The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.315 of 1995 (In the matter of an application under Section 374 and 382 of the Criminal Procedure Code, 1973) Ajay Kumar Singh ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. D.P. Dhal, Senior Advocate For the Respondent : Mr. Rajbhusan Dash , ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 05.08.2025 :: Date of Judgment: 19.08.2025 S.S. Mishra, J. The present Criminal Appeal, is filed by the appellant under Sections 374 and 382 of the Cr. P.C., assailing the judgment and order dated 10.11.1995 passed by the learned District and Sessions Judge, Phulbani in S.T. Case No. 32 of 1995, whereby the learned trial Court has convicted the accused-appellant U/s.3(1)(x) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989(Herein after referred to as “Act of 1989” for brevity) sentencing him to undergo imprisonment for six months and pay a fine of Rs. 300/- in default to undergo further imprisonment of one month.
Legal Reasoning
Facts of the Case 2. The prosecution case, briefly stated, is that the accused-appellant Ajay Singh, an Advocate of Phulbani Bar belonging to the
Legal Reasoning
“KSHATRIYA” caste, was in litigating terms with the informant, Smt. Puspanjali Behera, who belonged to the “PANA” caste, in a court case. On the morning of 06.02.1994 at around 7:30 A.M., while the informant was proceeding to the Circuit House for certain official work, the accused with some of his associates arrived near Post Office Chhak of Phulbani Town and subjected her to harassment on the public road. The informant raised an alarm, attracting many persons to the spot, whereupon the accused-appellant fled. However, while leaving, he threatened the informant that if her witnesses deposed against him in court, he would take her life and drive her out of her native place. Feeling humiliated by these acts, the informant instructed one Biswanath Behera to scribe a report, which was lodged at Phulbani P.S. Upon completion of investigation, only the accused-appellant was charge- Page 2 of 11 sheeted under Sections 3(1)(x) and 3(1)(xv) of the Act of 1989 and Section 506 of the IPC. On his stance of denial, he was put to trial. Analysis of evidence by the Trial Court 3. To substantiate the case against the accused-appellant, six witnesses were examined. P.W.1 was the scribe of the F.I.R., P.W.2 is the mother of the informant, P.W.3 was the S.D.P.O., Baliguda, P.W.4 was a passer-by at the place of occurrence, and P.Ws.5 and 6 were the investigating officers. It is pertinent to mention that the informant expired during the course of the trial. 4. The learned trial Court analysed the evidence on record in detail and returned the following findings:- “In view of the evidence of earlier litigations subjudiced against accused Ajaya Singh initiated by the informant, it cannot be assumed that accused Ajaya Singh came to Pushannjali Behera near the post office chhak, while she was on her way to circuit house, as friend or as a well wisher of Pushanjali Behera or that there was an occurrence in between Pushpanjali Behera and accused Ajaya Singh at the post office chhak can not be disbelieved. 3. On the facts this case, the evidence of P.W.2 that Ajaya Singh came in a scooter accompanied by two of his associates and abused Pushpanjali Pehera can believed P.W.2 has no one to grind against the accused has proved the presence of the deceased- informant and P.W.2 in the circuit house, in the morning hour of the day of occurrence and further proved that they complained before Smt. Danti Nanda about the incidence supposed on their Page 3 of 11 way to circuit house is a feature of the evidence of P.W.2 and has also reflected the conduct of decesed-informant and P.W.2 in the total appreciaion of the case. There some truthfulness in the evidence of P.W.2 since a lady who have taken for the harassment inflicted on her, on a public road and has lodged F.I.R. against the accused presumably felt insulted and humiliated.”(Unclear) Judgement of Conviction by the Trial Court 5. By appreciating and analyzing the evidence brought on record by the prosecution and taking into consideration the defence plea eventually the learned trial Court recorded the guilt of the appellant by concluding as under: “In the net, accused Ajay Singh is found guilty u/s. 3(1)(x) of Scheduled castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and is convicted thereunder. But, however, accused is found not guilty of offence u/s. 506 I.P.C. and Section 3(1)(xv) of Scheduled Caste and Scheduled Tribes( Prevention of Atrocities) Act, 1989 and is acquitted there of by virtue of operation of Section 235(1) Cr.P.C.” (Unclear) 6. Aggrieved by the aforementioned judgment of conviction and order of sentence passed by the learned District and Sessions Judge, Phulbani, the present Appeal has been preferred by the appellant. 7. Heard Mr. D.P. Dhal, learned Senior Counsel appearing for the appellant and Mr. Rajbhusan Dash, learned Additional Standing Counsel for the State. Page 4 of 11 Submissions on behalf of the Appellant 8. Mr. Dhal, learned Senior Counsel for the appellant, while addressing the Court on the merits of the matter, invited attention to a series of factors which, according to him, demolish the prosecution case and entitle the accused-appellant to an acquittal. The first and foremost point stressed was that the informant herself had passed away during the pendency of the trial and, consequently, her testimony could not be recorded. In the absence of her evidence, the substratum of the prosecution’s case is considerably weakened, as the direct account of the alleged occurrence from the principal witness is unavailable. Learned Senior Counsel submitted that this circumstance alone creates a substantial gap in the chain of evidence and, therefore, operates to the benefit of the accused-appellant by raising a reasonable doubt regarding the veracity of the allegations. 9. Proceeding further, learned Senior Counsel contended that the trial court had primarily placed reliance upon the deposition of P.W.2, the mother of the informant. However, on a plain reading of her testimony, it becomes evident that she has not stated a single word to the effect that Page 5 of 11 the accused-appellant had abused her daughter in the name of caste or had uttered any caste-related insult. In other words, there is a complete absence of any direct assertion from P.W.2 connecting the accused- appellant with the commission of an offence under the relevant provisions that is Section 3(1)(x) of the Act of 1989. For the convenience, the exact deposition of P.W.2 is reproduced herein: 1. Pushpanjali is my daughter. Pushpanjali died a year back. About one and half years back is the occurrence date. On the occurrence day at 7 AM myself and my daughter Pushpanjali Behera were going to circuit house to meet the Commissioner for Women Smt. Shanti Nanda. On the main road at the frontage of General Post Office the accused, Ajaya Singh came in a scooter two of his associates. Accused abused accompanied by Pushpanjali and threatened Pushpanjali that he, whosoever will give evidence against him he, will set fire to him. I and Pushpanjali felt humiliated on the abuse of accused in that road. So threatening, the accused left the place with his associates. 2. Myself and Pushpanjali belong to "PANA " caste the accused belong to KSHETRIYA caste, Thereafter we went to the Circuit House to meet the Commissioner for Women Smt. Shanti Nanda, and appraised her the incidence of 7.00 Α.Μ. 3. At the Circuit House On the instruction Pushpanjali Behera, P.W. 1 scribed Ext. 1. On being read over in by P.W. 1, Pushpanjali Behera put her signature Ext. 1/1 is the signature of Pushpanjali Behera. Already marked Ext. 1 is that scribed report.” Learned Senior Counsel further emphasised that the finding of the trial court regarding the caste status of the informant rests solely upon oral testimony. There is no documentary evidence, such as a caste Page 6 of 11 certificate or any other legally acceptable proof, to establish beyond doubt that the informant belonged to a Scheduled Caste. In the absence of such proof, the essential ingredient for attracting the provisions of the Act of 1989 remains unsubstantiated. 10. It was further submitted that P.W.4, who was projected by the prosecution as an eye-witness to the incident and who, as a passerby, was allegedly present at the place of occurrence, has completely turned hostile during trial. Similarly, P.W.1, the scribe of the F.I.R., has also turned hostile. Learned Senior Counsel submitted that the hostility of these witnesses, coupled with the non-examination of the informant and the absence of credible proof of her caste status, renders the prosecution case highly doubtful and unsafe to sustain a conviction. Precedent Analysis 11. On the entire conspectus of the case it will be apt to place reliance upon the judgement of the Hon’ble Madhya Pradesh High Court in Page 7 of 11 Prahalad and another v. The State of M.P.1, wherein the court by placing reliance on one of its earlier judgement held thus: “6. In Pillu Alias Pyarelal versus State of Madhya Pradesh ILR 2012 MP 1309, it is held that if prosecution fails to prove the caste of victim by any cogent and reliable document issued by the competent authority then mere oral deposition of witness would not deem to be proved.” Further, it would also be apt to rely on the judgement of the same Hon’ble Court in Chalaniya Dheemar v. State of M.P.2 , wherein it was held thus: “10. On a close scrutiny of the evidence of aforesaid witnesses, it is clearly established that accused caught the hand of complainant Hiriya (PW-1) in the Nala with a view to outrage her modesty while she was going to fetch greenery. However, on scanning the evidence of all the prosecution witnesses, I find that there is absolutely no legal evidence to establish that complainant Hiriya belonged to scheduled caste or scheduled tribe. No certificate of any competent authority to that effect was produced or proved before the Court. Neither Hiriya (PW-1) nor any other witness including head constable Devideen (PW-4) deposed in the Court that she belonged to scheduled caste. It is true that in the first information report Ex.P/1 and Ex.P/2 the name of complainant has been mentioned as Hiriya Ahirwar, but merely from that it cannot be held that she belonged to scheduled caste in the absence of legal evidence in the Court. First Information Report cannot be treated as a part of substantive evidence. It can be used only for corroboration or contradiction of its maker. It is also important to note that police registered the offence under section 354 of Indian 1 Criminal Appeal No. 50 of 2004 2 I.L.R.(2012)M.P. 189 Page 8 of 11 Penal Code only and not under the provisions of SC & ST (Prevention of Atrocities) Act. Trial Court recorded the finding that it was established that accused outraged modesty of the complainant who belonged to scheduled caste but it appears to have been based on no legal and substantive evidence.” A careful reading of both the aforesaid judgments reveals that the principle laid down is consistent and unequivocal, in prosecutions under the Act of 1989, the caste status of the victim is an essential ingredient of all the offence under the Act and must be proved by cogent and reliable evidence, preferably through a certificate issued by the competent authority. Mere oral assertions, unaccompanied by any such documentary proof, cannot be treated as sufficient to establish this foundational fact. In both Prahalad (supra) and Chalaniya Dheemar(supra), the Hon’ble Madhya Pradesh High Court held that in the absence of such proof, the charge under the provisions of the Act cannot be sustained, even if other aspects of the prosecution case are otherwise proved. This legal position, when applied to the present case, clearly fortifies the defence contention that the prosecution has failed to discharge its burden of proving the caste status of the informant beyond reasonable doubt. Page 9 of 11 Observations 12. On an overall assessment of the materials available on record, this Court finds that the prosecution has failed to establish, through any cogent and reliable documentary evidence issued by a competent authority, that the informant belonged to a Scheduled Caste. The only evidence on this point is the oral assertion of P.W.2, which, in view of the settled legal position as laid down by the Hon’ble Madhya Pradesh High Court in Prahalad (supra) and Chalaniya Dheemar (supra), is wholly insufficient to prove this essential ingredient of the offence under Section 3(1)(x) of the Act of 1989. The situation is further compounded by the fact that the informant could not be examined owing to her death during the pendency of the trial, and two key witnesses, that is P.W.1, the scribe of the F.I.R., and P.W.4, the alleged eye-witness who turned hostile. In these circumstances, the prosecution case suffers from serious infirmities and lacks the degree of certainty required for sustaining a conviction under the provisions of the Act of 1989. Page 10 of 11 Conclusion 13. In the considered view of this Court, the learned trial Court erred in convicting the appellant under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the absence of legally admissible and substantive evidence to prove the caste status of the informant beyond reasonable doubt. The benefit of such doubt must necessarily enure to the accused. Accordingly, the judgment of conviction and the order of sentence dated 10.11.1995 passed by the learned District and Sessions Judge, Phulbani, are hereby set aside. The appellant, is acquitted of the charge under Section 3(1)(x) of the Act of 1989. Bail bonds, if any furnished, stands discharged. 14. Hence, the Criminal Appeal is allowed. The High Court of Orissa, Cuttack. Dated the 19th of August 2025/ Subhasis Mohanty (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 01-Sep-2025 10:17:34 Page 11 of 11