Mohapatra, learned Amicus Curiae in this case.

    Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/-

    (Rupees seven thousand five hundred) to be paid as a token of

    appreciation.

    (S.S. Mishra)
    Judge

    The High Court of Orissa, Cuttack.

    Dated the 26th Day of March, 2026/ Subhasis Mohanty

    Signature Not Verified
    Digitally Signed
    Signed by: SUBHASIS MOHANTY Page 12 of 12
    Designation: Personal Assistant
    Reason: Authentication
    Location: High Court of Orissa, Cuttack.

    Date: 26-Mar-2026 14:37:56



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here