The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 229 of 1999 (In the matter of an application under Section 374 (2) of Criminal Procedure Code) Udayanath Samantaray ……. and others -Versus- Appellants State of Orissa and another ……. Respondents For the Appellants : Mr. Ashreet Behera, 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 four appellants assailing the judgment and order dated 22.09.1999 passed by the learned Special Judge under S.C. & S.T. (P.A) Act,
Legal Reasoning
Khurda in T.R. Case No. 78 of 1998 (arising out of 1CC No.7 of 1998), whereby the appellants have been convicted for offence punishable under Section 3(1)(x) of S.C. & S.T. (PoA) Act and on that count the appellants were sentenced to undergo R.I. for six months and to pay a fine of Rs.100/- each, in default to undergo R.I. for one month, besides convicting the appellants for offence under Section 427/34 IPC and sentenced them to undergo R.I. for three months. 2. The prosecution story in brief is that in the year 1998, the complainant had raised paddy crops over his land appertaining to plot Nos. 685 and 715 covered under Khata No.202 measuring 608 decimals by doing all agricultural operations. On 27.8.98, all the accused persons forcibly entered into the land of the complainant, damaged his paddy seedlings, in consequence of which the complainant sustained a loss of Rs. 200/- and on protest by him, the accused persons abused him in name of his caste by saying “MAGIHA HADI PILAKU ETHARE MARI POTI DEBI. KALIKATARE CHAKIRI KARI MAGIHAR GANDIRE PANI HOI GALANI” and also threatened to murder him. It is also alleged that at the time of such abuse, the accused Udayanath Samantaray dealt a blow with a Katua on the waist of the complainant Page 2 of 12 and the other accused persons chased him and his son with a motive to assault. So, out of fear, the complainant and his son fled away from that place and at that time, the accused persons were also threatening him to set their house on fire, in case he reported the matter at the police station. 3. The present case is arising out of a complaint case. The complainant examined himself as P.W.1. P.W.2 claimed to be an eye witness to the occurrence, whereas P.W.3 is the son of P.W.1 (complainant). So as to establish the stand taken by the appellants, they have also examined one witness, namely, Raja Kishore Saho (D.W.1). The prosecution story hinges upon the evidence of only three witnesses. The complainant (P.W.1) filed a sketchy complaint without giving any details of the offence and not even supported by any affidavit. He led the preliminary/initial evidence, inter alia, stating as under:- “I raised paddy crops in my recorded land situated in mouza Nalsingh and did all other agricultural operation. The accused persons have been creating trouble in my possession over this land since long for which I have also reported against them at the P.S. Yesterday, all the four accused persons damaged all the paddy crops raised by me over that land. When I protested such action of the accused persons they abused me saying “SALA HADI SALA GANDIRE PANI HOI GALANI TO PANI KADHI Page 3 of 12 DEBU”. They also threatened to set fire to my house and murder me in case I report the matter at the P.S. The accused persons also chased me to assault, but out of fear I fled away to my house.” 4. On relying upon the complaint read with the preliminary/initial evidence, the learned trial court framed the following charges:- “Firstly- That you on the 27th day of August, 1998 at about 4 P.M. at village Nalasingh, in furtherance of your common intention, committed mischief by uprooting the paddy plant of the land of the complainant Bhrungu Naik, by causing a wrongful loss of Rs.200/- to him and thereby committed an offence punishable U/s 427/34 I.P.C. and within my cognizance; furtherance of your common Secondly- That you on the aforesaid date, time and place, in intention committed criminal intimation to said Bhrungu Naik by threatening said Bhrungu Naik with injury to his person and thereby committed an offence punishable U/s 506/34 I.P.C. and within my cognizance; Thirdly- That you on the aforesaid date, time and place, intentionally insulted said Bhrungu Naik, a person belonging to scheduled caste, with intent to humiliate him in a place within public view and thereby committed an offence punishable U/s 3(x) of S.C. & S.T. (P.A) Act and within my cognizance.” 5. The learned trial court, on the basis of the evidence on record, culled out three issues, namely:- “(i) Whether on the date and hour of occurrence, all these accused persons in furtherance of their common intention, Page 4 of 12 entered into the land of the complainant and committed mischief by uprooting the paddy seedling raised by him; (ii) Whether these accused persons in furtherance of their common intention, threatened the complainant with injury to his person; and (iii) Whether all these accused persons intentionally insulted the complaint, a member of the scheduled caste, with intent to humiliate him in a place within public view.” 6. While answering point nos.1 and 3 in affirmative, the learned trial court formed the following conclusion: “From the discussions above, therefore, I am inclined to say that the complainant has not been able to establish the charge U/s 506/34 I.P.C. against the accused persons and accordingly, they are found not guilty of the said offence and consequently, acquitted thereof as per the provisions of Section 248(1) Cr.P.C. However, the complainant has been able to establish the charges U/s 427/34 I.P.C. and Section 3(1)(x) of S.C. & S.T. (P.A.) Act against the accused persons and accordingly, I hold the accused persons guilty of the said offences and convict them thereunder.” 7. The appellants have filed the present appeal making out a grievance that the conviction and sentence recorded by the trial court is not sustainable in law and facts on record. Page 5 of 12 8.
Legal Reasoning
Heard Mr. Ashreet Behera, learned counsel appearing on behalf of Mr. Manas Chand, learned counsel for the appellants and Mr. R.B. Dash, learned Additional Standing Counsel for the State. 9. At the outset, Mr. Behera, learned counsel for the appellants has pointed out that the charge framed by the learned trial court is erroneous in so far as the offence under S.C. & S.T. Act. In fact, the learned trial court has gone wrong by framing the charge under Section 3(1)(x) of the S.C. & S.T. (P.A.) Act, whereas the entire evidence is directed towards the offence under Section 3(1)(s) of the S.C. & S.T. Act. Therefore, serious prejudice is caused to the appellants. 10. Mr. R.B. Dash, learned Additional Standing Counsel for the State countering the same has relied upon Section 464 of Cr.P.C. and submitted that error/omission in framing of charge is not a ground for upsetting the reasoned judgment passed by the learned trial court convicting the appellants. 11. Besides the aforementioned technical point raised by the appellants, Mr. Behera, learned counsel for the appellants has taken me Page 6 of 12 to the evidence of all the witnesses in detail. With the help of the learned counsel appearing for the appellants, I have not only perused the oral testimony of all the three witnesses and defence witness but also the exhibits and the complaint. 12. P.W.1 is the complainant in the present case. He has stated in his testimony as under:- “1. About six months back at about 4 P.M. while myself and my son Duryodhan Naik went to our paddy filed situated in village Nalsingh, found these accused persons damaging my paddy seedllings. On protest the accused persons abused me saying „SALA HADI PILA MARI POTI DEBU, TO GHATR NIAN LAGEI DEBU, TO GANDIRE PANI HELANI etc.‟ and chased to assault me with a Katua. Accused Udayanath Samantray chased to assault me with that Katua while others chased to assault me by holding HATA KODI.” However, in paragraph-3 of his evidence, he has categorically stated that he belongs to Scheduled Caste and he can produce the certificate to show that he belongs to Scheduled Caste. However, no certificate or any other supporting documents has been placed on record to prove that he belongs to Scheduled Caste. In the further cross- examination, the said witness (P.W.1) has also stated that the land in subject he has been cultivating, was taken on mortgage basis from one Page 7 of 12 Ashok Naik. He has also stated that he has the documents with him to show that he has been cultivating the land on mortgage basis for about last three to four years. However, he could not give the Khata number or plot number of the land and has also not placed on record any document to that effect. He has admitted the fact that there was a civil dispute going on between them and he has filed a civil suit against the accused persons. He has also admitted the fact that he has not lodged any complaint before the police regarding the incident. 13. P.W.2 although has corroborated the evidence of P.W.1 to the extent that the accused persons have uprooted the paddy plants and also abused P.W.1, but at the same time, he too has stated that he cannot specify the particulars of land. P.W.2 has also stated that while the accused persons were uprooting the paddy seedlings on the land, neither P.W.1 nor P.W.3 were present, they reached subsequently. 14. P.W.3 is the father of P.W.1, who has supported the case of the complainant (P.W.1). However, he has stated that he cannot specify the particulars of the land. He has also stated that he cannot produce any Page 8 of 12 document to show that they were cultivating the land on „bhaga‟ basis. He further went on to depose that the accused persons have not damaged any paddy seedlings from the land. 15. From the conjoint reading of the evidence of all the three witnesses, it is apparent that the complainants/witnesses have not specifically identified the land from where the paddy seedlings were alleged to have uprooted by the accused persons. They have also not been able to produce any document in support of their claim that they have been cultivating the land on „bhaga‟ basis. Except oral evidence that they have been cultivating the land, no evidence has come on record to specify the particulars of the land. The most startling fact emanating from the evidence of three witnesses is that although P.W.1 claims that he belongs to Scheduled Caste, however, no document or any supporting evidence to that effect has been produced. It is a settled principle of law that in order to prosecute an accused in the Special Statute for the offence under SC & ST Act, it is obligatory on the part of the prosecution to prove that the victim belongs to the reserve category for which it is required to obtain caste certificate from the authorized Page 9 of 12 signatory. It is also obligatory on the part of the prosecution to establish that the victim belongs to either SC or ST and unless unambiguous evidence in that regard is brought on record, the offence under any provision of the Special Statute will not attract. The Hon‟ble Madhya Pradesh High Court (now Chhattishgarh) in the matter of Kartik Ram and another vrs. State of Madhya Pradesh (CRA No. 1495 of 1999), has held as under:- “No caste certificate is collected during investigation or produced before the trial court. As per the requirement of Section 2C of the Act, the prosecution has to prove that victim belongs to reserved category for which it is required to obtain caste certificate from the authorized signatory. In absence of such caste certificate and in absence of material evidence that the complainant and his family members belong to Scheduled Tribe community, simply by narrating that they belong to Binjhwar caste it would not automatically prove that the complainant and their family members falls under the Scheduled Tribe category. For this also in view of this Court it affect the case of the prosecution adversely.” 16. In absence of any documentary evidence like caste certificate or any other certificate or any other independent evidence adduced by the complainant to establish that the complainant belongs to Scheduled Caste, the very basis of the charge framed under the Special statute goes. Therefore, the only inevitable conclusion that could be drawn from the Page 10 of 12 evidence available on record is that no offence under the Special Statute is made out. 17. Similarly, in so far as the offence under Section 427 of I.P.C. is concerned, the prosecution needs to prove that the mischief so caused by the accused persons lead to the loss and damaged caused to the victim amounts to be fifty rupees or upwards. In the instant case, since the complainant fails to prove on record as to whether he was cultivating the land or not, the loss or damage allegedly caused them is also lacking substantive prove. Hence, the offence under Section 427 of I.P.C. is also not attracted. 18. Mr. Behera, learned counsel for the appellants has also vehemently pointed out that the complaint itself was not maintainable in view of the fact that it is not supported by any affidavit, as required under law. This position of law has already been settled by the Hon‟ble Supreme Court in the case of Priyanka Srivastava and another vs. State of Uttar Pradesh and others, reported in (2015) 6 SCC 287. Page 11 of 12 19. I need not venture into this aspect, in view of the findings recorded by the learned trial Court. Since the evidence adduced by the complainant is insufficient to substantiate the charge, even without going into the objection raised by Mr. Behera, learned counsel for the appellants, I am inclined to set aside the judgment and sentence passed by the learned trial court. Accordingly, the impugned judgment and order dated 22.09.1999 passed by the learned Special Judge under S.C. & S.T. (P.A) Act, Khurda in T.R. Case No. 78 of 1998 (arising out of ICC No.7 of 1998) is set aside and the appellants are acquitted of all the charges. The bail bond furnished stands discharged. 20. 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 12 of 12