The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.308 of 1999 (In the matter of an application under Sections 374(2) of the Criminal Procedure Code, 1973) Dhusa @ Dusasan Parua & another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Pratyush Ranjan Pattnaik, Advocate For the Respondent : Mr. Raj Bhusan Dash, Additional Standing Counsel CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 31.07.2025 : : Date of Judgment: 19.08.2025 S.S. Mishra, J. The present Criminal Appeal filed by the appellants under Section 374(2) of the Cr.P.C., is directed against the impugned judgment and order dated 22.11.1999 passed by the learned Special Judge-cum-Sessions Judge, Balangir in G.R. Case No.523 of 1997/T.R. No.9 of 1998, whereby the learned trial Court has found the accused- appellants guilty and convicted them for the offences punishable under Sections 323/294/355/34 of the IPC and sentenced them to undergo R.I. for three months each and to pay fine of Rs.500/- (Rupees five hundred), in default, to undergo further R.I. for one month for the offence under Section 323/34 of the IPC, they were directed to undergo R.I. for one month for the offence under Section 294/34 of the IPC and R.I. for six months and to pay fine of Rs.500/- (Rupees five hundred), in default to further undergo R.I. for two months for the offence under Sections 355/34 of the IPC and the sentences were directed to run concurrently. The accused-appellants being aggrieved and dissatisfied by the judgment of conviction and order of sentence of the learned Special Judge-cum-Sessions Judge, Balangir, have preferred the present Criminal Appeal. 2. The prosecution case, in nutshell, is that on 30.11.1997 at about 8 A.M., when the informant Mistri Nanda, a member of Scheduled Caste was returning from his land, on the way, in front of the rice mill of Dhubaleswar Parua, both the accused persons restrained and abused him in obscene language saying “SALA MAAGIHA, MADARCHOD Page 2 of 9 TURA BUAKE DAK” and also made caste aspersion addressing him as ‘Ganda’, the community to which he belongs. Further, the accused Dhusa threw him on the ground by pulling his hand. Accused Tapa dealt slaps, kicks and fist blows and also put human excreta in his mouth by a stick. Accused Tapa also assaulted on his head near the ear by a stone causing bleeding injury. After the occurrence, the informant fled away from the spot and described the incident to some persons of the village. It is further alleged that due to the previous dispute, the accused persons indulged in such offensive activities. Hence, the F.I.R. After the investigation, charge sheet was filed in the present case and the appellants were put to trial on the stance of denial. 3. In order to bring home the charges, the prosecution has examined seven witnesses. P.W.1 was the injured-informant. P.Ws.2, 3 and 5 were the post occurrence witnesses before whom P.W.1 described about the occurrence. P.W.4 was a witness, who has not supported the prosecution case. P.W.6 was the Investigating Officer and P.W.7 was the doctor of Tusra Government Hospital, who examined P.W.1 on police requisition. The defence examined one witness. Page 3 of 9 4. Both the appellants stood charged for the offences punishable under Sections 323/294/355/34 of the IPC read with Section 3(1)(x) of the S.C. & S.T. (PoA) Act. However, the learned trial Court acquitted the appellants of the offence under Section 3(1)(x) of the S.C. & S.T. (PoA) Act by observing as under: “Although there is evidence that P.W.1 is a member of schedule caste and the accused persons are general caste men, the offences u/s 3(1)(x) of the S.C. & S.T. (Prevention of Atrocities) Act cannot be said to have been established as there is no evidence that the insult and intimidation meted out towards P.W.1 was within public view. Besides there is infraction of the mandatory provision of Rule 7 of the S.C. & S.T. (P.A.) Rules, 1995 which provides that investigation into an offence under the S.C. & S.T. (P.A.) Act has to be done by an officer not below the rank of a Deputy Superintendent of Police and such officer is to be specifically appointed by the State Government. Admittedly the investigation into the offence under the Act was done by Officer-in-Charge, Tusra who is a Sub-Inspector of Police and not a Dy. Superintendent of Police. In the case of Ramalinga Reddy-vrs.- State of Andhra Pradesh reported in 199(2) Crimes 343, it has been held that investigation of the offence being carried out by S.I. of Police, in contravention of Rule 7 of the Rules, vitiates the trial for the offence. Therefore, the accused persons cannot be held guilty for the offence under section 3(1)(x) of the S.C. & S.T. (P.A.) Act.” 5. The findings recorded by the learned trial Court as mentioned above, needs to be agreed upon, as it is apparent from the record that the Page 4 of 9 mandatory provisions contained in Rule-7 of the Rules, 1995 which came into force on 31.03.1995 has not been admittedly complied with. Therefore, this part of the judgment is affirmed. 6. Perusal of the evidence of P.Ws. 1, 2, 3 and 5 reveals that all of them in unison have deposed that on the fateful day at about 8 A.M., the accused persons restrained P.W.1, the victim on the way and abused him in filthy language also made caste aspersion addressing him as ‘Ganda’. Appellant no.1 threw him on the ground while appellant no.2 assaulted him. It has also come on record through their evidence that P.W.1 was beaten up and sustained injuries on his right ear and there was stain of human excreta around his mouth. P.W.1 in his statement has disclosed that he was assaulted by both the appellants whereas the appellant no.2 forcibly put human excreta in his mouth by means of a stick. The said evidence stood corroborated with the evidence of the other witnesses. The defence although attempted to question the trustworthiness of the version of those witnesses, but the learned trial Court has rightly turned down the defence version. Page 5 of 9 7. The learned trial Court, while dealing with their evidence, has arrived at the following conclusion: improbable. P.W.1 has stated “The evidence of P.Ws. 2, 3 and 5 to the effect that they saw stains of human excreta on the face of P.W.1 when he disclosed the incident before them is also assaulted to be in his cross- examination that his pada is at a distance of about a mile from the place of occurrence. Placing reliance on such evidence of P.W.1 it is argued that it is improbable on the part of a person to walk a mile without washing off human excreta from his face. Learned counsel for the defence relies on the decision of the Supreme Court in the case of Vidya Singh- vrs.- State of Madhya Pradesh, reported in A.I.R. 1971 SC 1857 wherein it has been observed that in assessing the value to be attached to the evidence, the Courts have to rely more on human probabilities than on the assertions of the witnesses. There is no dispute over the aforesaid preposition. In the aforesaid case the Hon’ble Apex Court disbelieved the evidence of P.Ws. with regard to the manner of infliction of injuries by the appellant inasmuch as the evidence was inherently improbable. It is only where the evidence of witnesses sounds inherently improbable that the Court is not to rely on the same though the witnesses consistently speak such improbable fact. When human excreta was forcibly put in the mouth of a person, there is every possibility of same stains of the excreta being left on the face around the mouth. Making someone forcibly to eat human excreta is an act of dishonor and insult of gravest nature. A victim subjected to such dishonor is not unlikely to carry the stains for a mile to show the same to others and describe his woes. There is nothing inherently improbable in such type of conduct of P.W.1.” Page 6 of 9 8. Heard Mr. Pratyush Ranjan Pattnaik, learned counsel appearing for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing Counsel appearing for the Respondent-State. 9. With the help of both the learned counsels appearing for the parties and after going through the evidence on record very meticulously only to arrive at a conclusion that the learned trial Court indeed by well appreciating the evidence on record, has arrived at the findings as reproduced above. 10. I have no option rather to agree with the guilt of the appellants recorded by the learned trial Court. Therefore, in the fact scenario of the present case and on the basis of the evidence on record, the impugned judgment dated 22.11.1999 passed by the learned Special Judge-cum- Sessions Judge, Balangir in G.R. Case No.523 of 1997/T.R. No.9 of 1998 is affirmed in so far as the recording of guilt of the appellants regarding the commission of offence under Sections 323/294/355/34 of the IPC. 11. At this stage, Mr. Pattnaik, learned counsel for the appellants submits that the incident is of the year 1997. The appellants at that point Page 7 of 9 of time were in their 20s. The present appeal is pending since 1999. Hence, at present, the appellant no.1 will be about 48 years old and appellant no.2 will be about 51 years old. Since much time has lapsed in between and the appellants are well settled in the society, they are entitled to the benefit of Probation of Offenders Act. Accordingly, he prays that the appellants may be treated under the Probation of Offenders Act. 12. It is found from the record that the appellants were arrested on 30.11.1997 and were granted bail by the trial Court on 01.12.1997. After passing of the impugned judgment on 22.11.1999, they were taken into custody and this Court granted bail to the appellants on 22.12.1999. Therefore, both the appellants have already undergone imprisonment for about one month each. 13. Taking into consideration the period both the appellants have already undergone and pendency of the Criminal Appeal for more than two decades and age of the appellants, I am of the view that the maximum sentence awarded by the learned trial Court for imprisonment of R.I. for six months is liable to be modified to that of the sentence the Page 8 of 9 appellants have already undergone. However, the appellants are liable to pay fine of Rs.10,000/- (Rupees ten thousand) each, in default of which, they are liable to undergo R.I. for one month each. The fine amount to be deposited shall be disbursed to the P.W.1, the victim as per the provisions of Section 357 Cr. P.C.
Decision
14. The Criminal Appeal is accordingly disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 19th August, 2025/Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 20-Aug-2025 18:18:01 Page 9 of 9