DAYA ROUT vs STATE

THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.82 of 2009

CNR No.ODHC010035842009
(In the matter of an application under Section 374 (2) of the Criminal
Procedure Code, 1973 )

Daya Rout ……. Appellant

-Versus-
State of Orissa ……. Respondent

For the Appellant : Mr. Prasanna Panda, Advocate
Mr. B. Rout, Advocate

For the Respondent : Mr. R.B. Dash, ASC


CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 22.09.2026 : Date of Judgment: 31.10.2026

S.S. Mishra, J. The present appeal is directed against the judgment of
conviction and order of sentence dated 26.12.2008 passed by the learned
Additional Sessions Judge (F.T.C.), Balangir at Patnagarh in Sessions
Case No.86/16 of 2007-08, arising out of G.R. Case No.356 of 2006,

whereby the appellant while acquitted under Section 324/307/34, was
convicted for the offence punishable under Section 323 of the Indian
Penal Code and was sentenced for the period already undergone i.e. 53
days during investigation and trial and also directed to pay a
compensation of Rs.1000/- within two months to P.W.1 Dhruba Majhi.
2. Heard Mr. Prasanna Panda and Mr. B. Rout, learned counsel
appearing for the appellant and Mr. R.B. Dash, learned Additional
Standing Counsel appearing for the State.
3. The prosecution case, in brief, is that on 18.10.2006 at about 6.00
P.M., the informant Dhruba Majhi was tending his cattle near the gochar
land of the village. At that time, the appellant Daya Rout and his father
co-accused Dirju Rout came there and questioned the informant as to
why his cattle had damaged their paddy. It was alleged that the appellant
and the co-accused snatched the goad stick from the hand of the
informant and assaulted him. The appellant was specifically alleged to
have dealt blows to the head of the informant, resulting in bleeding
injuries. On hearing the shouts of the injured, P.Ws.2 and 3 came to the
spot and thereafter the injured was taken towards the police station and

Page 2 of 10

hospital. The police investigated the matter, examined the witnesses,
seized the blood-stained dhoti of the injured and a stick and, after
completion of investigation, submitted charge-sheet.
4. In support of its case, the prosecution examined six witnesses.
P.W.1 is the injured-informant; P.Ws.2 and 3 were post-occurrence
witnesses; P.W.4 was the doctor; P.W.5 was a seizure witness and P.W.6
was the Investigating Officer. The defence also examined two witnesses.
5. The learned trial Court, upon appreciation of the evidence, did not
find sufficient material to sustain the allegation against co-accused Dirju
Rout and acquitted him. So far as the present appellant is concerned, the
learned trial Court found that the evidence of the injured, corroborated
by the medical evidence and other surrounding circumstances,
established that the appellant had caused simple injuries to P.W.1 by
means of a stick. The learned trial Court, however, did not accept the
allegation relating to an attempt to commit murder and accordingly held
that the act of the appellant constituted an offence punishable under
Section 323 of the IPC. The relevant part of the aforesaid judgment is
reproduced herein for ready reference:-

Page 3 of 10

“8- Now the next question comes for consideration
as to nature of offence committed by the accused
Daya Rout. It is in the evidence of the prosecution
witnesses that the accused Daya Rout when arrived
at the spot and challenged the victim-injured, he was
not armed with any weapon and on the spur of
moment being enraged with damage of their crop,
he snatched the goad stick from the hand of the
informant and dealt one blow and the injury on the
head does not cause any deep injury. P.Ws. 2 and 3
have stated that seeing them the accused persons
fled away. Accused Daya Rout had enough
opportunity to assault the injured by means of that
stick severely on his head, but he did not do so and
there was no other person to prevent him from that
assault. The weapon of offence-stick is a small one
and ordinarily used for tending of buffaloes. As such
that is not a dangerous or sharp cutting weapon.
From the entire scenario it is crystal clear that the
accused Daya Rout never intended or attempted to
cause the murder of the victim P.W.1 although it is
amply proved that he caused simple injuries on the
head of P.W.1. As such the offence comes under
section 323 of the India Penal Code, even if the
charge is in aid of section 34 of the IPC. However,
for his individual act he is liable to be convicted for
the offence U/s. 323 of the IPC and I convict the
accused Daya Rout for the offence U/s. 323 IPC as
the prosecution has fully established beyond
reasonable doubt that he caused voluntary hurt to
the victim P.W.1.
9- In the result the accused persons are acquitted
from the charge U/s. 324/307/34 IPC and accused
Daya Rout is convicted for the offence U/s. 323
IPC.”


Page 4 of 10

6. Having heard learned counsel for the parties and having carefully
examined the evidence and the findings recorded by the learned trial
Court, this Court finds that the conviction of the appellant under Section
323 of the IPC does not call for interference. The incident appears to
have arisen out of a sudden dispute between persons who were
previously on talking terms. P.W.1 is the injured witness and his
presence at the place of occurrence has been established. His version
regarding the assault finds material corroboration from the medical
evidence. The doctor found lacerations on the head and bruises on the
forearm and leg, all of which were simple in nature and caused by a hard
and blunt object. The medical evidence was thus found consistent with
the occurrence as narrated by the injured.
The evidence of P.Ws.2 and 3 also establishes the immediate
post-occurrence circumstances. Both witnesses reached the spot upon
hearing the cries of the injured and found him lying with bleeding
injuries on his head. The learned trial Court, while appreciating their
evidence, noticed that they had not actually witnessed the assault, but
their evidence was relevant to the immediate aftermath of the

Page 5 of 10

occurrence. The seizure evidence also formed part of the circumstances
considered by the learned trial Court.
7. In the aforesaid factual background, the conviction of the
appellant under Section 323 of the IPC is found to be sustainable. The
appeal, insofar as the finding of guilt is concerned, therefore, does not
warrant interference. The question that remains for consideration is
whether the appellant is entitled to the benefit of the Probation of
Offenders Act, 1958, having regard to the nature of the offence, the
circumstances in which it was committed, and the antecedents of the
appellant.

8. The Hon'ble Supreme Court in Chellammal and Another v. State
1
represented by the 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.

1
2025 INSC 540

Page 6 of 10

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
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 the society. 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

Page 7 of 10

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.”

In the present case, the conviction is confined to the offence
of voluntarily causing simple hurt under Section 323 of the IPC. There is
no finding of premeditation or use of a deadly weapon, and the
occurrence arose out of a sudden quarrel. The absence of criminal
antecedents, the nature of the injuries, and the relationship between the
parties prior to the occurrence are relevant mitigating circumstances.

Page 8 of 10

This Court is also mindful that the appellant has already undergone 53
days of imprisonment during investigation and trial and has, therefore,
experienced the consequences of the criminal proceedings. Having
regard to the considerable lapse of time since the occurrence, the nature
of the offence, the mitigating circumstances recorded by the learned trial
Court, and the period of imprisonment already undergone, this Court is
of the considered view that the appellant deserves to be extended the
benefit contemplated under Section 4 of the Probation of Offenders Act,
1958, instead of directing the appellant to undergo the remaining part of
the sentence. In view of the aforesaid, this Court is inclined to extend the
appellant the benefit contemplated under Section 4 of the Probation of
Offenders Act.
9. Hence, the present Criminal Appeal in so far as the conviction is
concerned is turned down. But instead of sentencing the appellant, this
Court directs the appellant to be released under Section 4 of the
Probation of Offenders Act for a period of three months 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

Page 9 of 10

upon during such period and in the meantime, the appellant shall keep
peace and good behavior and he shall remain under the supervision of
the concerned Probation Officer during the aforementioned period of
three months.
10. Accordingly, the Criminal Appeal is partly allowed.

(S.S. Mishra)
Judge










The High Court of Orissa, Cuttack
st
Dated the 31 day of October, 2026/ Subhasis Mohanty
Signature Not Verified
Digitally Signed
Signed by: SUBHASIS MOHANTY
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 02-Nov-2026 10:58:32

Page 10 of 10