The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.156 of 1997 (In the matter of an application under Section 374(2) read with Section 382 of the Criminal Procedure Code, 1973) Gangadhar Patra and others ……. Appellants -Versus- Panchanan Murmu ……. Respondent For the Appellants : Mr. J. Katikia, Amicus Curiae For the Respondent : Ms. Sarita Moharana, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 07.08.2025 :: Date of Judgment: 19.08.2025 S.S. Mishra, J. The present criminal appeal is directed against the judgment dated 17th July, 1997 passed by the learned Special Judge, Balasore in Spl. Case No. 45 of 1994, whereby the present appellants were convicted under Section 3(1)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo rigorous imprisonment for six months. 2. A written instruction dated 26.09.2023 received from the I.I.C., Baliapala Police Station is placed on record, which indicates that appellant no.l Gangadhar Patra, has died over the last four years, hence the appeal qua him stands abated. In so far as other appellants are concerned, it is informed that they are residing in their village. The written instruction is already on record. 3.
Legal Reasoning
Heard Mr. J. Katikia, learned Amicus Curiae, for the appellants and Ms. Sarita Moharana, learned Additional Standing Counsel for the State. 4. The prosecution case in brief is that on 03.11.1993 at about 10.00 A.M., the complainant, a member of the Scheduled Tribe (Santal), was ploughing his agricultural land when appellant no. 1 along with two others allegedly entered the land armed with lathis and bhujalis, unyoked Page 2 of 10 his plough, drove away the bullocks, took away the plough and yoke, and abused him in filthy language referring to his caste. The complainant alleged further threats of life to him if he returned to the land and to set his house on fire. 5. On the basis of the complaint, the learned S.D.J.M. initially took cognizance under Sections 419, 420, and 323 IPC and Section 3 of the SC/ST Act. The matter was later transferred to the learned Special Court, which took cognizance under Section 3(1)(v) and 3(1)(x) of the SC/ST Act and conducted the trial. 6. During trial, three witnesses were examined on behalf of the complainant, including himself (P.W.2). P.W.1 claimed to be an eye- witness grazing cattle nearby, while P.W.3, a close relative of the complainant, did not support the prosecution and was declared hostile. The trial court disbelieved the prosecution in respect of the charge under Section 3(1)(x) but, placing reliance on part of the evidence of P.Ws. 1 and 2, convicted the appellants under Section 3(1)(v) of the Act. The relevant portion of the aforesaid judgment is extracted herein below:- Page 3 of 10 “9. The incident took place on3.11.93. But the complaint petition was filed on 10.11.93 in the Court the S.D.J.M., Balasore- wrongly of course. Information was lodged at the police station, but no action was taken on the report of the complainant by the OIC of the concerned Police station. Due to poverty and ignorance, perhaps, the complainant was unable to call for the FIR lodged before the police to be proved in this case. He could not bring the inaction of the police officers to the notice of his higher authorities believing that his grievances could be redressed in the proper forum, that is, the Special Court, where he took shelter later. The defence could not examine any witness to prove that the disputed land belonged to the accused persons. 10. Duly considered, the evidence of the prosecution adduced by P.Ws. 1 and 2 has proved the complainant's case beyond all reasonable doubt. I find the accused persons guilty under section 3 (1) (v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act and convict them thereunder. The convicts who attempted to grab the property of the is a poor man of Scheduled Tribe are not to be leniently dealt with. Heard them. They still maintain to be innocent. But in view of my foregoing findings of guilt of the accused persons, I sentence each of the convicts to undergo R.I. for 6 (six) months under section 3 (1) (v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act.” Page 4 of 10 7. Assailing the conviction, Mr. Katikia, learned amicus Curiae for the appellants submitted that the prosecution failed to prove ownership and possession of the disputed land beyond reasonable doubt. The alleged eye-witness’s testimony is riddled with contradictions, material witnesses named in the complaint petition were not examined, and the unexplained delay in filing the complaint petition casts a serious doubt on the prosecution case. It is further urged that there was non-production of the FIR allegedly lodged at the police station, defective recording of the statement of accused under Section 313 Cr.P.C., and most importantly, the alteration of the charge was not carried out in accordance with Section 216 Cr.P.C., thereby causing serious prejudice to the accused. 8. Upon consideration of the records, it is evident that the trial Court initially framed charges under Section 3(1)(x) of the SC/ST Act. However, in the judgment, the learned trial judge recorded an acquittal for the offence under Section 3(1)(x) but convicted under Section 3(1)(v) without there being a proper alteration of charge or due Page 5 of 10 compliance with Section 216 Cr.P.C. The law laid down by the Hon’ble Supreme Court in Dr. Nallapareddy Sridhar Reddy v. State of Andhra Pradesh, reported in (2020) 12 SCC 467, makes it clear that alteration or addition of a charge must be read over and explained to the accused, and the accused must be afforded an opportunity to meet such altered charge. Failure to do so vitiates the trial if prejudice is caused. The relevant portion of the aforesaid judgment is extracted herein below:- “16. Section 216 appears in Chapter XVII CrPC. Under the provisions of Section 216, the court is authorised to alter or add to the charge at any time before the judgment is pronounced. Whenever such an alteration or addition is made, it is to be read out and explained to the accused. The phrase "add to any charge" in sub-section (1) includes addition of a new charge. The provision enables the alteration or addition of a charge based on materials brought on brecord during the course of trial. Section 216 provides that the addition or alteration has to be done "at any time before judgment is pronounced". Sub- section (3) provides that if the alteration or addition to a charge does not cause prejudice to the accused in his defence, or the prosecutor in the conduct of the case, the court may proceed with the trial as if the additional or alternative charge is the original charge. Sub- section (4) contemplates a situation where the addition or alteration of charge will prejudice the accused and empowers the court to either direct a new trial or Page 6 of 10 adjourn the trial for such period as may be necessary to mitigate the prejudice likely to be caused to the accused. Section 217 CrPC deals with recalling of witnesses when the charge is altered or added by the court after commencement of the trial.” In the present case, there is no record of any such alteration being made or explained to the appellants, which goes to the root of the matter. The offence under Section 3(1)(x) of the SC/ST (PoA) Act being distinct offences, none alteration of charges and none affording opportunity of being heard is prejudicial to the appellants. 9. Further, the alleged words of caste abuse, as deposed to by P.W.1 and P.W.2, materially differ. The trial court itself found such discrepancies sufficient to disbelieve the offence under Section 3(1)(x). When the primary witnesses are not consistent about the alleged utterances, and when P.W.3, an independent though related witness, did not support the prosecution, the foundation of the prosecution apparently shaken. 10. The prosecution also failed to produce the FIR allegedly lodged before the police preceding the complaint, and no explanation was offered for such omission. The unexplained delay of seven days in filing Page 7 of 10 the complaint petition before the learned SDJM further casts a shadow of doubt on the veracity of the allegations, particularly in light of the admitted enmity between the parties. 11. It is also settled law that in a criminal trial, the examination of the accused under Section 313 CrPC is not a mere formality. The incriminating circumstances must be put to the accused, failing which such circumstances cannot be used against him. The Hon’ble Supreme Court in Sujit Biswas vs. State of Assam, reported in (2013) 12 SCC 406, held thus:- “20. It is a settled legal proposition that in a criminal trial, the purpose of examining the accused person under Section 313 CrPC, is to meet the requirement of the principles of natural justice i.e. audi alteram partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must In a case of take note of such explanation. circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 CrPC, cannot be Page 8 of 10 from used against him and must be excluded consideration. The said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement.” In the case in hand, the offensive utterance of the accused- appellants taking the caste name of complainant as narrated by the witnesses are completely different, however, the incriminating material/evidence in exact verbatim was not put to the accused while recording their statement under Section 313 Cr.P.C. This is not curable, hence, the benefit of doubt must be accrued to the accused. 12. On cumulative consideration of the above infirmities namely, the non-compliance with Section 216 CrPC in respect of alteration of charge, the contradictions in the testimony of key witnesses, non- production of the FIR, unexplained delay in filing the complaint, and defective Section 313 Cr.P.C examination of the statement by not putting the incriminating material, this Court is of the considered view that the prosecution has failed to prove the charge under Section 3(1)(v) of the SC/ST Act beyond reasonable doubt. The appellants are entitled to the benefit of doubt. Page 9 of 10 13. Accordingly, the judgment of conviction and sentence dated 17.07.1997 passed by the learned Special Judge, Balasore in Spl. Case No. 45 of 1994 is hereby set aside. The appellants are acquitted of the charge and the bail bond furnished by them stands discharged. 14. This Court records the appreciation for the effective and meaningful assistance rendered by Mr. J. Katikia, learned Amicus Curiae. He is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as token of appreciation. 15. Accordingly, the Criminal Appeal is allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 19th August, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 21-Aug-2025 10:22:37 Page 10 of 10