The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.197 of 2005 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Rajendra Behera and another ……. Appellants -Versus- State of Odisha ……. Respondent For the Appellants : Mr. Basudev Mishra, Advocate For the Respondent : Ms. Suvalaxmi Devi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 30.10.2025 :: Date of Judgment: 11.11.2025 S.S. Mishra, J. The two appellants consolidately preferred this appeal assailing the judgment and order dated 03.12.2004 passed by the learned A.D.J.-cum-Special Judge, Nuapada in S.A. No.12 of 2000 arising out of G.R. Case No.74 of 1997, whereby the learned trial Court while acquitting the appellants of the charges under Sections 3(1)(x) of SC & ST (PoA) Act, convicted the appellants for the offence punishable under Section 294/506/186/34 of I.P.C. On those counts, the appellants were sentenced to pay a fine of Rs.1,000/-, each for the offence under Section 506 of I.P.C., in default of payment of fine, to undergo S.I. for four months for the offence under Section 294 of I.P.C. and under Section 186 of I.P.C., the appellants were sentenced to pay fine of Rs.500/- each, in default of payment of fine, to undergo S.I. for two months. The default sentences were directed to run concurrently. 2.
Legal Reasoning
Heard Mr. Basudev Mishra, learned counsel for the appellants and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State. 3. The prosecution case in terse and brief is that on the date of occurrence, the informant (P.W.3), along with other constables, were deputed to Tukla High School with a command certificate (Ext.5) for maintaining law and order during the matriculation examination. At about 11:15 A.M., the A.S.I., Mr. Bhot, directed the informant and other constables to disperse the crowd that had gathered near the gate of the examination centre. During this process, the accused persons allegedly abused P.W.3 in vulgar language. The informant reported the matter to Page 2 of 16 the A.S.I., upon which the accused persons left the spot. Subsequently, at about 1:45 P.M., both accused persons allegedly arrived on a motorcycle, entered the school premises, and again abused P.W.3 in obscene language, further threatening to kill him. Thereafter, they left the place. The matter was reported to the Police Station, where P.W.10 registered Khariar P.S. Case No. 31 dated 13.03.1999 for the alleged commission of offences under Sections 294/506/186/ 34 of the I.P.C. read with Section 3(1)(x) of the SC & ST (PoA) Act. P.W.11 initially took up investigation, visited the spot, examined witnesses including Narayan Singh Majhi (P.W.1), Brundaban Purohit (P.W.7), and Laxman Sabar (P.W.3), and subsequently handed over charge of investigation to P.W.10 on 14.03.1999. P.W.10 continued the investigation, examined the remaining witnesses, seized the command certificate (Ext.5) and the caste certificate of the informant, and after obtaining necessary instructions from the Superintendent of Police, Nuapada, submitted the charge sheet against the accused persons. On their stance of denial and claim of trial, they were put to trial, after the charges were framed. Page 3 of 16 4. The prosecution in order to bring home charges, examined as many as eleven witnesses. Out of whom, P.W.3 was the informant, P.Ws.1, 6 and 7 were the witnesses to the occurrence, P.Ws.2 and 5 were the witnesses to the seizure of command certificate issued to P.W.3. P.W.4 was the then Headmaster of Tukla High School, who had been cross-examined by the prosecution on his hostile stance. P.W.8 was the then Physical Education Teacher of Tukla High School, who had been cross-examined by the prosecution. P.W.9 was a witness to the seizure of caste certificate of the informant and P.Ws.10 and 11 were the Investigating Officers of this case. 5. Initially the appellants were charged under Sections 294/506/186/34 of I.P.C. read with Section 3(1)(x) of the SC & ST (PoA) Act. However, the learned trial Court has recorded an acquittal in favour of the appellants of the offence under Section 3(1)(x) of SC & ST (PoA) Act by finding non-compliance of Rule 7 of the SC & ST (PA) Rule, 1995 which came into force on 31.03.1995. The learned trial Court has arrived at a conclusion that in the instant case, the Investigating Officers i.e., P.Ws.10 and 11 were working as O.I.C. and A.S.I. of Police Page 4 of 16 and they were well below the rank of Deputy Superintendent of Police. Hence, the entire investigation is vitiated. Accordingly, the appellants were acquitted of the charges for under Section 3(1)(x) of SC & ST (PoA) Act. The learned trial Court has concluded inter alia as under:- “7. At the outset it is to be stated that p.w.10 and 11 had investigated the case and P.W.10 had submitted charge sheet against the accused persons. In the case of re „Sessions Judge-cum-Special Judge, Cuttack, 2002(22) O.C.R.92, it was held by the Hon'ble Court that:- "Any investigation made by a police officer below the rank of the officer, so provided in the statute is vitiated and consequently the criminal proceeding initiated on the basis is also vitiated of such the because of non-compliance with statutory provisions". investigation In the case at hand, nothing has been produced by the prosecution to show that either p.w.10 or p.w.11 had been authorised under Rule-7 of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Rules- 1995 to investigate the case. In that view of the matter, charge u/s.3(1)(x) of is not maintainable persons. against the accused persons cannot be Consequently convicted u/s. 3(1)(X) of the Act. The evidence on record u/s.294/506/186 I.P.C. against the accused persons is preponderant and overwhelming.” the Act accused the Page 5 of 16 The State has not questioned such findings leading to the acquittal of the appellants of the charges under the SC & ST (PoA) Act, therefore, this Court need not delve upon the same. 7. The learned trial Court by heavily relying upon the evidence of the informant (P.W.3), P.W.6 and P.W.7 found the appellants guilty of the charges under Sections 294/506/186/34 of I.P.C. as the prosecution proved the same beyond all reasonable doubts. The findings which led to such conclusion are reproduced herein below for the convenience of ready reference:- “8.It is in the evidence of p.w.3. that on 13.3.99 he had been deputed to Tukla High School in connection with law and order duty along with A.S.I.. Jogeswar Bhoi, constable No.123 N.S.Majhi, constable No.207 and constable No.294. As per the direction of A.S.I., p.w.3 and other constable asked the mob consisting of more than 15 persons not to enter inside the school premises as the examination was going on. At that time accused Ranjendra Behera abused him by saying "TUE KEI BAI MAGIHA" and you police people can not be equal to my penis". Further the accused Surendra Behera threatened, p.w.3 to take revenge outside. P.w.3 reported the matter to A.S.I. and thereafter both the accused persons left the spot. It is in his evidence that again Page 6 of 16 during second sitting at about 1.45 P.M. both the accused persons came inside the campus in a motor cycle and challenged p.w.3 in vulgar words. Also, accused Surendra Behera threatened pw. 3 to kill him and throw his dead body in the jungle. By the above act of the accused persons p.w.3 was deterred from discharging his official duties. Also it is in the evidence of p.w.3 that by the vulgar words made by accused persons, he was humiliated. P.w.3 reported the matter in writing at the P.S. vide Ext.2. It is in the evidence of p.w.3 that he is Sabar by caste and as such he is a member of Schedule Tribe. Also it is in the evidence that his command certificate vide Ext.5 was seized by the I.O., during investigation. If is in the evidence of p.w.6 that on 13.3.99 he was doing his duties, alongwith p.w.3 at Tukla High School centre where matriculation examination was going on. Further it is in his evidence that the accused persons came and abused p.w.3 like „SALA MADARCHO‟' and, threatened him to take his life. Also it is in his evidence that at about 1.45 P.M. again accused persons came to the School premises in a motor cycle and had to threatened corroborated the above evidence of p.ws.3 and 6 in all material particulars. It is in the evidence of p.w.1 that on 13.3.99 he was doing his duty along with p.w.3 and other constable in the Tukla High School and at that time some outsiders including accused persons entered inside the school campus. Further it is in his evidence that p.w.3 had informed him that accused persons had uttered abusive words kill. P.w.7 p.w.3 Page 7 of 16 towards him. As has been stated above, p.w.4 the Head Master of Tukla High School and p.w.8 physical Education Teacher of the School the prosecution case. had not supported Nothing tangible has been brought out from the cross-examination of p.ws. 3,6 and 7 to discard their sworn testimony. However, there are minor discrepancies in their evidence which do not go to the substratum of prosecution case. Even if the accused persons had taken the plea of false implication, no defence witness had been examined from the side of the accused persons. In that view of the matter, the plea taken by the accused persons appears to be false. Law is well settled that false defence plea is an additional link to establish the charge against the accused persons where prosecution had cogently established the charge against the accused persons. P.ws.3,6 and 7 who are constables had no axe on their own to grind against the accused persons. It does not stand to reason as both the accused persons came to the examination centre and near the gate abused p.w.3 in vulgar words and also threatened him with dire consequences. Also it the above has been established evidence that both the accused persons against came inside Tukla High School campus at about 1.45 P.M. and abused p.w.3 in vulgar words and also threatened him to kill and to throw the dead body of p.w.3 inside the jungle. 9. The learned counsel on behalf of defence during course of argument had submitted that the evidence of p.w.3.6 and 7 suffers from serious infirmities and being constables they through Page 8 of 16 are interested witnesses for which basing on their evidence the accused persons can not be convicted. Also it was submitted that the then A.S.I. Mr.Bhoi had not been examined, for which adverse inference is to be drawn against the prosecution. The learned counsel on behalf of State on the other hand had submitted that the prosecution has amply proved the charges u/s.294/186/506/34 I.P.C. against the accused persons beyond all reasonable doubts. 10. To the above submissions of the learned defence counsel it is to be stated that 'Truth infirmity when from some always suffers projected through human process. Judicial quest for perfect proof often accounts for police presentation of full proof concoction. So, while it is necessary that proof beyond reasonable doubt should be adduced in criminal case, it is not necessary that it must be perfect. Further law is well settled that 'Conviction on the basis of testimony of police officers without any independent corroboration is not illegal. The evidence of witnesses can not be discarded simply because he is a police officer. Police officers are not worse than ordinary human beings. It can not be said that all of them are liars, just as it cannot be said that all of them are truthful. On the face of the aforesaid legal position I find no cogent reason for discarding the sworn testimony of p.ws. 3,6 and 7 who are police constables. Regarding discrepancies it is to be stated that the discrepancies which do not sake the basic version of the prosecution case may be discarded. The discrepancies which are to normal errors of perception or due Page 9 of 16 there stated above observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court must evaluate the entire materials on record by excluding the exaggerated version given by a witness. As has been are minor discrepancies in the evidence of p.ws.3,6 and 7 which do not got to the substratum-tum of the prosecution case,. For the reasons recorded above the contentions raised by the learned counsel on behalf of the defence are not tanable. 11. Consequently I find the accused persons not guilty u/s.3(1)(x) of the Act and they are acquitted from the said charge U/s.248(1) Cr.P.C. on the other hand I must hold that prosecution has well proved the charge u/s.294/506/186/34 I.P.C. against the accused persons beyond all reasonable doubts. Consequently I find the accused persons guilty U/s.294/506/186/34 I.P.C. and convict them thereunder.” 8. Being aggrieved by the judgment of conviction and order of sentence passed by the learned A.D.J.-cum-Special Judge, Nuapada, the present appeal has been preferred by the appellants. 9. Both the counsels appearing for the parties have taken me to the evidence of all the vital witnesses particularly P.W.3, the informant, P.W6 and P.W.7. All these witnesses are the official witnesses. P.Ws.4 Page 10 of 16 and 8 were the Headmaster and P.E.T. of the Tukla High School. From the evidence of P.Ws.3, 6 and 7, it is evident that P.Ws.4 and 8 were present at the place of occurrence and the entire incident has happened in front of them. However, both P.Ws.4 and 8 have not supported the prosecution version. Therefore, the case of the prosecution remained on the shoulder of P.Ws.3, 6 and 7 those who are the police officers. 10. P.W.3, who is the star witness of the prosecution is the informant in this case. He has deposed that on 13.03.1999, the incident had taken place at Tukla High School when the matriculation exam was going on. A mob of about 15 persons came inside the campus of the school to supply malpractice materials/chits to the examinees. That triggered the entire incident. He has stated that the appellant No.1-Rajendra Behera from amongst the mob had abused him saying ‘TUE KEI BAI MAGIHA’. The said accused had also obstructed to perform his official duty. The witness further stated that in the second session of the examination which took place at 1.45 P.M., along with the appellant No.1, the appellant No.2 came to the campus in a motor cycle and challenged him by abusing him in vulgar languages. He has further Page 11 of 16 stated that the appellant No.2 had also threatened him to transfer him from the Khariar Police Station. The deposition of P.W.3 regarding the second limb of incident happened at 1.45 P.M. is directed against the appellant No.2. He has also very categorically stated in the cross- examination that the entire incident had taken place in front of the office of the Headmaster, teachers and in presence of the parents of the students. From the evidence of P.W.3, it is apparent that the incident had taken place in two phases. One at 11.15 A.M. and another at 1.45 P.M. In the first incident, the appellant No.2 had not participated and he only joined when the second incident had taken place. P.W.6, who had accompanied P.W.3, the informant in his evidence has stated that he accompanied the informant on 13.03.1999 to attend the law and order duty at Tukla High School where matriculation exam was going on. He has further deposed that both the appellants came and abused P.W.3 stating ‘SALA MADARCHOD. He further stated that again at about 1.45 P.M., both the appellants came to the premises in a motorcycle and threatened the informant saying ‘SOHARA Page 12 of 16 PILA KIRE TOUTARI KORUCHU’. In the cross-examination, the said witness has very categorically stated that the Headmaster of Tukla High School, some of the guardians of the students were also present with the police party when they were performing their duties. He has also deposed that the appellants have not assaulted anybody at the place of occurrence only they were abusing the informant. Similarly, P.W.7, who was also a constable accompanied the police party stated that on 13.02.2000 the matriculation examination was going on at Tukla High School where he was deployed with the police party to check the malpractices and to control the mob. He stated that he has seen the appellants abusing the informant (P.W.3). He further stated that one of their staff who was asked by the A.S.I. of Police to drive both the accused persons, they uttered the words like ‘MAGIHA TU DEKHU BAI’ towards Laxman Sabar (P.W.3). The incident took place at 11.15 A.M. Both the appellants also threatened that they will take action against the police officers. He further deposed that at 1.45 P.M., both the accused persons again came to the place of occurrence in a Rajdoot motorcycle and threatened the informant. He further stated that the Page 13 of 16 incident has taken place in front of the office of the Headmaster where the Headmaster and his staff were present. The said witness has also stated that in both phases of incident at 11.15 A.M. and 1.45 P.M., both the appellants were present which stands belied by the version of P.W.3. Moreover, the said witness has stated that the incident had taken place on 13.02.2000. The contradiction in the version of P.Ws.3, 6 and 7 are writ large. They are being the police officers, their contradictory version relating to an incident which cause disruption in the performance of their duties creates a serious doubt. 11. From the evidence of all the three witnesses as discussed above, it has come on record that the incident had taken place in front of the office of the Headmaster of the Tukla High School. The Headmaster was examined by the prosecution as P.W.4, who has stated that although the police had come to the school premises on his requisition to attend the law and order duty but there was lot of halla outside the school premises and there was a mob. He further stated that he was busy in conducting the examination. Therefore, he did not see the exact incident as has been Page 14 of 16 narrated by P.W.3, the informant. He was cross-examined by the prosecutor at length but nothing could be elucidated from him. Similarly, P.W.8, who was the P.E.T. of the Tukla High School was also present at the place of occurrence did not support the prosecution. The prosecutor attempted to elucidate something in favour of the prosecution by cross-examining the said witness but to no avail. 12. On the face of such inconsistent, contradictory version of the witnesses, convicting the appellants for the offences under Sections 294/506/186/34 of I.P.C. may not be safe particularly because of the fact that all the witnesses have deposed in unison that there was a mob inside the school premises and the police party were trying to disburse the mob. A contradictory version regarding two incidents happened in morning session and afternoon session is also emanating on record. Who had participated in which of the incident is also not coming to fore in clarity. Therefore, the appellants are entitled to the advantage of benefit of doubt. In such circumstances, the finding recorded by the learned trial Court needs to be interfered with. Page 15 of 16 12. Hence, by extending the benefit of doubt to the appellants, the judgment and order dated 03.12.2004 passed by the learned A.D.J.-cum- Special Judge, Nuapada in S.A. No.12 of 2000 against the appellants are set aside and the appellants are acquitted from all the charges under Sections 294/506/186/34 of I.P.C. The bail bond furnished stands discharged.
Decision
13. Accordingly, the CRLA is allowed and disposed of. The High Court of Orissa, Cuttack. Dated the 11th November, 2025/ Swarna (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 13-Nov-2025 10:08:54 Page 16 of 16