MAGUNI ROUT vs STATE
- Court
- Odisha High Court
THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.304 of 2006
(In the matter of an application under Section 374 of Criminal Procedure
Code )
1. Maguni Rout
2. Dillip Rout @ Dillip Kumar Rout
3. Pradeep Kumar Rout Appellants
…….
-Versus-
State of Odisha ……. Respondent
For the Appellants : Mr. Jeevan Pradhan, Advocate
For the Respondent : Ms. Suvalaxmi Devi, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 06.10.2026 : Date of Judgment: 31.10.2026
S.S. Mishra, J. The present appeal has been filed assailing the
judgment of conviction and order of sentence dated 12.07.2006 passed
by the learned Additional Sessions Judge-cum-Special Judge, Baripada,
in G.R. Case No.759 of 1999 (T.C. No.32 of 2002), whereby the
appellants, while being acquitted of the charges under Sections 341/294
read with Section 34 of the Indian Penal Code (hereinafter referred to as
the “I.P.C.”) and Section 3(x) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, were held guilty and convicted
under Sections 323/325 read with Section 34 of the I.P.C. and sentenced
to undergo rigorous imprisonment for six months and to pay a fine of Rs.
500/- each, in default whereof to undergo rigorous imprisonment for one
month, for the offence punishable under Section 325 of the I.P.C.,
without imposing any separate sentence for the offence under Section
323 of the I.P.C.
2. Heard Mr. Jeevan Pradhan, learned counsel appearing for the
appellants, and Ms. Suvalaxmi Devi, learned Additional Standing
Counsel (ASC) appearing for the respondent-State.
3. Although the appeal was jointly preferred by three appellants,
during its pendency, it was brought to the notice of this Court that
appellant No.1, Maguni Rout, has expired. Accordingly, vide order dated
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05.08.2025, the appeal stood abated qua appellant No.1, there being no
application under Section 394 of the Code of Criminal Procedure, 1973
either by the legal representatives of the deceased appellant or his next
friend. Consequently, the present appeal is confined to consideration of
the case of appellant Nos. 2 and 3.
4. The prosecution case, in brief, is that on 25.07.1999 at about 5:00
p.m., while the son of the informant had gone to raise a ridge on the land
of the accused persons to facilitate the flow of water to his own land,
accused Maguni came to the spot and assaulted him by giving a slap.
Subsequently, upon receiving information about the incident, when the
informant questioned the accused persons, they abused him in filthy
language, threatened to take away his life and assaulted him, as a result
of which he sustained injuries on different parts of his body. It was
further alleged that accused Pradeep pressed the informant's testicles and
left him only after the intervention of his son. On 27.07.1999, the
informant lodged a written report before the Officer-in-Charge of
Baisinga Police Station, on the basis of which Baisinga P.S. Case No. 89
of 1999 was registered and investigation was taken up. During
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investigation, the witnesses were examined, the injured was sent for
medical examination and his caste certificate was seized. Upon
completion of the investigation, the police submitted a charge sheet
against the accused persons for standing trial. The accused persons were
charged under Sections 341/294/323/325 read with Section 34 of the
I.P.C. and Section 3(x) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act.
The plea of the accused persons was one of complete denial, with
the further defence that, owing to prior enmity, they had been falsely
implicated in the case. It was also their case that the informant and his
son had assaulted the wife of accused Maguni and the present case had
been foisted upon them to avoid criminal liability.
5. To substantiate the charges, the prosecution examined seven
witnesses, including the doctor (P.W.6) and the Investigating Officer
(P.W.7). P.W.1 is the informant, while P.W.2 is his son. P.Ws.3 and 4
were independent witnesses to the occurrence, and P.W.5 was a seizure
witness. The doctor examined the injuries sustained by the informant,
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while the Investigating Officer conducted the investigation. No evidence
was adduced by the accused persons in their defence.
6. Upon appreciation of the oral and medical evidence on record, the
learned trial Court found that the prosecution had failed to establish the
charges under Sections 341/294 read with Section 34 of the I.P.C. and
Section 3(x) of the S.C. & S.T. (Prevention of Atrocities) Act. However,
placing reliance on the evidence of the informant and the other
prosecution witnesses, as well as the medical evidence, the learned trial
Court held the accused persons guilty of the offences punishable under
Sections 323/325 read with Section 34 of the I.P.C. and convicted them
thereunder. The relevant findings recorded by the learned trial Court in
paragraphs 11 to 13 of the impugned judgment are extracted
hereinbelow:-
“11. No doub t, the informant has sustained injuries on
his person and the doctor (P.W.6) opined injury No. 1
as grievous in nature, and the other injuries as simple
in nature. As regards the cause of injuries, the evidence
of P.W.1 is clearly reveals that due to assault by both
the accused persons, he has sustained injuries on his
person. Independent witnesses (P.Ws. 3 and 4) have
admitted in their evidence regarding quarrel between
both the parties. Simply because of enmity between the
parties and delay in lodging the F.I.R., the entire
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evidence of P.Ws. 1 and 2 should not be thrown out
when their evidence remains unshaken throughout.
12. On scrutinising the evidence on record, as
discussed above, I find there is no sufficient evidence to
implicate the accused persons for the charges U/S.
341/294/34 I.P.C. and U/S. 3(x) of the S.C. & S.T.
(P.A.) Act, for which they are entitled to be acquitted
from the said charges. But on the other hand,
prosecution has well established its case U/S. 323/325
I.P.C. against all the accused persons beyond all
reasonable doubts.
13. In the result, as discussed above, the accused
persons are held not guilty, U/S. 341/294/34 I.P.C. read
with Sec. 3(x) of the S.C. & S.T. (P.A.) Act and are
acquitted from the said charges as per Section 235(1)
Cr.P.C. But the accused persons are held guilty U/S.
325/323/34 I.P.C. and are convicted thereunder.”
7. Being aggrieved by the aforesaid judgment of conviction and
order of sentence dated 12.07.2006 passed by the learned Additional
Sessions Judge-cum-Special Judge, Baripada, in G.R. Case No. 759 of
1999 (T.C. No. 32 of 2002), whereby they were convicted for the
offences punishable under Sections 323/325 read with Section 34 of the
I.P.C. and sentenced as aforesaid, the appellants have preferred the
present appeal challenging the legality and sustainability of the
impugned judgment. Since the appeal has abated qua appellant No. 1, the
challenge in the present appeal is confined to appellant Nos. 2 and 3.
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8. At the outset, learned counsel appearing for the appellants
submitted that he would confine his submissions to the question of
sentence without assailing the findings of conviction on merits. It was
contended that the occurrence took place on 25.07.1999 and the learned
trial Court passed the judgment of conviction and order of sentence on
12.07.2006. The present appeal has, thus, remained pending for a
considerable period of time. Learned counsel further submitted that
appellant No. 2 was about 33 years of age and appellant No. 3 was about
42 years of age at the time of passing of the judgment by the learned trial
Court and, as on date, they are approximately 53 and 62 years old,
respectively. It was further submitted that the appellants have since
settled in life and having regard to the long passage of time since the
occurrence, directing them to undergo the substantive sentence at this
distant point of time would serve no meaningful purpose.
Learned counsel also submitted that the appellants have no
criminal antecedents and that no other criminal case is stated to be
pending against them. It was contended that they have remained
integrated with society over the years and are leading peaceful lives. In
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such circumstances, their 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 offences, the antecedents of the
appellants and the overall facts and circumstances of the case, this Court
may extend them the benefit of the provisions of the Probation of
Offenders Act, 1958.
9. Upon a careful appraisal of the evidence on record and the facts
and circumstances of the present case, this Court finds no compelling
reason to interfere with the findings recorded by the learned trial Court.
The evidence of the informant (P.W.1) and his son (P.W.2), who is the
material witnesses to the occurrence, finds corroboration from the
testimony of the other prosecution witnesses, particularly P.Ws.3 and 4,
who have spoken about the quarrel between the parties. Their evidence
also receives support from the medical evidence of P.W.6, who
examined the informant and opined that one of the injuries sustained by
him was grievous in nature, while the remaining injuries were simple.
Nothing material has been elicited in their cross-examination to discredit
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their testimony insofar as the assault and the injuries sustained by the
informant are concerned. The mere existence of prior enmity between
the parties and the delay in lodging the F.I.R., in the absence of any
material circumstance rendering the prosecution version unreliable,
would not, by themselves, be sufficient to discard the otherwise credible
evidence on record. This Court, therefore, finds that the prosecution has
established the guilt of the appellants, namely appellant Nos. 2 and 3, for
the offences punishable under Sections 323 and 325 read with Section 34
of the Indian Penal Code beyond reasonable doubt. Accordingly, the
conviction recorded by the learned trial Court does not warrant
interference.
10. The record reveals that the occurrence took place on 25.07.1999.
Appellant No. 2 was about 33 years of age and appellant No. 3 was
about 42 years of age at the time of passing of the judgment of
conviction and order of sentence by the learned trial Court on
12.07.2006. The present appeal has remained pending for a considerable
period of time. As of now, appellant Nos. 2 and 3 are approximately 53
and 62 years of age, respectively. More than 27 years have elapsed since
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the occurrence, and much water has flown under the bridge. It has been
submitted on behalf of the appellants that they have no criminal
antecedents, that no other criminal case is stated to be pending against
them, and that they have remained integrated with society over the years
and are leading settled lives. In such circumstances, having regard to the
nature of the offences, the age of the appellants, the long passage of time
since the occurrence and the overall facts and circumstances of the case,
this Court is of the considered view that the question of extending to
appellant Nos. 2 and 3 the benefit contemplated under the provisions of
the Probation of Offenders Act, 1958 deserves merit. The Hon'ble
Chellammal and Another v. State represented by the
Supreme Court in
1
Inspector of Police , 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
1
2025 INSC 540
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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
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
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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 and circumstances of the present case, particularly the nature of the
offences under Sections 323/325 read with Section 34 of the Indian
Penal Code, the long lapse of more than 27 years since the occurrence,
the age of appellant Nos. 2 and 3, the absence of any criminal
antecedents and the settled lives stated to be presently led by them, this
Court is of the considered opinion that appellant Nos. 2 and 3 deserve to
be extended the benefit contemplated under Section 4 of the Probation of
Offenders Act, 1958, instead of directing them to undergo the
substantive sentence imposed by the learned trial Court. Additionally,
the case of the appellants are also covered by the ratio of the judgments
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of this Court in the cases of Pathani Parida & another vs. Abhaya
2
Kumar Jagdevmohapatra Dhani @ Dhaneswar Sahu vs. State of
and
3
Orissa . 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.
12. Hence, the present Criminal Appeal, so far as the conviction is
concerned, stands unaltered. But instead of sentencing the appellants to
suffer imprisonment, this Court direct the appellants to be released under
Section 4 of the Probation of Offenders Act for a period of three months
on their executing a 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 behaviour and shall
remain under the supervision of the concerned Probation Officer during
the aforementioned period of three months.
2
2012 (Supp-II) OLR 469
3
2007 (Supp.II) OLR 250
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13. Accordingly, the Criminal Appeal is partly allowed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
st
Dated the 31 October, 2026/Swarna
Signature Not Verified
Digitally Signed
Signed by: SWARNAPRAVA DASH
Reason: Authentication
Location: High Court of Orissa
Date: 31-Oct-2026 19:59:11
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