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2025 Supreme(Online)(Ori) 6689

ORISSA HIGH COURT
Sibo Sankar Mishra, J
Sarbeswar Mahanta – Appellant
Versus
State of Orissa – Respondent
CRA No. 144 of 1999

Advocates:
For the Appellants/Petitioners: Kumudinee Panda
For the Respondents: Suvalaxmi Devi

Courts may grant probation to aged, first-time offenders in long-pending criminal matters, as the penological objective of criminal law is to reform the individual rather than solely inflict punishment, especially where evidence of specific overt acts is lacking against some accused.

Headnote:(A) Code of Criminal Procedure, 1973 - Sections 374, 394, 313, 235(2), 360 - Indian Penal Code, 1860 - Sections 147, 148, 447, 323, 149 - Probation of Offenders Act, 1958 - Section 4 - Criminal appeal - Abatement - Death of appellant - In the absence of an application by legal representatives, the appeal qua the deceased appellant stands abated. (Para 1)

(B) Evidence and proof - Overt acts - Insufficiency of evidence - Where prosecution witnesses fail to attribute specific overt acts to certain accused persons and their testimony lacks corroborative material, the conviction against those individuals cannot be sustained. (Paras 19, 20)

(C) Sentencing - Reformative approach - Long delay - Where an incident occurred decades prior and the offender is aged with no prior criminal record, the court may exercise discretion to grant the benefit of probation to prevent unnecessary hardship and promote individual reformation. (Paras 23, 24)

Facts of the case:
An appeal was filed by four individuals convicted of rioting and voluntarily causing hurt arising out of a land dispute. During the pendency, one appellant expired, resulting in the abatement of the appeal for him. The remaining appellants contested the conviction, arguing that the evidence was insufficient and they were falsely implicated. The trial court had based the conviction on the testimony of the victims, while the defense claimed a cross-case and denial of involvement.

Findings of Court:
The court found that the prosecution failed to prove the active participation or specific overt acts of two surviving appellants beyond reasonable doubt. However, the testimony regarding one appellant was found reliable and corroborated. Due to the advanced age of this appellant, the long time elapsed since the occurrence, and the absence of prior criminal history, the court affirmed the conviction but modified the sentence from imprisonment to probation.

Issues: The primary issues were whether the conviction could be sustained against all surviving appellants based on the available evidence and whether, upon conviction, an elderly first-time offender should be subjected to incarceration given the extreme lapse of time since the incident.

Ratio Decidendi: In the absence of concrete evidence attributing specific criminal acts to all members of an alleged unlawful assembly, the court cannot uphold a collective conviction. Furthermore, the modern trend in penology prioritizes the reformation of the offender over retributive punishment. Granting probation is appropriate when the offender has clean antecedents and is of advanced age, as prison life serves no reformative purpose in such delayed cases.

Result: Appeal allowed for two appellants; conviction of one appellant maintained but sentence modified to probation.

Table of Content
1. procedural context and factual background of the criminal incident. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7)
2. adversarial process and prosecution burden of proof through witness testimonies. (Para 8 , 9 , 10 , 12)
3. requirement of corroboration in eye-witness testimony to establish individual guilt. (Para 11 , 13 , 14 , 15 , 16 , 17 , 18)
4. individual criminal liability requires specific proven overt acts; uncorroborated evidence leads to acquittal. (Para 19 , 20 , 21)
5. reformative approach to sentencing through probation for first-time offenders of advanced age. (Para 22 , 23 , 24 , 25 , 26)

S.S. Mishra, J. Although four appellants have filed the present appeal jointly, but during pendency of the appeal, the appellant no.3- Thakurdas Mohanta expired. Therefore, the present Criminal Appeal qua the appellant no.3- Thakurdas Mohanta stood abated by the order of this Court dated 04.09.2025 in the absence of any application U/s.394 Cr.P.C. by the L.Rs. or next friend of the deceased appellant. Hence, the present Criminal Appeal is confined to appellant Nos.1, 2 and 4.

2. In this appeal, the judgment and order dated 03.05.1999 passed by the learned Additional Sessions Judge, Rairangpur, District-Mayurbhanj in S.T. Case No.13/119 of 1998 & (S.T. Case No.8/53/99) (arising out of G.R. Case No.214 of 1997, Bahalda P.S. Case No.35 of 1997) is under challenge. Vide the said judgment and order, the appellants were convicted for the offences punishable under Sections 148/323 of the IPC and they were sentenced to undergo R.I. for three months each.

3. When the matter was heard, repeatedly nobody has appeared for the appellants. Therefore, Mrs. Kumudinee Panda, Advocate, who was present in the Court, has been appointed as Amicus Curie to assist the Court in this case.

4. Heard Mrs. Kumudinee Panda, learned Amicus Curiae appearing for the appellants and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the Respondent-State.

5. The criminal law was set in motion against the appellants on registration of Bahalda P.S. Case No.35 of 1997 on 09.06.1997 for the alleged commission of the offences punishable under Sections 147/148/447/323/149 of the IPC. The said F.I.R. was exhibited as Ext.1/3.

6. The prosecution story in terse and brief is that P.W.3, the informant while in his land on 09.06.1997 at about 7 a.m., the occurrence appears to have occurred. He found the accused persons were forcibly cultivating his land. Seeing this, he himself, Pitambar and his brother Sumanta went to the spot and protested the action of the accused persons. When the accused persons did not listen, he unyoked all the ploughs of the accused persons. Thereafter, accused-appellant No.4, Paresh Mahanta gave a cycle chain blow on his head. He sustained bleeding injury. Accused-appellant No.3, Thakurdas Mahanta (deceased), chased to assault on his father (P.W.3) and brother (P.W.2). When Umesh Mahanta attempted to assault his father and brother by means of spade, they tussled with each other by holding the spade. Accused-appellant No.3, Thakurdas threw a bomb towards him and others. P.W.2 caught hold of the bomb before the same blasted and the bomb was handed over to the ward member of the village.

7. The F.I.R. (Ext.1/3) was registered and the investigation was carried out. After completion of investigation, charge sheet was filed against the accused persons.

8. The defence although took the plea of complete denial, but in their statement under Section 313 of the Cr. P.C., they stated that the prosecution witnesses have assaulted them. By the assault, one Umesh Mahanta died at the spot and for that, they filed a case against the prosecution party members. On the stance of complete denial of their involvement, they were put to trial after framing of the charge. The O.I.C. of Bahalda Police Station registered the case against them for the offences punishable under Sections 302/307/148/149 of the IPC. Therefore, the accused-appellants stated to have been

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2025 Supreme(Online)(Ori) 6689

ORISSA HIGH COURTSibo Sankar Mishra, JSarbeswar Mahanta – AppellantVersusState of Orissa – RespondentCRA No. 144 of 1999

Courts may grant probation to aged, first-time offenders in long-pending criminal matters, as the penological objective of criminal law is to reform the individual rather than solely inflict punishment, especially where evidence of specific overt acts is lacking against some accused.

Cases Referred (1)

ORISSA HIGH COURT
Sibo Sankar Mishra, J
Sarbeswar Mahanta – Appellant
Versus
State of Orissa – Respondent
CRA No. 144 of 1999