The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 301 of 1999 (In the matter of an application under Section 374 of Criminal Procedure Code) Daitari Prasad Sahu and others ……. Appellants -Versus- Harihar Behera and another ……. Respondents For the Appellants : Mr. Pratik Nayak, Advocate For the Respondents : Mr. R.B. Dash, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing and Judgment: 23.10.2025 S.S. Mishra, J. The present Criminal Appeal is conjointly preferred by eight appellants assailing the judgment and order dated 27.11.1999 passed by the learned Special Judge, Balasore in Special Case No. 54 of 1996, whereby the appellants have been convicted for offence punishable under Section 3(1)(x) of S.C. & S.T. (PoA) Act and sentenced them to undergo R.I. for six months and to pay a fine of Rs.100/- each, in default to undergo further R.I. for seven days. 2. This appeal is pending since 1999. During pendency of the appeal, the whereabouts and wellbeing of the appellants was sought for. The learned State Counsel has placed on record the report dated 13.08.2025 stating that appellant no.1 has expired. Relying upon the said report, vide order dated 19.08.2025, the present appeal qua appellant no.1-Daitari Prasad Sahu stood abated, as he expired on 17.12.2006 and no application has been filed under Section 394 by his L.Rs or next friend. Therefore, the present appeal is confined to the remaining seven appellants. 3.
Legal Reasoning
Heard Mr. Pratik Nayak, learned counsel for the appellant and Mr. R.B.Dash, learned Additional Standing Counsel for the State. 4. The prosecution story, in brief, is that the complainant (P.W.1) belongs to 'Niari' (Radhi) by caste and, as such, a member of scheduled caste, whereas the accused persons are members of non-scheduled caste and non-scheduled tribe. The complainant alleged that on 26.07.1997 at Page 2 of 15 about 8.00 A.M. the accused persons in order to take revenge due to their previous grudge on the family of the complainant, trespassed into the land of the complainant by cutting the south-western corner fence of his homestead and wanted to dig a 'Nala'. When the complainant and his mother protested to such illegal act of the accused persons, they chased them to assault by means of lathis and spades etc. Further they abused them saying “SALA RADHI, TUMA MAAKU GIHEIN, TUMA BHAUNIKU GIHEIN” and they threatened that would injur them if they would come out of their house. There was huge gathering at the spot and due to the abuse, the complainant along with his mother was dishonoured and sustained loss due to damage to their fence. On same day, the complainant lodged a report at the Police station and as the police did not take any action, he filed the complaint. 5. The present case is arising out of a complaint case filed by P.W.1. P.W.1 has filed the complaint making various allegations against the eight accused persons. The complainant (P.W.1) recorded his initial statement under Section 202 Cr.P.C., inter alia, stating as under:- Page 3 of 15 “1. I complained against 1) Daitari Prasad Sahu 2) Khagendra Prasad Sahu, 30 Jogendra Pr. Sahu, 4) Baburam Pradhan, 5) Bhagabat Behera, 6) Chakradhar Behera, 7) Jogendra Mahalik, 8) Rabindra Mahalik. I belong to „Radhi‟ and „Niari‟ caste and thus belonging to scheduled caste. The „Sahu‟ accused persons belong to „Teli‟ caste and „Pradhan‟ accused belonged to „Khadayat‟ by caste and „Behera‟ and „Mahalik‟ accused persons belong to „Teli‟ and, as such, they are non-scheduled caste. 2. The occurrence took place on 26.7.96 at about 8 A.M. Accused persons cut the south-western corner of my fence, trespassed into the bari and they tried to dig the earth. When I opposed along with my mother, they chased me to assault and they abused me as “SALA RADHI‟. The outsiders were present while the accused persons were abusing as above. 3. I lodged written F.I.R. at Khantapara P.S.” 6. Relying upon the allegations made in the complaint coupled with the initial statement, the learned trial court proceeded against all the accused persons by framing charges under Section 3(1)(x) of the SC & ST (PoA) Act read with Section 506/34 IPC. The complainant examined three witnesses. P.W.1 is the complainant himself, whereas P.W.2 is the cousin brother and P.W.3 is a co-villager and cousin. Therefore, all the three witnesses examined by the complainant are related. P.W.1, the complainant in his evidence has stated that he is „Radhi‟ by caste and Page 4 of 15 accused Rabindra and Jogendra are Harijana and other accused persons are Hindu. On 26.07.1997 at 8.00 A.M. the occurrence took place in the backyard of his house. The accused persons removed the fence of his backyard and entered inside and all of them wanted to dig a drain at his backyard. The said witness, his mother and cousin objected to such act of all the eight accused persons. At this, the accused persons chased to assault and they abused saying “SALA RADHI TO MAAKU NIA TO BHAUNIKU NIA”. The said witness has also stated that he has lodged the report before the police, but no action has been taken. Hence, he has filed the complaint case. He has also disclosed that a civil suit is pending in the court of the learned Civil Judge (Jr. Division), Balasore between the accused and their family. He has placed on record certain injunction orders. In the further cross-examination, the said witness has also stated that a proceeding under Section 107 Cr.P.C. is pending amongst them being Misc. Case No.269 of 1993 and there are also other litigations pending between them. The said witness has categorically stated that he has filed a caste certificate, but neither the caste certificate is exhibited nor in the record the same is found. Therefore, the learned trial court has Page 5 of 15 recorded a finding that the caste certificate has not been filed by the complainant. The complainant-P.W.1 has also stated that the accused Daitari Sahu, was the Sarpanch of the village and there was some misunderstanding going on between them. P.W.2, who is the brother of P.W.1, the complainant also narrated similar fact and stated that the accused persons have abused them stating “SALA RADHI TO MAKU NIA TO BHAUNIKU NIA”. The said witness has also disclosed that there are series of litigations pending between the complainant and the accused persons. P.W.3 while supporting the narratives of P.Ws.1 and 2 has stated that the accused persons have abused P.W.1 stating “SALA RADHI MAGIHA BHAUNIGIHA TU ASANI PAKHAKU KIA RAKSHYA KARIBA”. 7. From the evidence of all these three witnesses, three things are emanating. Firstly, the complainant though claiming himself to be a scheduled caste, but has not proved the said fact by bringing the document on record. He has only stated that he has filed the caste certificate. But the said certificate is neither exhibited nor found on record. Secondly, there are multiple litigations between the complainant Page 6 of 15 and the accused persons. Thirdly, the occurrence took place in the backyard of the complainant and at that point of time, no other independent witnesses were present those who belong to general caste. 8. Mr. Dash, learned counsel for the State submits that in so far as P.W.3 is concerned, she is a co-villager and she is no way related to P.W.1. Her testimony indicates that P.W.1 is his brother by village courtesy. That apart, it is also illuminating on record that P.W.1 in his preliminary statement has stated that the accused persons have chased to assault him and abused him stating “SALA RADHI”. Further this version was substantially improved by P.W.1 in his testimony by stating that the accused persons have abused him stating “SALA RADHI TO MAAKU NIA TO BHAUNIKU NIA”. P.W.2 in his evidence, however, has narrated different expression being used by the appellant to abuse P.W.1 by stating that accused persons have abused P.W.1 stating “SALA RADHI TO MAKU NIA TO BHAUNIKU NIA”. P.W.3 again has given a different version in so far as hurling of abuse by the accused persons are concerned, inter alia, stating that the accused persons have abused Page 7 of 15 P.W.1 stating “SALA RADHI MAGIHA BHAUNIGIHA TU ASANI PAKHAKU KIA RAKSHYA KARIBA”. 9. Apparently, four versions are coming forth on record regarding the abuses allegedly to have been hurled by accused persons to P.W.1. These abuses, as has been narrated by the witnesses, have not been put to the accused while recording the statement under Section 313 Cr.P.C. Any incriminating material which has come on record in the prosecution evidence, has not been put to the accused while recording the statement under Section 313 Cr.P.C, cannot be utilized against the accused persons. Therefore, the language used by the witnesses to narrate the abuses alleged to have been hurled by the accused persons, cannot be read against the appellants, as the same are not put to the accused on their recording of statement under Section 313 Cr.P.C. That apart, if at all these accused persons have abused the P.W.1 by taking the caste, the same appears to have not been done in the public view. 10. It is settled principle of law that utterances, if any, made by the accused persons being not “in any place within public view” the basic Page 8 of 15 ingredient for attracting the offence under Section 3(1)(x) is not made out. In this regard, the judgment of the Hon‟ble Supreme Court reported in (2023) 17 SCC 615 in the case of Ramesh Chandra Vaishya vrs. State of Uttar Pradesh and another, assumes relevance. Paragraphs-17 and 18 of the said judgment are reproduced for convenience of ready reference:- “17. That apart, assuming arguendo that the appellant had hurled caste related abuses at the complainant with a view to insult or humiliate him, the same does not advance the case of the complainant any further to bring it within the ambit of Section 3(1)(x) of the SC/ST Act. We have noted from the first FIR as well as the charge-sheet that the same makes no reference to the utterances of the appellant during the course of verbal altercation or to the caste to which the complainant belonged, except for the allegation/observation that caste-related abuses were hurled. The legislative intent seems to be clear that every insult or intimidation for humiliation to a person would not amount to an offence under Section 3(1)(x) of the SC/ST Act unless, of course, such insult or intimidation is targeted at the victim because of he being a member of a particular Scheduled Caste or Tribe. If one calls another an idiot (bewaqoof) or a fool (murkh) or a thief (chor) in any place within public view, this would obviously constitute an act intended to insult or humiliate by user of abusive or offensive language. Even if the same be directed generally to a person, who happens to be a Scheduled Caste or Tribe, per se, it may not be sufficient to attract Section 3(1)(x) unless such words are laced with casteist remarks. Page 9 of 15 18. Since Section 18 of the SC/ST Act bars invocation of the court's jurisdiction under Section 438 CrPC and having regard to the overriding effect of the SC/ST Act over other laws, it is desirable that before an accused is subjected to a trial for alleged commission of offence under Section 3(1)(x), the utterances made by him in any place within public view are outlined, if not in the FIR (which is not required to be an encyclopaedia of all facts and events). but at least in the charge-sheet (which is prepared based either on statements of witnesses recorded in course of investigation or otherwise) so as to enable the court to ascertain whether the charge-sheet makes out a case of an offence under the SC/ST Act having been committed for forming a proper opinion in the conspectus of the situation before it, prior to taking cognizance of the offence.” 11. It is also apparent from the record that between the accused and the complainant, there are many civil and criminal litigation pending on the same subject. Therefore, false implication, as alleged by the complainant, cannot be ruled out. In this regard, Mr. Nayak, learned counsel for the appellants has relied upon the judgment of the Hon‟ble Supreme Court passed in SLP (Crl.) No. 1608 of 2020 in the case of Rabindra Kumar Chhatoi vrs. The State of Odisha and another. He has emphatically relied upon paragraph-15 of the said judgment, which reads as under:- Page 10 of 15 “15. The reference to the judgment of this Court in Hitesh Verma (supra) in Paragraph "16" is in the context of there being a civil dispute which is between the parties and this Court observed that where there is a dispute regarding possession of property before the Civil Court, any dispute arising on account of possession of the said property, would not disclose an offence under the Act unless the victim is abused, intimidated or harassed only for the reason that she belongs to the scheduled caste or scheduled tribe. We do not think that in the instant case, it is necessary to apply the aforesaid dictum to the present case, in view of the reasoning that we have given in the aforesaid paragraphs.” Relying upon the aforesaid judgment, Mr. Nayak, learned counsel for the appellants submits that the case of the present accused persons is squarely covered by the said judgment. 12. From the fact scenario of the present case, it emanates that due to the long pendency of disputes between the complainant and the appellants, the complainant attempted to falsely implicate the appellants. Therefore, instead of filing an appropriate FIR before the police, the complainant choosed to file a complaint case. 13. Mr. Dash, learned counsel for the State while controverting the submission made by Mr. Nayak, has supported the judgment. Page 11 of 15 14. The learned trial court in paragraph-7 of its judgment has recorded as under:- “7. The prosecution claims that the informant, P.W.l, is a member of the scheduled caste being 'Radhi'. The accused persons in their statements U/S 313 Cr.P.C. have admitted that P.W.1 is 'Radhi' by caste; but they state that they do not know if 'Radhi' caste is included in the list of the scheduled caste. The learned Defence counsel has argued that unless P.W.1 is 'Radhi' by profession, he cannot be included in the scheduled caste. In support of his contention, he has filed the xerox copy of the circular issued by Director (SC & ST) and Ex-Officio Addl. Secretary to Government, Welfare Department, Orissa, Bhubaneswar. On perusal of that circular, it is crystal clear that 'Radhi' is included in the list of the Scheduled caste and no such restriction as contended by the learned Advocate has been imposed for issuing caste certificate to 'Radhi', „Niali‟ and „Ghani‟. It is true that in this case the prosecution has not filed the caste certificate to show that P.W.1 and his family belongs to scheduled caste. But, in view of the admitted fact that P.W.1 is „Radhi‟ by caste and „Radhi‟ is included in the scheduled caste, I find that P.W.1 is a member of the scheduled caste.” 15. To satisfy the ingredients of any offence under SC & ST Act, it is obligatory on the part of the prosecution to bring on record the evidence to prove the caste of the victim. The evidence is not only to be cogent but also reliable document issued by the competent authority, rather than mere oral deposition of the witnesses required to be brought on record. The Hon‟ble Madhya Pradesh High Court in the matter of Prahalad and Page 12 of 15 another vrs. The State of M.P., (Criminal Appeal No.50 of 2004) has ruled 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”. The Madhya Pradesh High Court in another judgment reported in 2012 MP 1309, Chalaniya Dheemar vrs. State of M.P. has also held as under:- “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. for corroboration or contradiction of its maker. It is also important to note that police registered the offence under section 354 of Indian Penal Code only and not under the provisions of SC & ST (Prevention of Atrocities) Act. Trial It can be used only Page 13 of 15 Court recorded the finding that it was established that the complainant who accused outraged modesty of belonged to scheduled caste but it appears to have been based on no legal and substantive evidence.” 16. Relying upon the aforementioned two judgments of Madhya Pradesh High Court, this Court in the matter of Ajay Kumar Singh vrs. State of Orissa in CRA No. 315 of 1995 has held as under:- “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.” 17. In view of the aforementioned discussions, in the absence of any evidence placed by the complainant on record proving his case, the basic ingredient requires to establish any offence under provisions of SC & ST Act case is doubtful. Hence, the conviction recorded by the learned trial Page 14 of 15 court cannot sustain in the eye of law. That apart, since the alleged occurrence took place in the backyard of P.W.1 (complainant), as has been narrated by all the witnesses and not in a public view, the case of the appellants is also covered by the judgment of the Hon‟ble Supreme Court in the case of Ramesh Chandra Vaishya (supra). 18. Accordingly, the impugned judgment and order dated 27.11.1999 passed by the learned Special Judge, Balasore in Special Case No. 54 of 1996 is set aside and the appellants are acquitted of all the charges. The bail bond furnished stands discharged. 19. Accordingly, the Criminal Appeal is allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 23rd October, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 30-Oct-2025 19:39:27 Page 15 of 15