The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 273 of 1995 (In the matter of an application under Section 374 of Criminal Procedure Code) Padma Charan Bhoi ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Laxman Pradhan, Advocate For the Respondent : Ms. Sarita Moharana, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 12.08.2025 : Date of Judgment: 25.09.2025 S.S. Mishra, J. The present criminal appeal filed by the appellant under Section 374 of Cr.P.C. is directed against the judgment of conviction and order of sentence dated 20.09.1995 passed by the learned Sessions Judge, Phulbani in Sessions Trial No. 13 of 1995, whereby the learned trial Court has convicted the appellant under Section 323 of IPC read with Section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced him to undergo R.I. for two years and to pay a fine of Rs.2000/-, in default, to undergo further R.I. for three months under Section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. However, for the offence under Section 323 IPC, no such sentence has been awarded
Legal Reasoning
Heard Mr. Laxman Pradhan, learned counsel for the appellant and Ms. Sarita Moharana, learned counsel for the State. 3. The prosecution case, in nutshell, is that on 19.04.1994 at 12 noon while Jagannath Behera (informant-P.W.1) was returning to his house after purchasing tobacco snuff and passing in front of the house of the accused Padma Charan and Simadri Dehuri (co-accused, acquitted by the court below) had asked the informant as to why he is selling parched rice at Rs.1.15 instead of Rs.1.25. The informant replied that it is his own business and it is open to him at what price he will sell the parched rice. The informant and Simadri Dehuri had exchanged of words and at that point of time the appellant had supported the Simadri Dehuri. Page 2 of 16 Admittedly, Simadri and the informant belong to Scheduled Caste community and the appellant belongs to non-scheduled caste. When there was exchange of words, Simadri instructed the appellant to throw hot water admixed with sugar on the informant. As per the instruction of Simadri (co-accused) and exchange of hot and filthy words, the appellant had thrown hot water on the informant and by that the informant was injured and lodged the FIR. 4. On the basis of the aforesaid allegations, Tikabali P.S. Case No. 29 dated 18.04.1994 was registered for the alleged commission of offence punishable under Sections 294/324/34 of IPC read with Section 3(1) (x) of SC & ST (PoA) Act. After investigation, charge sheet against the appellants for the offences, as mentioned above, was filed. 5. The co-accused (Simadri Dehuri) was acquitted by the learned trial court. Hence, this appeal has been filed by the present appellant alone. Page 3 of 16 6. The prosecution, in order to prove its case, examined as many as six witnesses, whereas the defence took a stand of complete denial and claimed trial. 7. P.W.1, was the informant; P.W.2 was the sister-in-law of P.W.1; P.Ws. 3 and 4 were the occurrence witnesses; P.W.5 was the doctor and P.W.6 was the Investigating Officer of the present case. 8. The present appellant and one Simadri Dehury were put to trial on the charges under Section 326/506/34 of IPC read with Section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The trial court, by relying upon the evidence of P.W.1, the victim/informant, P.Ws.2, 3 and 4, the witnesses to the occurrence, has arrived at a finding that no case against the accused persons are made out under Section 506 of IPC. In that regard, the following findings were recorded by the learned trial court:- “8. It has been found mention in the evidence of P.W. 1 that accused Padmacharan prevailed upon P.W. 1 to pay 1.25 instead of 1.15 as a token of sale of parched rice to P.W. 1. This evidence contrary to the F.I.R. version of P.W. 1. In the F.I.R. not only there is omission of sale and purchase of parched rice by P.W. 1 from Padmacharan Bhoi, but there is Page 4 of 16 also omission that Padmacharan Bhoi entered into a dialect with P.W. 1 about the price of the parched rice. For an offence u/s. 506 I.P.C., the criminal intimidation ought to have been directed to make an individual to omit to do which he is legally entitled to do and the converse, not to do an act which he is entitled to do. This forbearance must come by application of force. From the evidence of P.Ws. 1 and 2 read with their prior statements this important requirement showing the complicity of either of the accused persons has not been made out. Accordingly, this Court is not inclined to hold that offence u/s. 506 I.P.C. has been brought home against either of the accused persons.” 9. The trial court has also recorded an acquittal in favour of the co- accused Simadri Dehury that “the swerved testimony of P.W.1 as regards the part played by Simadri Dehury in the scenario of the occurrence has qualitatively undermined the credibility of P.W.1, the benefit whereof will go to accused Simadri Dehury. The plea of Simadri Dehury that his niece once went away with the brother of P.W.1 for which P.W.1 has foisted this case against Simadri Dehury has no legs to stand upon, the said occurrence not being of recent origin. Accordingly, this Court is of the view that Simadri Dehury is to be extended with benefit of doubt for the offence u/s 3(1) (x) of Scheduled Castes and for the offence under Scheduled Tribes (Prevention of Atrocities) Act and for the offence under Section 326 IPC. This Court has already hold that both the accused persons cannot be saddled with the criminal liability within the scope of Section 506 IPC. In the net, Simadri Page 5 of 16 Dehury is found not guilty of the offence u/s 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 506 IPC or Section 326 IPC or 323 IPC and is acquitted there from”. On the contrary, the learned trial court following reasonings, have convicted the present appellant for offence under Section 323 of IPC read with Section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in paragraphs-9 and 10:- “9. According to P.W.1, he belonged to "PANA” caste, on the other hand, accused Padmacharan Bhoi belong to KULATA caste. The throw of hot-boiled fluid substance on to the person of P.W. 1 occasioned for any reason has not at all been surfaced. In the absence of any material to hold that there existed any reasonable cause for the throw of hot- boiled fluid substance to the person of P.W. 1, the physical act of throwing hot boiled liquid can be attributed to be a "voluntary act" of accused Panacharan Bhoi. The existence of the well is at a distance of 40 cubits from the frontage of the house of Padmacharan Bhoi where from P.W. 2 had rushed to the place of occurrence. The place of occurrence not being a private enclosed place, is a public place and the place of occurrence can be said to be within the public view. 10. P.W.2 himself has said that he felt insulted for the abuses. Feeling insulted is a mental faculty of an individual. Howsoever weak a man might be in his gate up, if he is victim of a masculine assault in e public place or within the public view, he is certain to feel insulted. There is no material on record to deny the otherwise of this humanly approach. It is beyond doubt that by throw of hot boiled liquid substance, accused Padmacharan Bhoi, alone, not Page 6 of 16 being a member of Scheduled Caste insulted P.W.1, a member of Scheduled Caste within the scope and purview of Section 3(1) (x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The swerved testimony of P.W.1 as regards the part played by Simadri Dehury in the scenario of the occurrence has qualitatively undermined the credibility of P.W.1, the benefit whereof will go to accused Simadri Dehury. The plea of Simadri Dehury that his niece once went away with the brother of P.W.1 for which P.W.1 has foisted this case against Simadri Dehury has no legs to stand upon, the said occurrence not being of recent origin. Accordingly, this Court is of the view that Simadri Dehury is to be extended with benefit of doubt for the offence u/s 3(1) (x) of Scheduled the offence under Scheduled Tribes Castes and (Prevention of Atrocities) Act and for the offence under Section 326 IPC. This Court has already hold that both the accused persons cannot be saddled with the criminal liability within the scope of Section 506 IPC. for In the net, Simadri Dehury is found not guilty of the offence u/s 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 506 IPC or Section 326 IPC or 323 IPC and is acquitted there from. Accused Padmacharan Bhoi is found guilty for the offence u/s 323 IPC (converted from the offence u/s 326 IPC) and is acquitted therefrom. Accused Padmacharan Bhoi is found guilty for the offence u/s 323 IPC read with section3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, but however, he is acquitted of the offence u/s 506 IPC.” 10. Aggrieved by the aforementioned findings recorded by the learned trial court leading to the conviction and sentence, the sole appellant has Page 7 of 16 filed the present appeal. The present appeal is revolving around the testimony of P.W.1, the victim/informant. P.W.1 in his testimony has stated that “Accused Padma demanded Rs.1.25. I told accused Padma to pay the balance price subsequently. At this accused Simadri told accused Padma “MAGIHA SALA DEHAKU CHINI SIRA PHINGIDE”. At this accused Padma Charana brought out the boiled water admixed with sugar from the post kept over the burning hearth and threw the fluid substance to me. That fluid substance comes in contact with my left cheek and thereby I sustained burnt injury on my left cheek surrounding the ear.” On the suggestion of the defence counsel, the said witness has stated that “It is not a fact that I had not stated to the police that Simadri told accused Padma “MAGIHA SALA DEHAKU CHINI SIRA PHINGIDE.” The evidence of the said witness stood corroborated with the evidence of P.W.2, who has stated that “I saw accused Padma Charan threw hot water on P.W.1 ………..(unclear) sustain injury in the left cheek and scapula region. P.W.1 fell to the surface”. Similarly, the eye witnesses P.Ws.3 and 4 bluntly denied that they have even seen the occurrence. On the cross examination by the Public Prosecutor, Page 8 of 16 suggestion was also put to them that accused Simadri told P.W.1 as to why he is selling parched rice in low rate and P.W.1 told Simadri that he is selling the rice and fixation of price is his discretion. It is also suggested that on instigation of Simadri Dehury, the present appellant has thrown the hot water. The Investigating Officer, i.e., P.W.6 in his testimony has stated that “Midabali is 12 K.Ms. away from Tikabali P.S. P.W.1 had not stated to me that Simadri told to him “MAGIHA SALA DEHA KU CHINI SIRA PHINGIDE”. It is not a fact that my investigation is perfunctory.” He has also stated that the accused persons were arrested on 10.04.1994 and the charge sheet was submitted on 25.07.1994 and at the time of incident he was posted as an A.S.I. of Police of Tikabali Police Station. P.W.5, who is the doctor examining P.W.1 on 09.04.1994, found one percent burnt of head neck, face of left siru extended from left head to left ear, face and shoulder. He has stated that the injury caused to P.W.1 is possible by hot liquid admixed with sugar. The injury stated to be simple in nature sustained by P.W.1. 11. By conjoint reading of the aforementioned evidence, it is apparent on record that it is the co-accused Simadri Dehury, who has indeed Page 9 of 16 abused the informant P.W.1. In the testimony of P.W.1 and the testimony of other witnesses including the suggestion made to the Investigating Officer of the case, it is clear that the present appellant has not abused the informant/victim. The only thing, which is attributed to the present appellant, is that at the instance of the co-accused Simadri Dehury he has put the hot water admixed with sugar on the P.W.1, as a result of which P.W.1 sustained simple injury, as per the deposition of the doctor (P.W.5). In the statement of the accused persons recorded under Section 313 Cr.P.C., the following question was framed which was put to the present appellant:- Q. It transpires from the evidence of P.W.1 that while P.W.1 was talking with you, accused Simadri Dehury told you “MAGIHA SALA KU CHINI SIRA PHINGIDE”, What have you go to say? Ans. False Similarly, when the statement of the co-accused Simadri Dehury was recorded under Section 313 Cr.P.C., a specific question was put to him, which reads as under:- Page 10 of 16 Q. It transpires from the evidence of P.W.1 that while P.W.1 was talking with Padmacharan Sahu (Present appellant) you told accused Padmacharan Sahu “MAGIHA SALA KU CHINI SIRA PHINGIDE”, What have you go to say? Ans. False 12. From the aforementioned, it is now clear that it is not the case of the prosecution that the present appellant has abused P.W.1, rather it is the co-accused, who has abused by insulting P.W.1 by taking his caste name. As such, the learned trial court has acquitted the co-accused Simadri Dehury by extending the benefit of doubt. 13. It is contended by learned counsel appearing for the appellant that P.W.6, the Investigating Officer was an A.S.I. of Police. Therefore, as per Rule-7 of the S.C. & S.T. (PoA) Rules, the investigation conducted by him is vitiated, as he was not an officer of the rank of Dy. Superintendent of Police. It is relevant to mention here that the incident had taken place on 09.04.1994 and the charge sheet was filed on 25.07.1994. Rule-7 of the S.C. & S.T. (PoA) Rules came into force on Page 11 of 16 31.03.1995. Therefore, the argument that the investigation is vitiated, as the Investigating Officer being an A.S.I. of Police could not have investigated the offence, holds no water and is liable to be rejected. 14. Regard being had to the aforementioned, I am of the considered view that the present appellant is entitled to the benefit of doubt, in so far as the offence under Section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned. Accordingly, he is acquitted of the said charge. However, the guilt of the appellant under Section 323 of IPC, as recorded by the learned trial court is concerned; I have no option rather to affirm the same, in view of the consistent evidence of the witnesses, particularly P.Ws.1, 2 and 5. P.W.1 has stated that it is the appellant Padma Charan Bhoi, who injured P.W.1 by throwing hot water admixed with sugar, which is also confirmed by P.W.2 and the doctor (P.W.5) has also found the injury in the body of P.W.1. 15. Regard being had to the corroborative and trustworthy evidence of P.Ws.1, 2 and 5, the prosecution could successfully prove the case Page 12 of 16 against the appellant for commission offence under Section 323 of IPC. Hence, conviction of the same is upheld. 16. At this stage, learned counsel appearing for the appellant submitted that the incident had taken place in the year 1994 and the present appeal is pending since 1995. At the time of incident, the appellant was forty years age and at present he is sixty five years old and much has changed in between and he has a clean antecedent and now leading a happy life with his family. Therefore, sentencing him to custody at the belated stage to serve out the remaining sentence awarded would be harsh. Therefore, it is submitted that in the fact scenario of the present case, due to long pendency of the criminal proceeding against the appellant, the appellant may be treated under the Probation of Offenders Act. 17. I have taken into consideration the entire conspectus of the case and the fact that the incident had taken place about two decades back and the appellant is a first time offender and at present he is well integrated in the society and the fact that the appellant was forty years age at the time of incident in the year 1994 and he has a clean antecedent, I am of Page 13 of 16 the considered view that the submission made by learned counsel for the appellant deserves merit. The appellant was convicted vide judgment and order dated 20.09.1995 and the appeal is pending since 1995. Much has changed in the life of the appellant in between and he has already settled in his life. The appellant has undergone the ordeal of prolonged trial and pendency of appeal for about two decades. 18. In the prevailing scenario, regard being had to the age of the appellant and his clean antecedents and the fact that the incident relates back to the year 1994, I am of the considered view that the appellant is entitled to the benefit of the Probation of Offenders Act read with Section 360 of Cr.P.C. The case of the appellant is also covered by the ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra1 and Dhani @ Dhaneswar Sahu vs. State of Orissa2. 19. In such view of the matter, the present Criminal Appeal in so far as the conviction for the offence under Section 3 (1) (x) of Scheduled 1 2012 (Supp-II) OLR 469 2 2007 (Supp.II) OLR 250 Page 14 of 16 Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, is turned down. However, the conviction under Section 323 IPC is upheld, as mentioned in the preceding paragraph. But instead of sentencing the appellant to suffer imprisonment for offence under Section 323 IPC, 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 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. The appellant is directed to appear before the learned trial court to furnish the bail bond, as mentioned above. However, for the offence under Section 323 IPC, Rs.1000/- (Rupees one thousand) is imposed on the appellant, in default, to undergo S.I. for a period of fifteen days. The fine amount so realized shall be paid to the victim/informant in accordance with the provision under Section 357 Cr.P.C. Page 15 of 16 20. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 25th September, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 26-Sep-2025 17:00:06 Page 16 of 16