THE HIGH COURT OF ORISSA AT CUTTACK

CRLA No.371 of 2006

CNR-ODHC010010402006

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

Procedure Code

)

Santosh Kumar Rout ……. Appellant

-Versus-

State of Orissa ……. Respondent

For the Appellant : Mr. Pradeep Kumar Rout, Amicus Curiae

For the Respondent : Mr. Jateswar Nayak, AGA

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 21.07.2026 : Date of Judgment: 30.07.2026

S.S. Mishra, J. The present appeal has been preferred by the

appellant assailing the judgment of conviction and the order of sentence

passed by the learned Ad hoc Additional Sessions Judge (F.T.C. No. IV),

Bhubaneswar in S.T. Case No. 592/81 of 2004, arising out of G.R. Case

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No. 1596 of 2003, corresponding to Balianta P.S. Case No. 68 of 2003,

whereby the appellant was convicted for the offence punishable under

Section 324 of the Indian Penal Code and sentenced to undergo rigorous

imprisonment for a period of one year and to pay a fine of ₹500/-, in

default, to undergo further rigorous imprisonment for one month.

2. The appeal is pending since 2006. When the matter was called

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

appointed Mr. Pradeep Kumar Rout, as Amicus Curiae vide order dated

24.07.2025 to assist the Court in the matter.

3. Heard Mr. Pradeep Kumar Rout, learned Amicus Curiae for the

appellant and Mr. Jateswar Nayak, learned Additional Government

Advocate for the State.

4. The prosecution case, as revealed from the First Information

Report (Ext.1), in brief, is that the informant, Laxman Pradhan (P.W.1),

is the son of the injured, Jugal Pradhan (P.W.7). On 10.05.2003 at about

8:00 A.M., while P.W.7 was sitting in his tea stall situated by the side of

the Balakati–Balipatna Main Road near the Telephone Office, the

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accused allegedly came to the shop, called P.W.7 a short distance away,

and embraced him. It is alleged that the accused thereafter took out a

knife from his pocket and stabbed P.W.7 on his left chest and abdomen.

When P.W.7 attempted to resist and catch hold of the knife, he also

sustained an injury on his right index finger, resulting in profuse

bleeding. Hearing his cries, the informant (P.W.1), along with

Krupasindhu Mohanty (P.W.3), Sukanta Rout (P.W.2), and another

witness, Pradipta Muduli (not examined), rushed to the spot, whereupon

the accused fled away carrying the knife. The injured was immediately

shifted to Balakati Hospital and, on the advice of the attending doctor,

was referred first to Capital Hospital, Bhubaneswar, and thereafter to

S.C.B. Medical College and Hospital, Cuttack, for better treatment.

On the basis of the written report lodged by P.W.1 at Balakati

Outpost, A.S.I. Rabindranath Swain (P.W.9) made the necessary Station

Diary Entry and, finding the allegations to disclose a cognizable offence

under Section 307 of the Indian Penal Code, forwarded the F.I.R. to the

Officer-in-Charge, Balianta Police Station, for registration of a formal

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case. Accordingly, Balianta P.S. Case No.68 of 2003 was registered

under Section 307 IPC, and P.W.9 was entrusted with the investigation.

During the course of investigation, P.W.9 visited the place of

occurrence and prepared the spot map (Ext.7). He seized the bicycle

allegedly left behind by the accused at the spot under seizure list

(Ext.5/1). Subsequently, on 13.05.2003, he seized the blood-stained

lungi of the injured, produced by P.W.1, under seizure list (Ext.8). On

12.12.2003, he seized the bed-head ticket of the injured from S.C.B.

Medical College and Hospital under seizure list (Ext.9), left the original

in the custody of the hospital staff under a zimanama (Ext.10), and

retained a photocopy thereof (Ext.6). Despite making efforts, he could

not apprehend the accused as he had absconded. On 01.01.2004, upon

receiving information that the accused had surrendered before the Court,

P.W.9 obtained police remand of the accused. While in police custody,

the accused is stated to have made a disclosure statement (Ext.3)

regarding the concealment of the weapon of offence in a kia bush.

Pursuant to the said disclosure, the accused led the police and witnesses

to the place of concealment, wherefrom a knife was recovered and seized

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under seizure list (Ext.4). The accused was thereafter medically

examined and produced before the Court upon expiry of the police

remand.

Subsequently, upon transfer of P.W.9, the investigation was taken

over by the Officer-in-Charge of Balianta Police Station. On completion

of the investigation, charge-sheet was submitted against the accused for

the offence punishable under Section 307 of the Indian Penal Code,

whereupon the case was committed to the Court of Session and the

accused stood trial.

5. The prosecution, in order to establish the charge against the

appellant, examined nine witnesses. Of them, P.W.1 is the informant and

the son of the injured, Jugal Pradhan (P.W.7); P.Ws.2 and 3 were the

eyewitnesses to the occurrence; P.W.4 was the doctor who examined and

treated the injured; P.Ws.5 and 6 were the witnesses to the seizure of the

weapon of offence (knife); P.W.8 was another doctor; and P.W.9 was the

Investigating Officer. The prosecution also relied upon documentary

evidence, which was marked as Exts.1 to 11.

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In defence, two witnesses were examined. The plea of the

appellant was one of complete denial of the prosecution allegations.

6. Upon a careful appreciation of the oral and documentary evidence

adduced by the prosecution, the learned trial Court came to the

conclusion that the prosecution had successfully established that the

injured, P.W.7, had sustained injuries on his chest and right index finger

and that the said injuries were caused by the appellant by means of a

knife. However, the learned trial Court held that the prosecution had

failed to prove the essential ingredients of the offence punishable under

Section 307 of the Indian Penal Code, particularly the intention or

knowledge on the part of the appellant to cause the death of the injured.

Taking note of the medical evidence that the stab injury was simple in

nature and the surrounding circumstances of the occurrence, the learned

trial Court held that the offence under Section 307 IPC was not made out

beyond reasonable doubt. Nevertheless, it found that the prosecution had

proved beyond reasonable doubt that the appellant had voluntarily

caused hurt to P.W.7 by means of a dangerous weapon, thereby

attracting the offence punishable under Section 324 IPC. Accordingly,

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while acquitting the appellant of the charge under Section 307 IPC, the

learned trial Court convicted him under Section 324 IPC and recorded

the following findings:

“11. In the light of above evidence it is clearly established

that P.W.7 sustained injury on his person i.e. on chest and

right index finger. It is also established that the accused

caused such injury by means of knife.

It is not necessary that in a case under Section 307 I.P.C. the

injury actually caused to victim of assault should be sufficient

under ordinary circumstances to cause his death. But the

Court has to see whether the act, irrespective of its result, was

done with the intention or knowledge to cause the death of

victim. An attempt in order need to be criminal need not be the

penultimate act. It is sufficient in law, if there is present an

intent coupled with some overt act in execution thereof the

circumstances that the injury inflicted by the accused was

simple or minor will not by itself rule out application under

Section 307 I.P.C.. The determinative question is intention or

knowledge, and not nature of the injury. In the instant case no

such attempt has been made by the prosecution to establish

through Doctor whether the injury was sufficient to cause

death under ordinary circumstances. Apart from this the

P.W.8 has stated in his evidence that the injury No.1 i.e. stab

wound is simple in nature. It is also in the evidence that after

the first stroke on the chest when the accused was attempting

to make further stroke the P.W.7 checked the same as a result

of which the same stroke hit on his right hand and thereafter

the accused fled away from the spot. Under the above facts

and circumstances, it cannot be said beyond all reasonable

doubt that the accused intended or has knowledge to cause

death of the victim. However, prosecution has well proved that

the accused assaulted the injured P.W.7 by means of a

dangerous weapon like knife for which the accused is liable

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for the offence under Section 324 I.P.C. In the above facts and

circumstances, the prosecution failed to prove the charge

under Section 307 I.P.C. against the accused beyond all

reasonable doubt but at the same time the prosecution well

proved the charge under Section 324 I.P.C.

12. In the result the accused is found not guilty under Section

307 of the Indian Penal Code and acquitted from the said

charge under Section 235 (1) Cr.P.C. However, the accused is

found guilty under Section 324 I.P.C. and convicted

thereunder.”

7. Accordingly, while acquitting the appellant of the charge under

Section 307 of the Indian Penal Code, the learned trial Court found him

guilty of the offence punishable under Section 324 of the Indian Penal

Code and sentenced him to undergo rigorous imprisonment for a period

of one year and to pay a fine of ₹500/-, in default, to undergo further

rigorous imprisonment for one month. Aggrieved by the said Judgment

of conviction and Order of sentence passed in S.T. Case No. 592/81 of

2004 arising out of G.R. Case No. 1596 of 2003, corresponding to

Balianta P.S. Case No. 68 of 2003, the present appeal has been preferred

by the appellant.

8. At the outset, Mr. Rout, learned Amicus Curiae appearing for the

appellant, fairly submitted that he would confine his arguments to the

question of sentence. Learned counsel submitted that the occurrence had

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taken place in the year 2003 and the present appeal, preferred in the year

2006, has remained pending for nearly two decades. It was contended

that the appellant, who was about 28 years of age at the time of the

occurrence, is now about 48 years old. It was further submitted that the

appellant has already undergone about 42 days in custody.

Learned counsel further submitted that the appellant has since

settled in life and that directing him to undergo the remaining part of the

sentence after such a prolonged lapse of time would serve no meaningful

purpose. It was also submitted that the appellant has no criminal

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

against him. According to the learned counsel, the appellant has

remained integrated with society over the years and is leading a peaceful

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

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

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may extend to him the benefit of the provisions of the Probation of

Offenders Act, 1958.

9. Upon a careful appraisal of the evidence on record and the

attendant facts and circumstances of the case, this Court finds no

infirmity in the findings recorded by the learned trial Court insofar as the

conviction of the appellant under Section 324 of the Indian Penal Code is

concerned. The evidence of the injured, P.W.7, regarding the manner of

assault is clear, cogent and trustworthy and finds due corroboration from

the testimonies of the eyewitnesses, P.Ws.1 to 3, as well as the medical

evidence adduced by P.Ws.4 and 8. The recovery of the weapon of

offence pursuant to the disclosure statement of the appellant further

lends assurance to the prosecution case. Nothing substantial has been

brought out in the cross-examination of the prosecution witnesses to

discredit their testimony or to create any reasonable doubt regarding the

occurrence. The learned trial Court has rightly held that the prosecution

failed to establish the ingredients of the offence under Section 307 IPC

but has successfully proved beyond reasonable doubt that the appellant

voluntarily caused hurt to P.W.7 by means of a dangerous weapon,

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thereby attracting the offence punishable under Section 324 IPC.

Consequently, the conviction of the appellant under Section 324 of the

Indian Penal Code warrants no interference.

10. The record reveals that the occurrence relates back to the year

2003. The appellant was about 28 years of age at the time of the incident.

He was 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 2006. As of now, the appellant is about 48 years

of age. Nearly two decades have elapsed since the occurrence, and

considerable time has passed thereafter. It is not in dispute that the

appellant has no criminal antecedents, no other criminal case is stated to

be pending against him, and that he has undergone about 42 days in

custody. During the interregnum, he has remained integrated with

society and is stated to be leading a settled and peaceful life. In such

circumstances, this Court is of the considered view that this is a fit case

for extending to the appellant the benefit contemplated under the

provisions of the Probation of Offenders Act, 1958. The Hon'ble

Supreme Court in Chellammal and Another v. State represented by the

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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

appellant 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

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,

1

2025 INSC 540

Page 13 of 15

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

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

years since the occurrence, the custody undergone, the absence of any

criminal antecedent and the settled life presently being led by the

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appellant, this Court is of the considered opinion that the appellant

deserves to be extended the benefit contemplated under Section 4 of the

Probation of Offenders Act, 1958, instead of directing him to undergo

the remaining part of the sentence. Additionally, the case of the appellant

is also covered by the ratio of the judgments of this Court in the cases 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 is inclined to extend to the appellant the benefit contemplated

under Section 4 of the Probation of Offenders Act.

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

concerned, stands unaltered. 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 a bond of Rs.5,000/- (Rupees Five Thousand) within one

month with one surety for the like amount to appear and receive the

2

2012 (Supp-II) OLR 469

3

2007 (Supp.II) OLR 250

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sentence when called upon during such period and, in the meantime, the

appellant shall keep peace and good behaviour and shall remain under

the supervision of the concerned Probation Officer during the

aforementioned period of one year. The appellant is also liable to pay a

compensation of Rs.10,000/- (Rupees ten thousand) to the injured U/s.5

of the P.O. Act within a period of 2 months from today.

13. Accordingly, the Criminal Appeal is partly allowed.

14. This Court acknowledges the effective and meaningful assistance

rendered by Mr. Pradeep Kumar Rout, 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 30

th

July, 2026/Subhasis Mohanty