THE HIGH COURT OF ORISSA AT CUTTACK

CRLA No. 408 of 2006

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

Procedure Code, 1973)

Prafulla Kumar Samantray …… Appellant

-Versus-

State of Orissa .….. Respondent

For the Appellant : Ms. Rakhi Mishra,

Amicus Curiae

For the Respondent : Mr. Jateswar Naik, AGA

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 07.04.2026 : Date of Judgment: 16.04.2026

S.S. Mishra, J. The sole appellant has filed this appeal assailing

the judgment of conviction and order of sentence dated 31.08.2006

passed by the learned Adhoc Additional Sessions Judge, Fast Track

Court, Rourkela in S.T. Case No. 60 /16 of 2006 [arising out of G.R.

Case No. 2364 of 2005], whereby the learned trial court convicted the

appellant under Section 325 of IPC and sentenced him to undergo R.I.

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for three years and to pay a fine of Rs.2,000/-, in default to undergo

R.I. for three months.

The appeal has been pending since 2006. When the

matter was taken up for hearing on 17.07.2025, none appeared for the

appellant. Therefore, this Court indicated in the order that on the next

date of hearing if none appeared for the appellant, Amicus Curiae will

be appointed. On 24.07.2025, since none appeared for the appellant

once again, Ms. Rakhi Mishra, learned counsel was appointed as

Amicus Curiae to assist the Court and she has readily accepted the

same.

2. Heard Ms. Rakhi Mishra, learned Amicus Curiae for the

appellant and Mr. Jateswar Naik, learned Additional Government

Advocate for the State.

3. The prosecution against the present accused was

commenced basing upon the FIR lodged by S.I. of Police of Plantsite

P.S. Rourkela on 29.12.05 while conducting enquiry in U.D. Case No.

37/05 after the death of the deceased. On 09.12.2005, the informant

was entrusted with enquiry in the aforesaid U.D. case after the death

of the deceased. He visited the spot, examined some witnesses,

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conducted inquest over the dead body of the deceased, which was

lying at Rourkela Govt. Hospital, in presence of the witnesses.

Subsequently, the deceased was sent for P.M. examination. On receipt

of the P.M. report on 27.12.2005, it was noticed that there was about

twelve numbers of external injuries. Since the death of the deceased

appeared to him suspicious, he lodged a written report, which was

registered by the I.I.C. of Plantsite P.S. and entrusted investigation to

another S.I. of Police who visited the spot, examined some witnesses

and prepared spot map in crime detail form. She seized some

incriminating materials from the spot including a bicycle. The

accused was arrested on 04.01.2006. The witnesses acquainted with

the facts of the case stated that on the date of occurrence the deceased,

who was staying with the accused in his house, was sitting outside the

house. The deceased was abusing the present accused and his wife.

The accused pulled her inside the house and closed the door.

Subsequently, the witnesses heard some sound from the house of the

accused. The deceased was taken to hospital on that day and

subsequently she died.

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4. On the basis of the written report of P.W.1, police

registered the case and investigation was conducted and charge sheet

has been filed in the present case against the accused for the alleged

commission of offence u/s.302 of I.P.C. The accused took a stance of

complete denial and claimed trial. Accordingly, he was put to trial on

the charge, as mentioned above.

5. The prosecution in order to bring home the charges

examined as many as nine witnesses and exhibited eight documents.

Out of nine witnesses, P.W.1 was the S.I. of Police who lodged the

FIR; P.W.2 was an eye witness; P.Ws.3, 4, 6, 7 and 8 were the

persons of the locality, who did not support the prosecution case and

declared as hostile; P.W.5 was the Medical Officer, who conducted

autopsy over the dead body of the deceased; and P.W.9 was the I.O.

of the present case.

6. Although the appellant stood charged for the offence

under Section 302 of IPC, however the learned trial court after

analyzing the evidence brought on record by the prosecution arrived

at a conclusion that the evidence adduced by the prosecution to

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establish the charge was not sufficient to establish the guilt of the

appellant under Section 302 of IPC, as the basic ingredients required

to bring the offence under the mischief of Section 299 of IPC is

lacking in the present case. The learned trial court in paragraphs-12

and 13 has observed as under:-

“12. The next point to be considered whether it amounts to

culpable homicide amounting to murder or not.

Section 299 of I.P.C. has defined culpable homicide In order

to establish the culpable homicide the following ingredients

must be determined.

(A) There must be intention of causing death.

B) There must be intention of causing bodily injury as is

likely to cause death.

C) The person causing injury must brave knowledge that he

is likely by such act to cause death.

13. Here in this case, the evidence of p.w.2 does not reflect

for what reason the accused took a bold step in pulling the

deceased by holding her tuft of hair. The I.O. in her

examination-in-chief at para 5 stated that on the date of

occurrence the deceased was abusing her brother and her

sister-in-law. Thereafter, the accused pulled her inside and

unfortunate situation occurred. It also revealed from the

evidence of p.w.2 that there was some strained relationship

between the accused and the deceased for some family

matters. On the fateful day due to abusing by the deceased

the accused might have lost his tamper and pulled the

deceased inside the house by holding her tuft of her hair and

possibility of sustaining injury during tussle cannot be ruled

out. From this conduct it cannot be said that accused had

any intention to cause death nor it can be said that the

accused has intention to cause bodily injuries likely to cause

death. So also it cannot be attributed to this accused that he

had any knowledge that his act is likely to cause death of the

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deceased. Though the death of the deceased was due to some

physical force applied by the accused, but it cannot be

termed as culpable homicide as defined u/s 299 of the I.P.C.”

While arriving at the aforementioned conclusion the

learned trial court concluded that the injury sustained by the deceased

on her head which apparently caused by the appellant put the

deceased’s life into danger was ultimately led to her unfortunate

death. Therefore, in the absence of unsatisfactory evidence to fit into

the ingredients of Section 299 of IPC the appellant can’t be held

guilty for committing an offence of culpable homicide not amounting

to murder. Accordingly, he was convicted for offence under Section

325 of IPC instead U/s.302 IPC and on that count the appellant was

sentenced to undergo R.I. for three years and to pay a fine of

Rs.2,000/-, in default to undergo R.I. for three months.

7. Aggrieved by the judgment of conviction and order of

sentence dated 31.08.2006 passed by the learned trial court, the

appellant has filed the present appeal.

8. The conviction has been recorded by the learned trial

court primarily relying upon the evidence of P.W.2. The evidence of

P.W.2 according to the learned trial court stood corroborated with the

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evidence of P.W.5, the doctor, who conducted the post mortem and

exhibited the post mortem report as Ext.4. P.W.9 was the I.O., who

submitted the charge sheet against the appellant for alleged

commission of offence under Section 302 of IPC, her statement also

lend support to the testimony of P.W.2. Interestingly, although the

prosecution examined P.Ws.3, 6, 7 and 8 being independent witnesses

to support its case, but all of them have point blankly denied to have

any knowledge regarding the occurrence. The prosecutor has

extensively cross examined these witnesses, but to no advantage.

Therefore, the entire prosecution case hinges upon the evidence of

P.Ws.1, 2, 5 and 9.

9. The alleged incident had happened on 09.12.2005.

However, the FIR in the present case was lodged only on 27.12.2005

by P.W.1, who is a police officer. It appear on the record that when

the incident happened at the house of the appellant, who had dragged

his sister Kuni Samantray (deceased) from the Varandah and took her

inside the house and assaulted her, which was witnesses by P.W.2.

The appellant himself had taken the deceased to the hospital, where

she was declared dead. On the same day, an U.D. case being U.D.

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Case No.37 of 2005 was registered and inquest was conducted. After

receiving the post mortem report on 27.12.2005, P.W.1 noticed that

there was about 12 nos. of external injuries sustained by the deceased,

which are ante mortem in nature. Since the death of the deceased

appeared to P.W.1 suspicious, at his instance, the FIR was registered.

Therefore, the delay in registration of the FIR has been well explained

and that itself give impetus to the prosecution story explaining against

the appellant.

10. P.W.1, who was posted as an ASI of Police in his

statement stated that on 09.12.2005 he was posted as the ASI in the

Plant Site P.S. and he was entrusted to enquire into the U.D. Case

No.37 of 2005 regarding the death of one Kuni Samantray. He held

the inquest over the dead body and at the time of inquest he noticed

several injuries on the head of the deceased and other parts of the

body which has been mentioned in the inquest report and exhibited as

Ext.1. Literally, he had suspected the death of the deceased was due

to pain in her chest and falling down on the ground. After the inquest,

he sent the body of the deceased for post mortem examination. He

received the post mortem examination report on 27.12.2005. From the

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post mortem report he found that there are twelve nos. of injuries on

the body of the deceased and the cause of death was due to coma

resulting from head injury. As the death of the deceased appeared to

him as suspicious from the post mortem report and also from the

statement of other witnesses recorded during the inquiry of the U.D.

case, he suspected that deceased met a homicidal death. Therefore, he

drew up a plain paper FIR and intimated to the IIC, Plant Site P.S.

Ext.3 is the plain paper FIR and he identified the signature also. To

this, the defence made all-out effort to create doubt in the evidence of

P.W.1 by extensively cross examining him, but to no avail.

P.W.2, who is one of the neighbours, has supported the

prosecution, inter alia, deposing that the deceased was staying with

her brother (appellant) after she was divorced. The appellant and his

wife have been ill-treating the deceased. She has also deposed that she

herself has noticed the injury marks on the body of the deceased due

to assault by the accused and his sister-in-law. She has also deposed

that last year during the month of ‘Margasira’ in one Thursday the

accused and his wife mercilessly assaulted the deceased on the road in

front of her house and she noticed various injuries on the person of

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Kuni (deceased) on the neck due to such assault. On the next day, i.e.,

on Friday the deceased after taking bath in the nearby well was sitting

at the outside veranda of the house of the accused where the accused

pulled the deceased inside the house by holding tuft of hair of the

deceased and partially closed the door. She could see the accused

pushing the deceased against the wall and threshing her against the

wall. The deceased shouted and therefore the accused closed the door.

On the same day at about 12.00 to 1.00 noon the deceased was taken

to the medical in an auto rickshaw by the accused and subsequently

she came to know that she died on the same day. This witness was

very specific and categorical regarding the overt act made by the

appellant. She was put to cross examination. But the extensive cross

examination fails to favour the defence.

P.W.5. the doctor, who conducted the post mortem

examination, has found the following injuries:-

“a) One lacerated wound 1"x1/2" scalp deep on

the vertex.

b) Two linear scratch injuries 1cmm apart, 3

inches below interior angle of scapula.

c) One abrasion 1/2"x1/4" on the back of the

neck.

d) Two abrasions 1/4"x1/4" on left wrist.

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e). One abrasion 1and 1/2"x1/4" arranged semi-

circularly interrupted in between at 1/4" gap on

left face with convexity towards the left angle of

mouth.

f) One abrasion 1"x1/2" on the left neck below left

angle of mandible.

g) One abrasion 1/2"x1/2" on forehead

h) Two abrasions 3/4"x3/4" below left eye apart

i) One abrasions 1” x 1/4" over right eye brow.”

After finding as many as twelve injuries, which are

reflecting in the post mortem report, i.e. Ext.4, P.W.5 opined that the

cause of death was due to coma for the head injury, which took place

six to eight hours prior to the post mortem examination. The

testimony of P.W.5 was solidly corroborated with the evidence of

P.W.2.

P.W.9 was the I.O. of the present case. Her testimony

also lends support to the evidence of P.Ws.1 and 2.

11. Ms. Rakhi Mishra, learned Amicus Curiae appearing for

the appellant has strenuously argued that the evidence of P.W.2 is

riddled with contradictions. Therefore, the trustworthiness of such

evidence comes under the cloud of doubt particularly because five

independent witnesses of the same village did not support the

prosecution narrative. She has also pointed out various contradictions

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in the evidence of P.W.5 and P.W.9. To support her case, she has

relied upon the judgments of the Hon’ble Supreme Court in the cases

of Kannaiya vrs. The State of Madhya Pradesh, reported in 2025

INSC 1246 and Krishnegowda and others vrs. State of Karnataka by

Arkalgud Police (Criminal Appeal No. 635 of 2006 disposed of on

28

th

March, 2017).

The main thrust of her argument is that the sole evidence

of P.W.2 cannot be safely believed to sustain the conviction because

of contradictions. If the evidence of all three witnesses, namely,

P.Ws.1, 2 and 5 appreciated conjunctively, the chain of event fall

short to establish the guilt of the appellant.

12. The learned State Counsel also taken me to the evidence

of all the witnesses and submitted that no fault could be found from

the judgment of the learned Trial Court as the conviction recorded by

learned Trial Court is the culmination of right appreciation of

evidence available on record.

13. The learned trial court in paragraph-8 of the judgment

have analyzed the evidence of P.Ws. 2 and 5 and also taken into

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consideration the defence version. For convenience of ready

reference, para-8 of the judgment is reproduced below:-

“8. On careful reading of the evidence of P.W.2, if the

above contradiction is omitted from her statement, still

her evidence is very clear to the extent that she had

seen the accused pulled the deceased inside the house

by holding her tuft of hair. The said statement of p.w.2

was not at all controverted during cross-examination.

There is no material that p.w.2 had any enmity with the

accused. She had no reason to depose falsely against

him. The defence tried to establish that p.w.2 is a State

level Secretary of B.J.P. Mohila Morcha, whereas the

accused belongs to a different political party. For that

reason she deposed falsely. Such plea has not been

established in this case. Even if assuming for a moment

that there was any political rivalry between p.w.2 and

the accused, it is not expected from p.w.2 to depose

falsely against the accused that he had seen the

accused pulling the deceased by holding tuft of hair on

the date of occurrence. Her evidence cannot be

thrown away merely because there was political

rivalry between her with the accused. To that extent it

is believeable that on the date of occurrence the

accused pulled the deceased inside the house by

holding her tuft of hair. What happened inside the

house no-body can say. The evidence of D.W.1 the

mother of the accused and the deceased creates some

suspicion about the defence plea taken in this case. It is

not out of place to mention here that D.W.1 is an aged

old widow who is dependant upon the accused and she

resides with the accused and his wife. She deposed in

the court that on the day of occurrence, the deceased

suddenly fell down from the stair case and a cycle

lying there fell on her. She complained pain in her

body. She had taken to hospital where she died. During

her examination-in- chief she had stated that she did

not sustain any head injury or any injury.

Subsequently, she again stated that deceased sustained

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some injuries on her body. The statement of D.W.1 is

contrary to the oral and documentary evidence

adduced in this case through p.w.5. He had

categorically stated that the injuries over the head

resulted the death of the deceased which was not

challenged in this case. On the other hand D.W.1 the

mother of the deceased and the present accused

deposed in the court that the deceased did not sustain

any injury on her head. Such statement of D.W.1

creates suspicion about her version. As she is

dependant on the accused, she, in order to save his son

from any legal punishment took the help in deposing in

the court. Her evidence in such circumstance cannot be

acceptable. Rather, it can be said that her evidence has

been tendered in this case to rescue the accused from

the alleged charge levelled again him.”

14. The findings recorded by the learned trial court as

reproduced herein above if weighed with the evidence of P.Ws.1, 2, 5

and 9 is unjustified. Therefore, I am fully in agreement with the

findings returned by the learned trial court. Accordingly, the

judgment of conviction is liable to be affirmed.

15. The learned trial court while hearing on the question of

sentence has rejected the prayer made by the appellant to extend him

the benefit of P.O. Act. It is borne on record that the appellant was

arrested on 04.01.2006 and was released on bail on 13.04.2006.

Therefore, he has already undergone three months ten days in

custody. At the time of incident, the appellant was 40 years of age;

Page 15 of 20

hence at present he must be about sixty five years of age. The record

also reveals that he was a first time offender.

16. Learned Amicus Curiae appearing for the appellant has

submitted that the incident relates back to the year 2005. The

appellant has been convicted vide judgment dated 31.08.2006 and the

appeal is pending since 2006. He further submitted that over the

years, the appellant has led a dignified life, integrated well into

society, and is presently leading a settled family life. Incarcerating

him after such a long delay, it is argued, would serve little penological

purpose and may in fact be counter-productive, casting a needless

stigma not only upon him but also upon his family members,

especially when there is no suggestion of any repeat violation or

ongoing non-compliance with regulatory norms. Therefore, the

appellant may be treated under the Probation of Offenders Act.

17. The record reveals that the incident relates back to the

year 2005 and at that point of time the appellant was 40 years of age.

He has been convicted by the impugned judgment and order dated

31.08.2006. The present appeal is pending since 2006 and at present

the appellant is about 65 years of age. Much water has been flown

Page 16 of 20

under the bridge by now. Therefore, the prayer made by Ms. Mishra,

learned Amicus Curiae for the appellant for extending the benefit of

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

18. The Hon’ble Supreme Court in Chellammal and

Another v. State represented by the Inspector of Police

1

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 wide discretion upon the courts to release an

1

2025 INSC 540

Page 17 of 20

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 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

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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.”

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

Page 19 of 20

support from the decisions of this Court in Pathani Parida & another

vs. Abhaya Kumar Jagdevmohapatra

2

and Dhani @ Dhaneswar

Sahu vs. State of Orissa

3

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 the benefit

contemplated under Section 4 of the Probation of Offenders Act.

19. In such view of the matter, the present Criminal Appeal

in so far as the conviction is concerned, is turned down. But instead of

sentencing the appellant to suffer imprisonment, this Court directs the

appellant to be released under Section 4 of the Probation of Offenders

Act for a period of one year 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 shall keep

peace and good behavior and he shall remain under the supervision of

2

2012 (Supp-II) OLR 469

3

2007 (Supp.II) OLR 250

Page 20 of 20

the concerned Probation Officer during the aforementioned period of

one year.

20. Accordingly, the Criminal Appeal is partly allowed and

disposed of.

21. This Court records the appreciation for the effective and

meaningful assistance rendered by Ms. Rakhi Mishra, learned Amicus

Curiae. She is entitled to an honorarium of Rs.7,500/- (Rupees seven

thousand five hundred) to be paid as token of appreciation.

(S.S. Mishra)

Judge

The High Court of Orissa, Cuttack.

Dated the 16

th

of April, 2026/Ashok