THE HIGH COURT OF ORISSA AT CUTTACK

CRLA No.149 of 2003

CNR No.ODHC010022022003

(In the matter of an application under Section 374(2) of the Criminal

Procedure Code)

1. Arjun Dalai

2. Keshab Dalai

3. Dhadu Dalai ……. Appellants

-Versus-

State of Orissa ……. Respondent

For the Appellants : Ms. Anima Kumari Dei, Amicus Curiae

For the Respondent : Mr. A.K. Apat, AGA

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 06.08.2026 :: Date of Judgment: 25.08.2026

S.S. Mishra, J. This appeal is directed against the Judgment of

Conviction and the Order of Sentence dated 07.05.2003 passed by the

learned Adhoc Additional District & Sessions Judge, Fast Track Court

No. II, Puri in S.T. Case No. 78/197 of 2002/1998, whereby the

Page 2 of 23

appellant Keshaba was convicted for the offence punishable under

Section 307 of the Indian Penal Code and the appellants Arjuna and

Dhadu were convicted for the offence punishable under Section 323 of

the Indian Penal Code. By the impugned order of sentence, the appellant

Keshaba was sentenced to undergo rigorous imprisonment for three

years for the offence under Section 307 of the Indian Penal Code,

whereas the appellants Arjuna and Dhadu were sentenced to undergo

rigorous imprisonment for three months for the offence under Section

323 of the Indian Penal Code.

2. The appeal is pending since 2003. When the matter was called

repeatedly, none appeared for the appellant. Therefore, this Court

appointed Ms. Anima Kumari Dei, as Amicus Curiae vide order dated

28.07.2026 to assist the Court in the matter.

3. Heard Ms. Anima Kumari Dei, learned Amicus Curiae for the

appellants and Mr. A.K. Apat, learned Additional Government Advocate

for the State.

4. That, bereft of unnecessary details, the prosecution case, in brief,

is that on the morning of 27.01.1997, the appellants damaged the fence

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of the informant and attempted to encroach upon a portion of his land.

When the informant protested against such act, the appellants abused and

rebuked him. In the meantime, the informant's brother, namely, Sudhir

Palei, arrived at the spot and also objected to the conduct of the

appellants. Appellant Keshaba, who was armed with a Katuri, assaulted

Sudhir with the said weapon, aiming at his neck. Sudhir warded off the

blow and, in the process, sustained bleeding injuries on his hand.

Thereafter, when the informant and his brother attempted to leave the

spot, the appellants assaulted the informant with lathis.

On the basis of the written report submitted by the victims of the

assault, Brahmagiri Police Station, Puri District, registered P.S. Case

No.14 of 1997, which subsequently gave rise to G.R. Case No.138 of

1997 in the Court of the learned S.D.J.M., Puri. Upon completion of

investigation, the Investigating Officer, having found prima facie

materials against the appellants, submitted charge-sheet. The learned

S.D.J.M., Puri took cognizance of the offences and, after complying with

the requisite formalities, committed the case to the Court of Sessions.

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The case was thereafter transferred to the learned Additional Sessions

Judge, Puri for disposal in accordance with law.

During investigation, the appellants were arrested by the police

and, upon being produced before the Court, were remanded to custody.

Subsequently, they were released on bail to face the trial.

5. That, during the course of trial, in order to substantiate its case, the

prosecution examined six witnesses. P.W.1 is the informant, P.W.2 is his

brother and the injured, P.Ws.3, 4 and 5 were independent witnesses to

the occurrence, whereas P.W.6 was the Medical Officer. The

Investigating Officer, however, could not be examined as he had expired

by the time the trial commenced. The prosecution also proved four

documents, which were marked as Exhibits 1 and 2.

That the plea of the defence was one of complete denial.

However, in support of such plea, the defence neither examined any

witness nor adduced any documentary evidence.

6. The learned trial Court, upon consideration of the evidence

available on record and the rival submissions advanced on behalf of the

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parties, proceeded to examine the question on implication of non-

examination of the Investigating Officer and the alleged prejudice

caused to the defence on that account. The learned trial Court also

considered the evidence of P.Ws.1 and 2 with regard to the manner of

occurrence and the assault attributed to the respective appellants. On

such appreciation of the evidence, the learned trial Court recorded its

findings, inter alia, with regard to the absence of any material

contradiction in the testimony of the prosecution witnesses, the effect of

non-examination of the Investigating Officer, and the nature of the

assault attributed to appellant Keshaba and appellants Arjuna and

Dhadu. The relevant findings of the learned trial Court, being germane

to the adjudication of the present appeal, are extracted hereinbelow:

“11. A point has been raised by the defence that the I.O. of this

case has not been examined and prejudice has been caused to the

accd. It has been submitted that the contradiction in the testimony

of the witnesses could not be confronted to the I.O. On verification

of the record it, is seen that the defence has tried to bring

contradiction in the testimony of prosecution witnesses. Several

suggestions have been given to different witnesses to the fact that

they have not stated some facts to the I.O. at the time of

investigation. But there is no important contradiction. Even if the

suggestion of the defence regarding contradiction with earlier

statements are accepted, the same cannot falsify the testimony of

witnesses. P.ws. 1 and 2 have stated the occurrence in clear and

convincing manner. The contradiction attempted to be brought out

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in their testimony is of no significance. The I.O. could not be

examined as he is dead. Prosecution has not deliberately withheld

him. Had he been examined and had the attempted contradiction

established, it would have not falsified the prosecution case. So,

non-examination of the I.O. has not caused prejudice in the present

case to the defence.

12. As already observed above, accused Keshaba gave a blow on

the neck of P.W.2. Had P.W.2 not warded up the blow the Katari

would have caused hurt on his neck. So, the circumstances on

which the blow was given was likely to cause death of P.W.2 and a

prudent and cautious man is bound to know that the blow by

Katari on the neck of a human being is likely to cause death.

It is a clear case of attempt to murder and accused, Keshaba is

bound to be convicted U/s.307 I.P.C.. Accused, Arjuna and Dhadu

have given blows with the help of lathis on P.W.1. Simple injuries

have been inflicted on the person of P.W.1. So, these two accd.

persona are guilty of voluntarily causing hurt to P.W.1 and both of

them are liable to be punished U/s.323 I.P.C. They have been

charged U/s.307 I.P.C. and they can safely be convicted under a

lessor offence. There is no material on record to believe the

allegation of offences U/ss.341/506 IPC and all the Accd. persons

are bound to be acquitted from these two charges.

13. For the aforesaid reasons it is found that the prosecution has

been able to prove its case in part. Accd. Bhima and Sudarsan are

found not guilty of the charge U/ss.341/307/506 I.P.C and they are

acquitted Accd. Keshaba is found guilty U/s.307 I.P.C. and is

convicted thereunder. Accd. Arjuna and Dhadu are found guilty

U/s.323 I.P.C. and are convicted thereunder.”

7. From a reading of the impugned judgment, it is evident that the

learned trial Court, upon appreciation of the evidence on record, held

that the prosecution had been able to prove the occurrence and the role

attributed to the respective accused persons. The learned trial Court

specifically held that appellant Keshaba had assaulted P.W.2 with a

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Katari, aiming at his neck, and that the blow, if not warded off by P.W.2,

was likely to cause his death. On such finding, the learned trial Court

concluded that the ingredients of the offence under Section 307 of the

Indian Penal Code were established against appellant Keshaba. So far as

appellants Arjuna and Dhadu are concerned, the learned trial Court held

that they had assaulted P.W.1 with lathis, causing simple injuries to him,

and accordingly found them guilty of the offence punishable under

Section 323 of the Indian Penal Code. The learned trial Court further

considered the defence contention regarding non-examination of the

Investigating Officer and held that, since the Investigating Officer had

died and had not been deliberately withheld by the prosecution, no

prejudice had been caused to the defence. It was also held that the

contradictions sought to be brought out in the testimony of the

prosecution witnesses were not material and did not affect the credibility

of P.Ws.1 and 2. The learned trial Court, however, found that there was

no material on record to substantiate the allegations under Sections 341

and 506 of the Indian Penal Code and accordingly acquitted the accused

persons of those charges. On such findings, appellant Keshaba was

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convicted for the offence punishable under Section 307 of the Indian

Penal Code, whereas appellants Arjuna and Dhadu were convicted for

the offence punishable under Section 323 of the Indian Penal Code and

sentenced accordingly.

8. Being aggrieved by the aforesaid Judgment of Conviction and

Order of Sentence dated 07.05.2003 passed by the learned Adhoc

Additional District & Sessions Judge, Fast Track Court No. II, Puri in

S.T. Case No.78/197 of 2002/1998, the appellants have preferred the

present appeal, challenging the legality and correctness of the findings

recorded by the learned trial Court as well as the conviction and

sentence imposed upon them.

9. Learned Amicus Curiae for the appellants, Ms. Anima Kumari

Dei, assailing the impugned judgment of conviction, submitted that the

prosecution evidence suffers from material contradictions and

infirmities, which create a reasonable doubt regarding the occurrence as

alleged and, more particularly, the requisite intention or knowledge on

the part of appellant Keshaba to attract the mischief of Section 307 of the

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Indian Penal Code. Drawing attention to the evidence of P.W.1, learned

counsel submitted that P.W.1 has deposed that:

“The accused persons saying to kill Sudhir Palei, accused Keshab

gave a blow with the help of Katuri on the left side neck of Sudhir.

Sudhir raised his hand to protect the blow and received injury on

his left palm and sustained bleeding injuries on his fingers.”

It is submitted that, however, the aforesaid assertion of P.W.1

regarding the accused persons allegedly saying to kill Sudhir Palei is

conspicuously absent from the deposition of P.W.2, who is himself the

injured witness. P.W.2 has deposed that:

“Accd Keshab gave me a blow with the help of a Katuri aiming my

neck. I raised my left hand to protect the blow and received injury

on my left palm.”

According to learned counsel, the omission assumes significance,

as P.W.2, being the person upon whom the alleged blow was landed,

would have been the most natural witness to state that appellant Keshaba

had uttered anything indicating an intention to kill his brother. The

material variation between the testimony of P.W.1 and P.W.2, according

to learned counsel, casts doubt upon the prosecution's allegation

regarding the intention with which the alleged blow was delivered.

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10. Amicus Curiae further submitted that the medical evidence does

not lend adequate corroboration to the prosecution version. Referring to

the evidence of P.W.6, the Doctor, it is submitted that P.W.2 was found

to have sustained an incised wound on the dorsum of his left hand, a

bruise on the left elbow and dislocation of the left inter-phalangeal joint.

The Doctor has opined that injury No.1 might have been caused by a

sharp cutting weapon, whereas injuries Nos.2 and 3 might have been

caused by a hard surface. More importantly, in cross-examination, the

Doctor has stated:

“Injuries under Ext.2 were on the accessible part of the body. It is

not a fact that in injury No.1 of Ext.2 can be self-inflicted. It was

skin depth. Injury No.1 of Ext.2 was on the middle of the dorsum of

the left hand. I did not find any injury on the palmar aspect of left

hand of Sudhir Ku.Palei. Injury No.3 of ext.2 can be caused by

fall.”

Learned Amicus Curiae submitted that the nature and location of

the injury do not support the prosecution allegation in its entirety that

appellant Keshaba delivered a blow with a Katuri on the neck of P.W.2

with the intention of causing his death. Had the blow actually landed on

the neck, the nature of injury would reasonably have been more serious.

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Instead, the injury was found on the dorsum of the hand, which P.W.2

claims to have raised in an attempt to ward off the blow.

Learned Amicus Curiae has further drawn attention to the

deposition of P.W.1 regarding the injuries allegedly sustained by him at

the hands of appellants Arjuna and Dhadu. P.W.1 has deposed that:

“Accused Arjuna and Dhadu gave me blows with the help of lathis.

I sustained swelling injuries on my back and left leg.”

However, the Doctor, while examining P.W.1, found only simple

injuries, namely, bruises on the left back, left leg and dorsum of the left

foot. In cross-examination, the Doctor has deposed that:

“In jury No.1 of Ext.3 can be caused by fall. Injury No.2 of Ext.3 is

possible on fall. Injury No.3 is not possible by fall, but it can be

caused if a heavy substance falls on the foot.”

11. According to learned Amicus Curiae, the aforesaid medical

opinion further demonstrates that the medical evidence does not

completely rule out alternative possibilities as to the manner in which the

injuries were sustained.

12. Therefore, according to her, the evidence of P.Ws.1 and 2 cannot

be accepted as conclusively establishing the requisite intention or

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knowledge to cause death. While P.W.1 alleges that the accused persons

were saying to kill Sudhir Palei, P.W.2, despite being the injured person

and the alleged target of the assault, makes no such statement. Further,

the medical evidence establishes an injury on the hand and not on the

neck and also indicates that one of the injuries could have been caused

by a fall. The cumulative effect of these circumstances, according to

learned counsel, creates a reasonable doubt as to whether appellant

Keshaba had the intention or knowledge requisite for an offence under

Section 307 of the Indian Penal Code.

13. It is accordingly submitted that where two views are reasonably

possible and the evidence admits of a doubt regarding the intention

attributed to the accused, the view favourable to the accused ought to be

adopted. Learned Amicus Curiae, therefore, prayed that appellant

Keshaba be extended the benefit of doubt and his conviction under

Section 307 of the Indian Penal Code be set aside. In the alternative, it is

submitted that, even accepting the occurrence of the assault, the facts and

evidence on record would not justify a conviction under Section 307 of

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the Indian Penal Code and the appellant Keshaba may appropriately be

convicted, if at all, for a lesser offence.

14. Having considered the rival submissions, the evidence of P.Ws.1

and 2 and the medical evidence of P.W.6, this Court finds that the

factum of assault upon P.W.2 by appellant Keshaba with a Katuri cannot

be discarded altogether. P.W.2 is the injured witness and has specifically

stated that appellant Keshaba gave a blow with a Katuri aiming at his

neck and that, in an attempt to protect himself, he raised his left hand and

sustained injury thereon. This part of his testimony finds corroboration

from the evidence of P.W.1, who has also stated that appellant Keshaba

assaulted P.W.2 with a Katuri and that P.W.2 sustained bleeding injuries.

The medical evidence of P.W.6 further establishes that P.W.2 had

sustained an incised wound on the dorsum of his left hand, which,

according to the Doctor, might have been caused by a sharp cutting

weapon.

However, the question that requires consideration is whether the

prosecution has been able to establish beyond reasonable doubt that the

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said assault was committed with the requisite intention or knowledge

contemplated under Section 307 of the Indian Penal Code. On a careful

scrutiny of the evidence, this Court finds that the prosecution evidence

falls short of establishing such intention or knowledge beyond

reasonable doubt. Though P.W.1 has stated that the accused persons

were saying to kill Sudhir Palei, P.W.2, who was himself the victim of

the alleged assault, has not stated anything about any such utterance.

More importantly, the blow allegedly aimed at the neck did not land on

the neck of P.W.2. Rather, the injury was sustained on the dorsum of his

left hand, which he admittedly raised to ward off the blow. The Doctor

has also described the injury as being skin-deep and has not opined that

the injury was dangerous to life. The other injuries found on P.W.2 were

also not shown to be sufficient, individually or collectively, to indicate

an attempt to cause death.

15. It is well settled that the mere use of a dangerous or sharp-edged

weapon, by itself, is not sufficient to sustain a conviction under Section

307 of the Indian Penal Code. The intention or knowledge with which

the act was committed has to be gathered from the attending

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circumstances, including the nature of the weapon, the part of the body

targeted, the nature and extent of the injury and the manner in which the

assault was carried out. In the present case, although the use of a Katuri

and the fact that the blow was allegedly aimed at the neck may raise a

suspicion regarding the intention of appellant Keshaba, the evidence on

record does not establish such intention or knowledge to the standard

required for sustaining a conviction under Section 307 of the Indian

Penal Code.

At the same time, the evidence of P.W.2 regarding the assault

upon him with a Katuri receives material corroboration from the

testimony of P.W.1 as well as the medical evidence. Therefore, the entire

prosecution case against appellant Keshaba cannot be rejected merely

because the ingredients of Section 307 of the Indian Penal Code have not

been established. The proved facts establish that appellant Keshaba

voluntarily caused hurt to P.W.2 by means of a Katuri, which is a

weapon capable of causing injury and falls within the ambit of a

dangerous weapon for the purpose of Section 324 of the Indian Penal

Code.

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16. Accordingly, while extending the benefit of doubt to appellant

Keshaba in respect of the specific charge under Section 307 of the Indian

Penal Code, this Court finds that the evidence on record sufficiently

establishes his guilt for the offence punishable under Section 324 of the

Indian Penal Code. Consequently, the conviction of appellant Keshaba

under Section 307 of the Indian Penal Code is altered to one under

Section 324 of the Indian Penal Code.

17. So far as appellants Arjuna and Dhadu are concerned, their

conviction under Section 323 of the Indian Penal Code is based upon the

consistent evidence of P.W.1 regarding the assault committed upon him

with lathis, which is substantially corroborated by the medical evidence

of P.W.6 showing simple injuries on his person. No sufficient ground

has been made out warranting interference with their conviction. Their

conviction under Section 323 of the Indian Penal Code is, therefore,

affirmed.

18. At the outset, learned counsel appearing for the appellants, on

quantum of sentence submitted that the occurrence took place on

27.01.1997 and the present appeal, preferred in the year 2003, has

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remained pending for more than two decades. It was contended that,

having regard to the long passage of time since the occurrence, directing

the appellants to undergo the substantive sentence at this distant point of

time would serve no meaningful purpose. Learned counsel further

submitted that the appellants have, in the interregnum, remained

integrated with society and have been leading settled lives. It was also

urged that there is nothing on record to indicate any criminal antecedent

or involvement of the appellants in any other criminal case. In such

circumstances, learned counsel submitted that the object of sentencing

would be adequately met by extending to the appellants the benefit of the

provisions of the Probation of Offenders Act, 1958, rather than directing

them to undergo the substantive sentences imposed upon them.

Accordingly, it was prayed that, keeping in view the nature of the

offences for which the conviction ultimately stands, the age of the

occurrence, the prolonged pendency of the appeal and the overall facts

and circumstances of the case, the appellants may be extended the

benefit of probation.

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19. The record reveals that the occurrence relates back to 27.01.1997

and the appellants came to be convicted by the learned trial Court vide

judgment dated 07.05.2003. The present appeal, preferred in the year

2003, has remained pending for more than twenty-three years. Thus,

nearly three decades have elapsed since the occurrence. During this

considerable period, the appellants have had the opportunity to lead their

respective lives and remain integrated with society. There is also no

material brought to the notice of this Court indicating that, after the

occurrence, the appellants have been involved in any other criminal

activity or that any other criminal case is presently pending against them.

It is also relevant to note that appellant Keshaba, who was originally

convicted under Section 307 of the Indian Penal Code, has been found

liable only for the offence punishable under Section 324 of the Indian

Penal Code, whereas the conviction of appellants Arjuna and Dhadu

under Section 323 of the Indian Penal Code has been maintained. The

nature of the offences for which the conviction ultimately survives,

therefore, also assumes significance while considering the question of

sentence. In view of the long lapse of time, the nature of the offences, the

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absence of any material indicating subsequent criminal antecedents and

the fact that the appellants have remained at liberty for a prolonged

period, this Court is of the considered view that sending them back to

custody at this distant point of time would not serve any meaningful

purpose. The circumstances of the case, therefore, warrant consideration

of the appellants for extending the benefit contemplated under the

Probation of Offenders Act, 1958. The Hon'ble Supreme Court in

Chellammal and Another v. State represented by the Inspector of

Police

1

, has held that it is the statutory obligation of the sentencing Court

to consider the applicability of the provisions of the Probation of

Offenders Act and that any refusal to extend such benefit must be

supported by reasons. In the facts and circumstances of the present case,

the submission advanced by the learned Amicus Curiae for the appellants

seeking extension of the benefit under the Probation of Offenders Act

merits consideration.

1

2025 INSC 540

Page 20 of 23

20. 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

observed as follows:

“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

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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.”

Having regard to the aforesaid legal position and considering the

facts of the present case, particularly the nature of the offence under

Section 324 of IPC with regards to accused-appellant No.2 and Section

323 of IPC with regard to the other appellants, the long lapse of more

than twenty years since the occurrence, the absence of any criminal

antecedents and the settled life presently being led by them, this Court is

of the considered opinion that the appellants deserve to be extended the

benefit contemplated under Section 4 of the Probation of Offenders Act,

1958, instead of directing them to undergo the remaining part of the

sentence. Additionally, the case of the appellants is also covered by ratio

of the judgments of this Court in the case of Pathani Parida & another

vs. Abhaya Kumar Jagdevmohapatra

2

and Dhani @ Dhaneswar Sahu

2

2012 (Supp-II) OLR 469

Page 22 of 23

vs. State of Orissa

3

. 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.

21. Hence, the present Criminal Appeal is partly allowed. The

conviction of appellant No.2 is modified from Section 307 of the Indian

Penal Code to that of Section 324 of the Indian Penal Code, while the

conviction of appellants appellant No.1 and appellant No.3 under Section

323 of the Indian Penal Code is maintained. However, instead of

directing the appellants to undergo the substantive sentences, this Court

extends to them the benefit contemplated under Section 4 of the

Probation of Offenders Act, 1958, for a period of one year 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

3

2007 (Supp.II) OLR 250

Page 23 of 23

under the supervision of the concerned Probation Officer during the

aforementioned period of one year. However, while extending the

benefit of Section 4 of the P.O. Act, keeping in view the nature of

injuries sustained by P.W. 1 and 2, this court is of the view that the

appellants are liable to pay compensation U/s.5 of P.O. Act to the

injured. Accordingly each of the appellant shall pay ₹5,000(Rupees five

thousand) compensation to P.W.1 and P.W.2 within a period of 4 weeks.

22. Accordingly, the Criminal Appeal is partly allowed.

23. This Court acknowledges the effective and meaningful assistance

rendered by Ms. Anima Kumari Dei, 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 25

th

August, 2026/Ashok