Sadashiva Bal @ Neula vs State Of Odisha

S.S. Mishra, J.

The present Criminal Appeal is arising out of the judgment and the order of sentence dated 10.12.2025 passed by the learned Ad-hoc Additional Sessions Judge, FTSC, Kendrapara in G.R. Case No.71 of 2024, arising out of Nikirai P.S. Case No.232 of 2024. By the impugned judgment, the learned trial court acquitted the appellant of the charges under Sections 78, 79, 296, 351(2), 351(3) of the Bharatiya Nyaya Sanhita, 2023 and Section 12 of the POCSO Act, but convicted him for the lesser offences under Sections 126(2) and 131 of the BNS and sentenced him to undergo Simple Imprisonment for ten days with fine of Rs.1,000/- in default of which S.I. for two days more for the offence under Section 126(2) and Rigorous Imprisonment for two months with fine of Rs.500/- in default of which R.I. for five days more for the offence under Section 131, with both sentences directed to run concurrently.

Heard Mr. S.C. Pradhan, learned counsel for the appellant and Mr. R.B. Dash, learned counsel for the State.

The prosecution case, in brief, is that the victim, a student of Class-X, used to attend school and morning tuition in her village. It was alleged that the appellant, who belonged to the same village, would regularly loiter near the school route, pass comments, make objectionable gestures towards her, and create fear in her mind while she was proceeding to and returning from school. It was further alleged in the FIR that on one occasion he knocked at the window of her house during the night and later threatened her father when confronted regarding his conduct.

On the basis of the written report lodged by the victim's father on 23.08.2024, Nikirai P.S. Case No.232 of 2024 was registered for offences under Sections 78, 79, 296, 351(2), 351(3) of the BNS and Section 12 of the POCSO Act. During investigation, the Investigating Officer recorded the statements of witnesses, prepared the spot map, seized the school records establishing the victim's date of birth as 15.07.2009, recorded her statement under Section 183 BNSS, and eventually submitted charge-sheet against the appellant.

The prosecution examined eight witnesses, including the victim as P.W.7, her parents and grandmother, the Headmaster and Assistant Teachers who proved the school records, and the Investigating Officer. Several documents including the FIR, school admission register, School Leaving Certificate, victim's statement under Section 183 BNSS, and the spot map prepared by the I.O. were exhibited.

Upon appreciation of evidence, the learned trial Court found that substantial improvements had been made by the victim during her deposition regarding allegations of love proposals, eye gestures, and certain threats, which were absent from her previous statements. Similarly, allegations regarding the alleged night incident and threats with a knife were found unsupported by reliable evidence. Consequently, the appellant was acquitted of all offences under the POCSO Act and the major provisions of the BNS. Nevertheless, the trial court held that the consistent evidence regarding the appellant's regular loitering near the victim's school route and interception of her movement established the ingredients of wrongful restraint and assault by gesture. Invoking Section 245 BNSS, corresponding to Section 222 CrPC, the learned trial Court convicted the appellant for the lesser offences under Sections 126(2) and 131 BNS. The relevant part of the aforesaid judgment is reproduced herein for ready reference:-

I have considered the submissions advanced by learned counsel for the appellant and learned Additional Standing Counsel for the State and have carefully examined the judgment of the learned trial Court and the materials available on record.

Upon hearing learned counsel for the parties and carefully examining the evidence discussed by the trial Court, this Court finds no reason to disturb the findings regarding conviction under Sections 126(2) and 131 BNS. The learned trial Court has undertaken a detailed appreciation of the testimony of the victim and the other witnesses. It correctly noticed that several allegations introduced during the trial, including the alleged proposal of love, blinking of eyes, threats to kill, and the incident of knocking at the window, constituted material improvements over the previous statements recorded during investigation. The Investigating Officer herself admitted that such facts had not been stated earlier by the victim. Consequently, the trial Court rightly discarded those portions of the prosecution case and acquitted the appellant of the offences under Sections 78, 79, 296, 351(2), 351(3) BNS and Section 12 of the POCSO Act.

At the same time, the evidence consistently established that the appellant used to remain near the victim's school route during the morning hours, intercept her movement, and thereby create apprehension and harassment. The victim's evidence in that regard found support from the testimony of her parents and grandmother, who deposed that she had consistently complained about such conduct. The learned trial Court was therefore justified in invoking Section 245 BNSS to convict the appellant for the proved lesser offences under Sections 126(2) and 131 BNS. This Court finds the reasoning to be legally sound and supported by the evidence on record. The question that remains is regarding the sentence.

The appellant was about twenty-five years of age, has no previous criminal antecedents, and is admittedly a first offender. Apt would be to place reliance upon the Judgement of the Hon’ble Supreme Court in Chellammal and Another v. State represented by the Inspector of Police^{11.2025 INSC 540} wherein the Apex Court 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 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:

In the present case, the custodial sentence awarded is itself only Simple Imprisonment for ten days and Rigorous Imprisonment for two months, both directed to run concurrently. Sending a first-time offender to prison for such a short period, after he has already undergone the rigours of criminal prosecution and trial, would not substantially advance the cause of justice. Regard being had to the aforementioned proposition of law, the facts of the present case, 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. 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.

In light of these factors, while maintaining the conviction, it is appropriate to grant the appellant the benefit of probation under the P.O. Act. This Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of six 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 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 six months.

Accordingly, the Criminal Appeal is partly allowed.