The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 259 of 1999 (In the matter of an application under Section 374(2) of Criminal Procedure Code) Sunil Patra @ Sunil Bihari Patra and others …… Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Devashis Panda, Advocate For the Respondent : Mr. A.K. Apat, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 18.11.2025 : Date of Judgment: 27.11.2025 S.S. Mishra, J. The appellants have preferred the present appeal assailing the judgment and order dated 04.10.1999 passed by the learned Special Judge, Balasore in Special Case No. 29 of 1996. By the said judgment, the learned trial Court convicted the appellants for the offences punishable under Sections 448/353/506/34 of the Indian Penal Code, as well as under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act read with Section 34 of the IPC. Consequent thereto, the appellants were sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.100/-, and in default thereof, to undergo further rigorous imprisonment for fifteen days for the offence under Section 3(1)(x) of the SC/ST (PoA) Act read with Section 34 IPC. They were further sentenced to rigorous imprisonment for one month on each count for the offences under Sections 448/34, 353/34 and 506/34 of the IPC. The learned trial Court extended to them the benefit of set-off, further directing that all the substantive sentences shall run concurrently. 2.
Legal Reasoning
Heard Mr. Devashis Panda, learned Counsel for the appellant and Mr. A.K. Apat, learned Additional Government Advocate for the State. 3. Pursuant to the order dated 29.07.2025, learned counsel for the State has produced the written instruction received from the I.I.C., Bhograi P.S. dated 17.08.2025, which indicates that the appellant No.l- Sunil Patra @ Sunil Bihari Patra has expired. Hence, the appeal qua the appellant Nos. l stood abated (vide order dated 19.08.2025) in absence of any application under Section 394 of Cr.P.C. by their legal heirs or next friends. In so far as the appellant Nos.2 and 3 are concerned, they are alive. Hence, consideration of the present appeal is only confined to appellant nos.2 and 3 alone. Page 2 of 16 4. According to the prosecution story, on 02.07.1994, while the informant Maguni Sethi (P.W.4) was on duty at the Kamarda Police Out- Post along with other APR and police constables, at about 4:00 p.m., the accused persons allegedly entered the out-post. At that moment, accused Prakash Dey rushed towards P.W.4 and warned him that if he did not extend support to the Communist Party, an Assembly question would be raised against him through Dipti Krushna Panda. He thereafter abused both P.W.4 and the Officer-in-Charge in filthy language and threatened to demolish the police out-post and kill them. During this incident, accused Diptiman attempted to forcibly take away the station diary register lying on the table, but P.W.4 managed to snatch it back. It is further alleged that accused Sunil instigated the others to tie P.W.4 with a rope, sever one of his hands, and tear off his uniform. When P.W.4 tried to step out, accused Diptiman Acharya obstructed him. The prosecution further asserts that the accused persons abused the informant by referring to his caste, he being a member of the Scheduled Caste with the intention to humiliate him in a place within public view. Hearing the alarm raised by P.W.4, the APR constables rushed inside to rescue him, upon which the accused persons fled from the spot. Page 3 of 16 5. P.W.4 subsequently reported the incident at Bhograi Police Station. The case was registered, witnesses were examined, and upon completion of investigation, charge-sheet was submitted against the accused persons for the alleged offences. On denial of the charges and their claim to be tried, the accused persons were accordingly put to trial. On the charges for the offences under Sections 488/363/506/34 of the IPC and Section 3(1)(x) of the S.C. & S.T. (PoA) Act. 6. To substantiate its case, the prosecution examined eight witnesses. P.W.1, Bharat Chandra Sethi, the then Havildar of Kamarda Out-Post, is an occurrence witness. P.W.2, Bijay Dutta, is a pre-occurrence witness who also witnessed part of the incident. P.W.3, Bansidhar Bhuyan, was declared hostile by the prosecution. P.W.4, the victim and informant Maguni Sethi, have narrated and proved the entire occurrence. P.W.5, Ananta Kumar Parida, an APR Constable, was an eye-witness to the incident. P.W.6, Santosh Kumar Das, the then Officer-in-Charge of Bhograi Police Station, received the FIR, registered the case, and conducted part of the investigation. P.W.7, Mayadhar Sethi, another Officer-in-Charge of Bhograi Police Station, took over the investigation from P.W.6 and later submitted the charge-sheet. P.W.8 was also one of the Investigating Officers connected with the case. Page 4 of 16 7. The learned trial court by largely relying upon the testimonies of P.W.4 (Injured-victim), P.W.5 (eye-witness), and the I.O. (P.W.7), who submitted the charge-sheet, convicted the accused-appellants holding as under: “12. On a careful scrutiny of the evidence of the abovementioned witnesses it is clear that P.W.4 is a member of scheduled caste and the accused persons are not members of scheduled caste or scheduled tribe. The evidence as discussed above also proves that the accused persons, in furtherance of their common intention trespassed into Kamarda police out-post, intentionally insulted the constable (P.W.4) by abusing him uttering most filthy language and also implicating his caste (Dhoba- washerman) in the public view inside the police out-post, prevented P.W.4 from due discharge of his duties as a public servant by snatching away the station diary and abusing him. They also threatened his to assault him and tie him while he was discharging his lawful duties inside Kamarda police out-post and thus I find that the prosecution has well proved its case against the accused persons. In the result, all the accused persons are found guilty of the charge under sections 448, 353, 506 read with 34 of IPC and also under section 3(1)(x) of the Scheduled Castes & Scheduled Tribe (Prevention of Atrocities)Act read with 34 of IPC and convicted thereunder.” 8. Aggrieved by the aforementioned judgment of conviction and the order of sentence, the accused-appellants have filed the present appeal. Page 5 of 16 9. The learned counsel for the appellants, Mr. Panda, submitted that the prosecution evidence suffers from significant and glaring contradictions, which the learned trial court failed to appreciate. According to him, a proper analysis of these inconsistencies would inevitably entitle the appellants to the benefit of doubt. In support of his contention, he has taken this Court through the testimonies of the key prosecution witnesses. To begin with, he referred to the evidence of P.W.1, Bharat Chandra Sethi, who was the Havildar posted at Kamarda Out-Post at the relevant time. Drawing the Court's attention to P.W.1's deposition, he submitted that the witness has not supported the prosecution case regarding any caste-based abuse or assault by the accused persons. P.W.1 stated as follows: “1. On 2.7.94 I was attached to Kámarda police outpost under Bhograi P.S. as a Havildar of police. I know constable 472 Maguni Sethi. Our barrack adjoins to that police outpost. On that date by 4 P.M. I was present there. By then accused Sunil Patra, Diptiman Acharya and Prakash Dey came to the police outpost. Accused Diptiman picked up some quarrel with constable Maguni Sethi. Accused Diptiman abused constable Sri Sethi by saying SALA ETC. Accused Prakash Dey abused us. Page 6 of 16 2. Constable Sethi is 'Dhoba' by caste. I do not know the caste of other accused persons.” Relying on this testimony, Mr. Panda submitted that P.W.1 has nowhere stated that the accused persons hurled any caste-related slurs with the intention of humiliating the informant on the basis of his caste. The testimony, therefore, does not support the essential ingredients of the offence under the SC/ST (PoA) Act. He then referred to the evidence of the victim and informant, P.W.4, Maguni Sethi, who, according to the prosecution, is the only witness claiming direct caste-based abuse. P.W.4 stated that the accused persons allegedly assaulted and demeaned him by referring to his caste. He deposed as follows: “1. On 2.7.94 I was attached to Kamarda out-post under the local limits of Bhograi P.S. On that date by 4 P.M. Sunil Patra, Prakash Dey, Diptimayee Acharya came to the O.P. They told that they are members of communist party and whether I would be known to them. Saying so, accused Prakash abused me as SALA MATRUCHOD DHOBA and they also abused us. They entered inside the outpost and obstructed my path. They gave me threatening that they would assaulted me and would remove my uniform and that they would tie me. 2. Some APR constables were then present in the outpost. They also told us 'TO THANA BABU GANDIRE KETE TELA DEICHHE' (that they had given oil in the anus of the O.I.C. of the Page 7 of 16 police station). Accused Diptimayee Acharya forcibly took away the station diary of the outpost.” He further stated about the caste status of the parties: “4. I am Dhoba (washerman) by caste as such I am scheduled caste. The accused persons are Khandayats and Brahmin. So, they are non-scheduled caste and non-scheduled tribe person.” However, in his cross-examination, P.W.4 contradicted himself by stating: “I cannot exactly say the caste of the accused persons.” Mr. Panda submitted that this contradiction strikes at the root of the prosecution case under the SC/ST (PoA) Act, as the victim himself expresses uncertainty regarding the caste of the accused persons, an essential foundational fact for attracting the penal provisions. The counsel next took this Court to the testimony of P.W.5, Ananta Kumar Parida, an APR Constable, who claimed to be present at the out- post during the alleged incident. His evidence is reproduced as follows: “On that date by 4 p.m. we some APR constables were taking rest in a room inside that outpost campus. We found that accused Prakash Dey, Deptimayee Acharya and Sunill Patra had altercation with constable P.W.4 and in the main room of the outpost. There was a shout. I heard accused Prakash telling P.W.4 SALA MAGIHA DHOBA! I found accused Diptimayee snatched the station diary from the table; but while taking away that P.W.4 (constable) rescued that book. Accused Sunil Patra gave threatenings to kill constable (P.W.4). Accused Prakash further Page 8 of 16 abused the police officer. When P.W.4 asked for our help, we rushed to the place. Seeing us and others the accused persons went away.” However, Mr. Panda pointed out that the cross-examination of P.W.5 reveals significant omissions, which amount to material contradictions. In cross-examination, P.W.5 stated: “6. It is not a fact I did not state before the I.O. that accused Prakash used saying SALA MAGIHA DHOBA or that accused Diptimayee snatched the S.D. book or that accused Sunil gave threats to P.W.4 to kill him.” To fortify his argument, learned counsel further referred to the testimony of P.W.6, the Investigating Officer, who categorically admitted during his cross-examination that P.W.5 had not stated the crucial incriminating facts during investigation. P.W.6 deposed as follows: “6. I had examined P.W.5 Ananta Kumar Parida, P.W.5 had not specified/stated before me that accused Prakash abused saying, ‘SALA MAGIHA DHOBA’ though he told that the accused persons abused saying, SALA MAGIHA DHOBА.’ He had not stated before me that accused Diptimayee Acharya snatched the S.D. Book. He had not stated specifically that accused Sunil had given threatening to kill P.W.4 though he stated in general that the accused persons had threatened to kill him.” Mr. Panda submitted that this clear contradiction between what P.W.5 deposed before the Court and what he allegedly told to the I.O. during investigation goes to the root of the prosecution case. According to Page 9 of 16 him, these inconsistencies, coupled with the contradictory testimony of P.W.4 regarding the caste of the accused persons, completely erode the credibility of the prosecution witnesses. He, therefore, argued that the learned trial court erred in ignoring these material contradictions and in mechanically accepted the prosecution version. Had these aspects been appreciated in their proper perspective, the appellants would have been entitled to the benefit of doubt. 10. However, with respect to the other offences under the Indian Penal Code, no substantial argument or material was brought before this Court by the learned counsel for the appellants to challenge the findings of the trial court. 11. On the contrary, the learned A.G.A. for the State contended that the trial court has duly appreciated the evidence on record and arrived at a well-reasoned conclusion. According to him, the alleged discrepancies highlighted by the defence are merely minor human errors, which are natural in the course of testimony and do not, in any manner, undermine the core prosecution case. He submitted that such minor inconsistencies are commonplace in criminal trials and do not warrant interference with the conviction. Page 10 of 16 12. Upon careful consideration of the submissions advanced and a thorough examination of the evidence available on record, this Court finds it necessary to assess whether the essential ingredients of the offence under Section 3(1)(x) of the SC/ST (PoA) Act stand proved through the evidence beyond reasonable doubt, and whether the findings of the trial court on the IPC offences call for any interference. To attract the provisions of Section 3(1)(x) of the SC/ST Act (as it existed then), the prosecution is required to establish: (i) that the victim is a member of the Scheduled Caste or Scheduled Tribe; (ii) that the accused persons are not members of SC/ST; (iii) that the accused intentionally insulted or intimidated the victim with reference to his caste; (iv) that such insult occurred in any place within public view; and (v) the act was committed with the intention to humiliate the victim because of his caste. In the present case, although P.W.4, (the informant) has stated in his examination-in-chief that he belongs to the Scheduled Caste and the accused persons belong to non-SC/ST communities, he contradicts himself during cross-examination by stating “I cannot exactly say the caste of the accused persons.” Page 11 of 16 This contradiction strikes at the very foundation of the offence under the special statute. The prosecution has produced no documentary evidence or any independent witness to affirm the caste status of the accused persons. Moreover, P.W.1, who was admittedly present during the occurrence, does not support the prosecution case regarding any caste- specific humiliation. His testimony is completely silent on any caste- based remark being made in his presence. Further, as regards P.W.5, another occurrence witness, serious contradictions emerge between his deposition in Court and his statement recorded under Section 161 CrPC. The Investigating Officer (P.W.6) has unequivocally stated that P.W.5 had not disclosed the specific caste- related abuses during investigation, but only made a general statement about abuses being hurled. This omission in the earliest statement, coupled with later embellishment, materially affects the reliability of the witness on the core ingredient of caste-based humiliation. In view of these inconsistencies and the failure of the prosecution to prove the mandatory elements of the offence under the S.C. and S.T. (PoA) Act, this Court is of the considered opinion that the conviction of the appellants under Section 3(1)(x) cannot be sustained. Page 12 of 16 13. However, as far as the offences under the Indian Penal Code are concerned, the evidence of P.W.1, P.W.4 and P.W.5 consistently establishes that the accused persons had entered the police out-post, abused the informant and other police staff, threatened them with dire consequences, attempted to forcibly take away the station diary, and obstructed the informant in the discharge of his official duties. These core aspects of the prosecution case stand corroborated, and the contradictions highlighted are not of such magnitude as to discredit the entire prosecution. The ingredients of the relevant IPC offences are sufficiently proved. 14. Accordingly, the conviction of the accused appellants U/s.3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is set aside, however, with regards to offence under Sections 448/353/506/34 of the Indian Penal Code, the same is upheld. Consequently, the accused-appellants should undergo the sentence as imposed by the learned Trial Court in regard to the penal offences. 15. However, at this point the learned Counsel for the Appellant on the question of sentence submitted that the incident relates back to the year 1994. At that point in time, the appellant No.1 was forty years of age, the appellant No.2 was twenty-nine years of age and the appellant No.3 was Page 13 of 16 thirty-six years of age. At present, the appellant No.1 is about seventy- one years of age, appellant no.2 is about 60 years of age and the appellant No.3 is about sixty-seven years of age. Over the years, they have led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating them after such a long delay, it is argued, would serve little penological purpose and may in fact be counter- productive, casting a needless stigma not only upon them but also upon their family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, in the fitness of situation, the appellants may be extended the benefit of the Probation of Offenders Act read with Section 360 Cr. P.C. 16. In Rattan Lal v. State of Punjab1, the Hon’ble Supreme Court held that the object of the Probation of Offenders Act is to reform the individual offender and to prevent the conversion of a youthful or first- time offender into a habitual criminal by subjecting him to prison life. It was held thus: - “The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that 1 AIR 1965 SC 444 Page 14 of 16 age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act.” 17. Apart from the above judgment, this case is also squarely covered by the judgment of this Court in the case of Pathani Parida & another vrs. Abhaya Kumar Jagdevmohapatra2, Dhani @ Dhaneswar Sahu vrs. State of Orissa3 and Sk. Wahed Ali vrs. State of Orissa4. 18. Having regard to the judgment of the Hon’ble Supreme Court and the catena of decisions of this Court, the present Criminal Appeal, regarding conviction under Section 3(1)(x) of the S.C. and S.T. (PoA) Act is concerned, is allowed. However, insofar as the conviction under Sections 448/353/506/34 of the Indian Penal Code is concerned, the same is turned down. But instead of sentencing the appellants to suffer 2 2012 (Supp-II) OLR 469 3 2007 (Supp-II) OLR 250 4 2025 ILR OnLine Orissa 254 Page 15 of 16 imprisonment, this Court directs the appellants to be released under Section 4 of the Probation of Offenders Act for a period of three months on their executing bond of Rs.5,000/- (Rupees Five Thousand) each within one month with one surety each for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellants shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of three months. 19. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 27th of November, 2025/Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 08-Dec-2025 10:05:01 Page 16 of 16