Orissa High Court
Panchanan Sahoo & Others vs State Of Odisha on 26 March, 2026
THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.44 of 2010
AND
CRLA No.47 of 2010
(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)
CRLA No.44 of 2010
Panchanan Sahoo & others ....... Appellants
-Versus-
State of Odisha ....... Respondent
For the Appellants : Mr. Pritam Kumar Mallick, Advocate
For the Respondent : Mr. A.K. Apat,
Additional Government Advocate
AND
CRLA No.47 of 2010
Narendranath Das & others ……. Appellants
-Versus-
State of Odisha ……. Respondent
For the Appellants : Mr. M. Routray, Advocate
For the Respondent : Mr. A.K. Apat,
Additional Government Advocate
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 17.03.2026 :: Date of Judgment: 26.03.2026
S.S. Mishra, J. Both the aforementioned Criminal Appeals arise out
of the common judgment of conviction and order of sentence dated
11.01.2010 passed by the learned Addl. Sessions Judge, Kendrapara in
S.T. Case No.26/2005, whereby the accused persons were acquitted of
the charges under Section 148 IPC and Section 3 of the SC & ST (P.A.)
Act, but found guilty under Sections 147, 323 and 337 read with Section
149 IPC. The learned trial Court sentenced each of the convicted persons
to undergo rigorous imprisonment for six months on each count, with the
sentences directed to run concurrently, along with the benefit of set-off
under Section 428 Cr.P.C. Since the impugned judgment is common,
both appeals were heard together and are disposed of by this common
judgment.
Page 2 of 17
2. In CRLA No.44 of 2010, as per the report dated 16.03.2026
received from the IIC, Kudanagari Police Station after verification that
appellant nos.1, 2 and 11 have already expired. Hence, the present appeal
qua appellant nos.1, 2 and 11 stands abated in absence of any application
under Section 394 of the Cr. P.C. either by the legal heirs of appellant
nos.1, 2 and 11 or by their next friend. So far as appellant nos.3 to 10 are
concerned, they are alive and maintaining their livelihood by doing
business. Therefore, the present appeal survives qua appellant nos.3 to
10.
Similarly, in CRLA No.47 of 2010, appellant nos.2, and 5 have
already expired. Hence, the present appeal qua appellant nos.2 and 5
stands abated in absence of any application under Section 394 of the Cr.
P.C. either by the legal heirs of appellant nos.2 and 5 or by their next
friend. As per the report dated 16.03.2026, the whereabouts of appellant
No.7- Buna Das could not be ascertained. So far as appellant nos.1, 3, 4
and 6, 8 and 9 are concerned, they are alive and maintaining their
livelihood by doing business. Therefore, the present appeal survives qua
Page 3 of 17
appellant nos.1, 3, 4 and 6, 8 and 9. The said report has already been
taken on record.
3. Heard Mr. Pritam Kumar Mallick and Mr. M. Routray, learned
counsels appearing for the appellants and Mr. A.K. Apat, learned
Additional Government Advocate for the State.
4. The prosecution of the accused persons arises out of an occurrence
dated 10.11.1999 at about 9:30 A.M. at village Kalabuda under Patkura
Police Station in the district of Kendrapara. The informant, Padmacharan
Das, while proceeding to his office in the Irrigation Department, was
allegedly intercepted by the accused persons, who had assembled in a
group and were armed with weapons like crowbars and bhujalis. It is
alleged that they abused him in filthy language, referring to his caste in
public view, and attempted to assault him. On hearing his alarm, his
wife, nephew, brother and other family members rushed to the spot,
whereupon the accused persons allegedly pelted stones and brickbats
towards the house of the informant and his family members in a rash and
negligent manner, resulting in injuries to some of them, particularly
Page 4 of 17
Pravakar Mallik and Tapan Mallik. The prosecution further alleged that
taking advantage of the situation, especially in the aftermath of the super
cyclone when household articles were lying outside, the accused persons
committed acts of mischief and removed certain household articles and
wooden logs. On the same day in the evening, the informant lodged the
written report at Patkura Police Station, whereupon the case was
registered and investigation was taken up.
5. Upon completion of investigation, charge-sheet was submitted
against 20 accused persons for offences under Sections 147, 148, 336,
337, 149 of the Indian Penal Code and Section 3 of the SC & ST
(Prevention of Atrocities) Act.
6. In order to bring home the charges, the prosecution examined
eleven witnesses. P.W.1 is the informant himself, who narrated the
manner of the occurrence and the alleged assault and stone pelting.
P.W.2 is the wife of the informant and an eye-witness to the occurrence.
P.Ws.3 to 5 were examined as witnesses to the occurrence and the
alleged injuries sustained by the victims. P.W.7 was the Medical Officer,
Page 5 of 17
who examined the injured persons and proved the injury report showing
simple injuries caused by hard and blunt objects. P.Ws.6 and 8 were the
Investigating Officers. P.Ws.9 and 10 were seizure witnesses, and
P.W.11 is the brother of the informant. The prosecution also relied upon
documentary evidence including the F.I.R., seizure list, injury reports
and the spot map in support of its case.
7. The learned trial Court, after analyzing the evidence held that the
prosecution had successfully established that the accused persons had
formed an unlawful assembly and acted in furtherance of their common
object to use criminal force against the informant and his family
members, relying on the consistent testimonies of the injured witnesses
despite minor discrepancies. However, with regard to the charge under
Section 148 IPC, the court found significant deficiencies as no weapons
like bhujalis or crowbars were seized and there was no cogent evidence
attributing specific weapons to individual accused, and thus acquitted
them of the said charge. The charge under Section 3 of the SC & ST
(PA) Act failed due to non-compliance with mandatory statutory
Page 6 of 17
requirements under Rule 7 of The Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Rules, 1995, particularly as the
investigation was not conducted by a competent officer of the rank of
DSP. Nevertheless, the court found sufficient evidence to prove that the
accused persons had indulged in rioting and caused simple injuries by
pelting stones and brickbats, which was corroborated by medical
evidence indicating injuries caused by hard and blunt objects leading the
court to hold the accused guilty under Sections 147, 323 and 337 read
with Section 149 IPC. The relevant portion of the aforesaid judgment is
extracted herein below for ready reference:-
“14. P.W.7 has stated that on 10.11.99 on police
requisition he examined Pravakar Mallik (P.W.4)
on police requisition and found one abrasion on
his right chest and another swelling injury on his
left side of back. Both the injuries are simple in
nature and might have been caused by hard and
blunt weapon. He does not speak if he examined
other two other injured persons. On the other
hand, P.W.8 has stated that during the course of
investigation, he issued injury requisition for
medical examination of Tapan Mallik and
Pravakar Mallik vide Exts. 3/2 and 4/2,
respectively. As per Ext.3/2 Tapan Mallik was
sent for medical examination, who has identifiedPage 7 of 17
his signature in the injury report, but due to non-
examination of the Medical Officer, the injury
report was not proved. The Medical Officer has
proved the injury report of Pravakar Mallik. In
view of the evidence on record, the injured Tapan
and Pravakar were sent for their medical
examination, evidently Medical Officer found
injuries on the person of Pravakar and also of
Tapan, but the injury report of the latter has not
been proved, but is supported by Tapan himself.
P.W.1 has explained that he did not receive
injuries due to assault by crowbar. Thus, the
expert evidence fully corroborates the material
evidence. From the evidence on record, it can
safely be concluded that on the date of
occurrence the accused persons came in group,
assaulted P.W.1 and threw brick bats towards
their house causing injuries on the person of
P.W.3 and P.W.4. Existence of prior enmity
clearly establishes that the accused persons with
prior consult to use criminal force against the
informant and his family members came to the
spot and in furtherance of their such object they
used criminal force against P.Ws. 1, 3 and 4.
They also pelted brick bats at their houses in a
negligent manner and caused injuries to the
persons of P.Ws. 3 and 4. Though there is
evidence that they were armed with deadly
weapons like crowbars and bhujalis no weapon
of offence has been seized from them.
Whatsoever the I.O. has seized is the copy of
caste certificate of the informant is further
evidence of the I.O., P.Ws. 9 and 10. There is
also discrepant evidence is to who amongst themPage 8 of 17
was holding which weapon. They caused simple
injuries on the person of P.Ws. 3 and 4 by
negligent act punishable U/ss. 337 IPC, and such
offence U/s. 336 IPC mingles with it. Though
there is no charge U/s. 323 IPC this being a
lesser grievous offence than other charges and
there having evidence to that effect, charge U/s.
323 IPC is sustainable. So the overt act of the
accused persons amount an offence of rioting
punishable U/s. 147/323/337 IPC and each of
them is liable for the offence U/s. 149 IPC.
15. Thus having considered the facts and
circumstances of the case and the evidence as
discussed above, I find the prosecution has failed
to establish a case U/s. 148 IPC and 3 of the SC
& ST (P.A.) Act but successfully in establishing a
case U/s. 147, 323/337/149 IPC against the
accused persons beyond all reasonable doubts.
Hence, I hold the accused persons not guilty of
the offence U/ss. 148 IPC and U/s. 3 of the SC &
ST (P.A) Act, and acquit them thereof U/s. 235(1)
Cr.P.C. and found them guilty U/ss. 147,
323/337/149 IPC and convicted them
thereunder…….”
8. Upon careful reappraisal of the entire evidence on record, this
Court finds that the existence of prior enmity between the parties is not
only admitted but also well-established through the cross-examination of
prosecution witnesses, which reveals long-standing land disputes and
Page 9 of 17
previous litigations between the parties. Such background necessitates a
cautious and careful approach in evaluating the evidence, as prior
animosity is a double-edged weapon capable of both providing motive
for the offence and for false implication. The prosecution case primarily
rests upon the testimonies of related and interested witnesses, namely the
informant and his family members. However, their presence at the scene
of occurrence cannot be doubted as natural, and their evidence cannot be
discarded solely on the ground of relationship, particularly when the
occurrence is stated to have taken place in front of their dwelling house.
At the same time, this Court notes that no independent witnesses, though
admittedly available, have been examined by the prosecution, and no
satisfactory explanation has been offered for such omission, which casts
a shadow on the completeness of the prosecution case.
9. The medical evidence on record establishes that the injuries
sustained by the victims were simple in nature and caused by hard and
blunt objects, which lends partial corroboration to the prosecution
version regarding stone pelting; however, it does not support the
Page 10 of 17
allegation of assault by deadly weapons like bhujalis and crowbars.
Further, there are material discrepancies and inconsistencies in the
testimonies of witnesses regarding the specific role played by each
accused person and the nature of weapons allegedly used. The failure of
the investigating agency to seize any weapon of offence further weakens
the prosecution case insofar as the charge under Section 148 IPC is
concerned. Additionally, this Court concurs with the finding of the
learned trial court that the charge under the SC & ST (Prevention of
Atrocities) Act is not sustainable due to non-compliance with mandatory
statutory requirements, particularly the failure to conduct investigation
by a competent officer of the prescribed rank, which goes to the root of
the matter.
10. Nevertheless, despite the aforesaid infirmities and exaggerations,
the core substratum of the prosecution case remains intact to the extent
that the accused persons, being members of an unlawful assembly, had
engaged in stone pelting and caused simple injuries to some of the
victims. The evidence, when read as a whole, inspires confidence to that
Page 11 of 17
limited extent and establishes the commission of offences punishable
under Sections 147, 323 and 337 read with Section 149 IPC.
Accordingly, this Court finds no perversity or illegality in the finding of
guilt recorded by the trial court under the said provisions, warranting
interference in the appeal.
11. The learned Trial Court while considering the quantum of
sentence to be imposed on the accused persons, although recorded that
the age group of the accused persons are ranging from 25 years to 73
years and the offences are minor in nature, but refused to grant benefit of
the Probation of Offenders 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,
1
2025 INSC 540
Page 12 of 17
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
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:
Page 13 of 17
“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 bePage 14 of 17
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.”
Therefore, on the question of sentence, this Court is of the
considered view that the ends of justice would be adequately met by
adopting a reformative rather than punitive approach. It is significant to
note that the incident in question occurred in the year 1999, and more
than two and a half decades have elapsed since then. During this
prolonged period, the appellants have undergone the rigors of criminal
litigation. Furthermore, the injuries caused in the occurrence have been
found to be simple in nature, and the incident appears to have arisen out
of a village dispute rooted in prior enmity rather than any premeditated
or heinous criminal design. The age of the appellants, some of whom are
now advanced in years, is also a relevant mitigating factor. In such
circumstances, sentencing the appellants to undergo imprisonment at this
distant point in time would not serve any meaningful purpose.
Page 15 of 17
12. Having regard to the totality of circumstances, this Court is of the
considered opinion that this is a fit case for extending the benefit of the
Probation of Offenders Act, 1958, so as to afford the appellants an
opportunity for reformation and rehabilitation. 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 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
appellants the benefit contemplated under Section 4 of the Probation of
Offenders Act.
13. Accordingly, while affirming the conviction of the surviving
appellants under Sections 147, 323 and 337 read with Section 149 IPC,
the sentence of imprisonment imposed by the learned trial court is
hereby set aside. In lieu thereof, the surviving appellants are directed to
be released on probation of good conduct under Section 4 of the
2
2012 (Supp-II) OLR 469
3
2007 (Supp.II) OLR 250
Page 16 of 17
Probation of Offenders Act, 1958, 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.
14. Accordingly, both the Criminal Appeals stand partly allowed.
(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 17 of 17
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 26-Mar-2026 14:37:54
