THE HIGH COURT OF ORISSA AT CUTTACK

CRA No.179 of 2000

CNR No. ODHC010253222000

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

Procedure Code)

Asharam Sandha @ Asham Sandha and another ……. Appellants

-Versus-

State of Orissa ……. Respondent

For the Appellants : Mr. Abhas Mohanty, Advocate

For the Respondent : Mr. Raj Bhusan Dash, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

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

S.S. Mishra, J. The present appeal is directed against the judgment of

conviction and order of sentence dated 14.07.2000 passed by the learned

Sessions Judge, Sundargarh in Sessions Trial No.122 of 1997 arising out

of G.R. Case No.82 of 1997, whereby the appellants have been convicted

for the offences punishable under Sections 325/307/34 of I.P.C. and on

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that count, they were sentenced to undergo R.I. for three years each for

the offence under Section 307/34 of I.P.C. and R.I. for one year for the

offence under Section 325/34 of I.P.C.

2. Heard Mr. Abhas Mohanty, learned counsel for the appellants and

Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State.

3. The prosecution case, in brief, is that the injured, Bhima Naik

(P.W.3), and his wife, Labanya Naik (P.W.2), were residing in a hut

situated away from their village, where they were engaged in the

business of collecting tari (country liquor) from date palm trees. On

02.03.1997, a quarrel took place between the injured and the accused

persons over the taking of tari. On such account, accused Binod @

Ashram Sandha (appellant No.1) left the place without taking liquor and,

while leaving, threatened the injured that they would teach him a lesson.

On the following night, i.e., 03.03.1997, at about 11.00 p.m., while

Bhima Naik (P.W.3) and his wife Labanya Naik (P.W.2) were asleep in

their hut, both the accused persons allegedly came there, armed with

lathi and knife, and assaulted the injured severely. Thereafter, they left

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the spot. On receiving information about the occurrence, the son of the

injured, namely, Udhaba Naik (P.W.1) came from the village and found

his father in a seriously injured condition. In the early hours of the

following morning, he removed his father to the District Headquarters

Hospital, Sundargarh. On 05.03.1997, he presented a written report

before the Officer-in-Charge, Sadar Police Station.

Upon receipt of the said report, the then Inspector-in-Charge, Sri

B.M. Mishra, registered the case and directed the A.S.I., P.N. Pati

(P.W.8) to take up the investigation. During investigation, the said A.S.I.

issued necessary medical requisition for examination of the injured and

proceeded to the spot. He seized one lathi lying near a date palm tree

situated close to the hut where the injured was residing. He also seized

the caste certificate of the injured from the informant. On 25.04.1997,

pursuant to the direction of the Deputy Superintendent of Police,

Sundargarh, the case was made over to the Inspector-in-Charge. After

taking over the investigation, the I.I.C. examined the witnesses already

examined by the A.S.I. and, on completion of the investigation,

submitted charge-sheet against the accused persons. Hence, the case.

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Upon the charges being read over and explained to the accused

persons, they pleaded not guilty and claimed to be tried. In their

respective statements recorded under Section 313 of the Cr.P.C., accused

Ashram Sandha (appellant No.1), who stated himself to be a Peon in the

R.W.S.S. Department, took the plea of alibi and stated that on the night

of occurrence, he was not present in the village and was at Sundargarh.

He further alleged that the police had unnecessarily arrested him in a

false case. The other accused, Ramesh Sahu, stated that he had been

falsely implicated in the case.

4. On behalf of the prosecution, as many as eight witnesses have

been examined, whereas the defence examined one witness. P.W.3 is the

injured witness; P.Ws.1 and 2 are his son and wife, respectively. P.W.4

was an independent witness who had allegedly witnessed the occurrence,

but he was declared hostile. P.W.5 was the Medical Officer who

examined the injured. P.W.6 was the Gramrakhi, while P.W.7 was the

Havildar in whose presence the lathi was seized. P.W.8 was the A.S.I.

who conducted part of the investigation. The sole defence witness,

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Bhikari Kisan, has deposed only with regard to the character of accused

Kunda @ Asharam Sandha alias Binod Raxa.

5. The learned trial Court, upon appreciation of the evidence on

record and finding the defence pleas to be inconsistent with the medical

evidence and unsubstantiated, held that the prosecution had established

the complicity of both the accused persons in the occurrence and,

accordingly, convicted them under Sections 325 and 307 read with

Section 34 of the I.P.C. For convenience of ready reference, relevant part

of the said judgment is reproduced hereunder:-

“13. It be further noted here that during trial the accused

persons took several pleas that the injured had sustained

injuries after a fall from a date-palm tree situated near his

house but during their examinations under section 313

Cr.p.C. no such plea was taken by any of the accused

persons. On the other hand, the doctor has categorically

stated during cross-examination that the injuries found on

the body of the injured cannot be possible by a fall from a

tree. In these premises, the plea of the accused persons as

taken during trial appears to be quite false. The said plea

also not being consistent with their stand taken u/s. 313

Cr.P.C. that itself forms an additional link in the chain of

circumstance to bring home the charges against the

accused persons as held by the Apex Court in the case of

Chandra Sekhar Rao etc. vrs. Ponna Satyanarayan etc.

reported in 2000(II) Crime 328 Supreme Court. In the said

case when the accused instead of explaining the various

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circumstances against him had simply denied the same in

his examination u/s.313 Cr.P.C. it was held that the same

would form an additional link in the chain of

circumstance against the accused. Furthermore though in

his statement accused Ashram Sandha took a plea of alibi

he is found to have not discharged his onus of proving the

same. Even though one defence witness was examined in

support of the said plea the said witness instead of telling

about the plea of alibi has simply deposed that accused

Ashram Sandha was a person of good character, which is

of no consequence. Therefore, in any view of the matter

the complicity of the accused persons with the crime

cannot be ruled out.

14. Thus, while concluding my findings on charges u/s.

325/307 I.P.C., I hold that the prosecution has been able

to establish the above charges against both the accused

persons. Therefore, in the result, I hold each of them

guilty under sections 325/307 read with S.34 I.P.C. and

convict them thereunder.”

6. Similarly, the learned trial Court, upon appreciation of the

evidence, found that the essential ingredients of the offence under

Section 3(1)(x) of the SC & ST (PoA) Act, particularly the element of

intentional humiliation on the ground of caste, had not been established

by the prosecution and, accordingly, acquitted the accused persons of the

said charge. Relevant part of the said judgment is reproduced thus:-

“15. As regards the charge u/s.3(1)(x) of the S.C.& S.T.

(prevention of Attrocities)Act. It is the well settled law

that to establish a charge under the aforesaid section the

prosecution should come up with sufficient materials to

establish that the offence under the I.P.C. was committed

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intentionally by taking advantage of the caste of a person

belonging to Scheduled caste or scheduled tribe and it is

also to be shown that the accused persons would not have

committed the crime had the victim not being a member

of scheduled caste or scheduled tribe. To establish the

case, a caste certificate has no doubt been produced but

when the incident is found to have taken place in the dead

of night at a solitary place away from the main basti area,

it cannot be said that the said offence was committed with

a view to humiliate the injured. So much so neither the

injured nor his wife (P.W.2) have uttered a single ward

that the offence under the I.P.C. was committed with a

view to humiliate the injured and therefore, I hold that the

prosecution has not been able to establish the said charge

under section 3(1)(x) of the S.C.& S.T. (prevention of

Attrocities) Act beyond that and accordingly both the

accused persons are acquitted from the said charge

u/s.235 (1) Cr.P.C.”

Since the aforementioned order of acquittal has not been

challenged by the State, this Court, at this belated stage, is not inclined to

examine the merits of the said findings or to re-appreciate the evidences

in that regard. Accordingly, the present appeal is confined to the

challenge to the conviction of the appellants for the offences punishable

under Sections 325/307/34 of the I.P.C.

7. P.W.3 is the injured in the present case. He did not support the

prosecution case and was, accordingly, declared hostile. However, he has

stated that he was assaulted on the night of the occurrence and, after

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sustaining an injury on his head, was removed to the hospital. He has

stated that he could not identify the assailants, but his wife had witnessed

the occurrence.

P.W.2, the wife of the injured (P.W.3), has deposed that appellant

No.2, Ramesh Sahu, assaulted her husband with a knife, while appellant

No.1, Ashram Sandha, assaulted him with a lathi. She thereafter went to

the village to call the villagers and, on her return, found that the accused

persons had already left the place of occurrence. Finding her husband

seriously injured, she took him to Sundargarh Hospital for treatment. In

her cross-examination, however, she admitted that she had not stated

before the police that appellant No.2 had assaulted her husband with a

knife.

P.W.5, the doctor who examined the injured (P.W.3), found the

following injuries:-

“1) Lacerated wound of size. 2" x ½” x ½” on the left side

forehead just above the left eyebrow.

2) Lacerated wound of size 1½ x ½ x ½" on the left side

forehead just above the injury No.1.

3)Lacerated wound of size 2”x 1/3" x ½” on the left part

chest anterior axilary fold.

4) Lacerated wound with contusion of size 3" x ½” x ½”

on the left back part of the elbow joint.

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5) Simple fracture of both radious and ulna of left side at

one third point.

6) Simple fracture of ribs on left side 7th, 8th and 9th.

7) Abrasion with contusion of size 4" x 1/3" on the back

part of the chest adjacent to right scapula.

8) Abrasion with contusion of size 3 x 1/3" below the left

scapula.

9) Abrasion with contusion 3"x 1/3" below the left

scapula which corresponds to the fracture of ribs.”

The Investigating Officer (P.W.8) could recover only the lathi

allegedly used in the commission of the offence. However, the knife

allegedly used by appellant No.2 to assault P.W.1 could not be

recovered. In his cross-examination, the I.O., at paragraph-9, has stated

as under:-

“9. It is a fact that P.W.1 Udhaba Naik did not state before

me that on 3.3.97 night the accused persons quarrelled with

the injured before assaulting him. It is also a fact that he did

not state before me that the injured was assaulted with by

means of bhujali (he stated about the use of a knife). It is a

fact that witness Labanya Naik did not state to me

specifically that the accused Ramesh assaulted with a

knife(she stated that accused Ramesh was holding a knife).

It is also a fact that the witness has not stated before me

that she had rushed to the village to call the villagers and

by the time she reached the accused persons had left the

scene of occurrence. (She stated that on hearing the hullah

Silas Barla, the villagers had reached near her house). It is a

fact that the witness Labnya Naik has not taken the name of

accused Ashram Sandh in her statement before me (She

simply mentioned that one unknown boy was present with

accused Ramesh)”.

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8. From the evidence of all these witnesses and the medical

evidence, one thing could be safely inferred that the incident although

had happened and P.W.3 has sustained injuries in the incident but what

were the weapon of offence used in the commission of crime did not

come to the fore. Only a lathi was recovered, whereas the allegation

regarding use of a knife by appellant No.2 is not worthy of reliance,

particularly in view of the omission of P.W.2 to state such fact before the

police under Section 161 Cr.P.C. None of the witnesses have spoken

about the use of any bhujali. In the absence of cogent evidence regarding

the weapon and manner of assault, the requisite intention or knowledge

necessary to constitute an offence under Section 307 I.P.C. cannot be

said to have been established beyond reasonable doubt. Accordingly, the

appellants are entitled to the benefit of doubt in respect of the charge

under Section 307 I.P.C.

However, the medical evidence establishes that P.W.3 sustained

nine injuries, out of which injury Nos.5 and 6, were grievous in nature.

The conviction of the appellants under Section 325 read with Section 34

I.P.C. is, therefore, sustainable. Accordingly, while acquitting the

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appellants of the offence under Section 307 I.P.C., their conviction under

Section 325 read with Section 34 I.P.C. is upheld.

9. At the outset, Mr. Mohanty, learned counsel for the appellants

submitted that he would confine his challenge to the quantum of

sentence. He further submitted that the present appeal, preferred in the

year 2000, has remained pending for more than twenty-five years. It was

argued that the occurrence dates back to the year 1997, when the

appellant No.1 was about 29 years of age and the appellant No.2 was 24

years of age. They are now in their mid-fifties and it is submitted that,

with the passage of time, they have settled in life and have been leading

a stable and law-abiding life. According to the learned counsel, directing

the appellants to undergo the remaining part of the sentence after such an

inordinate lapse of time would serve no meaningful purpose.

Learned counsel further submitted that the appellants have no

criminal antecedents and that no other criminal case is stated to be

pending against them. It was urged that the appellants have, over the

years, remained integrated with society and is leading a settled family

life. In such circumstances, their incarceration at this distant point of

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time would neither advance the ends of justice nor serve any meaningful

penological objective. Accordingly, it was prayed that, having regard to

the long passage of time, the nature of the offence, the antecedents of the

appellants, and the overall facts and circumstances of the case, this Court

may extend to the appellants the benefit of the provisions of the

Probation of Offenders Act, 1958.

10. It is relevant to note that the prayer made by the appellants before

the learned trial Court for extending the benefit of the Probation of

Offenders Act, 1958, read with Section 360 of the Cr.P.C., was declined,

having regard to the brutality of the offence and the nature of the injuries

sustained by P.W.3. However, while considering the prayer made before

this Court, certain subsequent and mitigating circumstances cannot be

lost sight of. The occurrence dates back to the year 1997, when the

appellants were in their late twenties. They were convicted by the

impugned judgment and order of sentence passed by the learned trial

Court, and the present appeal has remained pending since the year 2000.

The appellants are now in their mid-fifties. Thus, considerable time has

elapsed since the occurrence, and much water has flown under the

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bridge. It is further not in dispute that they have no criminal antecedents

and no other criminal case is stated to be pending against them. In the

interregnum, they have led a settled family life and remained integrated

with society. In such circumstances, this Court is of the considered view

that this is a fit case where the benefit contemplated under the Probation

of Offenders Act, 1958 deserves to be extended to the appellants. 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 counsel for the appellants seeking extension of the benefit under

the Probation of Offenders Act merits consideration.

11. The Hon'ble Supreme Court in Chellammal (supra) has

elaborately explained the scope, object and significance of the Probation

1

2025 INSC 540

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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

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

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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 325 of the Indian Penal Code, the long lapse of more than

twenty-five years since the occurrence, the absence of any criminal

antecedent 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 are also covered by

ratio of the judgment of this Court in the case of Pathani Parida &

another vs. Abhaya Kumar Jagdevmohapatra

2

and Dhani @

Dhaneswar Sahu vs. State of Orissa

3

. In view of the aforesaid legal

position and the peculiar facts and circumstances of the case, this Court

2

2012 (Supp-II) OLR 469

3

2007 (Supp.II) OLR 250

Page 16 of 16

is inclined to extend to the appellants the benefit contemplated under

Section 4 of the Probation of Offenders Act.

12. Hence, the present Criminal Appeal in so far as the conviction is

concerned is turned down. But instead of sentencing the appellants to

suffer imprisonment, this Court directs the appellants to be released

under Section 4 of the Probation of Offenders Act 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 under the supervision of the concerned Probation Officer

during the aforementioned period of one year.

13. Accordingly, the Criminal Appeal is partly allowed.

(S.S. Mishra)

Judge

The High Court of Orissa, Cuttack

Dated the 25

th

August, 2026/Swarna