The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA NO.174 of 2001 (An appeal U/S. 374(2) of the Code of Criminal Procedure, 1973 against the judgment passed by Shri S.K. Pattnaik, Special Judge under SC & ST (PoA) Act, Khurda corresponding to T.R. Case No.10 of 1999, arising out of Mancheswar PS Case No. 149 (2) dated 06.11.1998 of the Court of Special Judge under SC & ST (P.A) Act, Khurda) Kishore Chandra Sahoo …. Appellant -versus- State of Odisha …. Respondent For Appellant : Mr. B. Tripathy, Advocate For Respondent : Mr. T.K. Praharaj, SC CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING &JUDGMENT:13.08.2024(ORAL) G. Satapathy, J. 1. This appeal is directed against the judgment dated 31.08.2001 passed by learned Special Judge under SC & ST (PoA) Act, Khurda in T.R. Case No.10 of 1999 convicting the appellant for commission CRLA No.174 of 2001 Page 1 of 11 offence punishable under Section 354 of Indian Penal Code, 1860 (In short, the “IPC) and sentencing him to pay a fine of Rs. 500/- in default whereof, to undergo simple imprisonment for fifteen days with further direction to realize the fine amount from the salary of the appellant. 2. Prosecution case in brief is on 03.11.1998 at about 10.45 AM, while PW1 was sweeping the official room occupied by the appellant-convict who was then working as Assistant Director, SFSL, Anthropology Department, Rasulgarh, the convict asked PW 1 to clean the backside of Almirah and while she was cleaning the backside of the Almirah, the convict caught hold of her from back side, squeezed her breast and while attempting to lift her Saree, PW1 managed to wriggle out from his clutches.
Legal Reasoning
On this incident, PW1 lodged an FIR vide Ext.1 on 06.11.1998 and accordingly Mancheswar PS Case No. 149 of 1998 was registered and the matter was investigated into resulting in submission of charge CRLA No.174 of 2001 Page 2 of 11 against the convict who pleaded not guilty to the charge and thereby, resulting in the trial of the present case for commission of offence punishable U/S. 354 of IPC r/w Sec. 3(1)(xi) of the Scheduled Caste and Scheduled (Prevention of Atrocities) Act, 1989 [In short the “SC & ST(PoA) Act”]. 3. In support of its case, the prosecution examined altogether 11(eleven) witnesses vide PWs.1 to 11; proved 3 (three) documents under Exts.1 to 3 as against the oral evidence of two witnesses DW1 and DW2 by the defence. The plea of the convict in the course of trial was denial simplicitor and false implication. However, the convict took additionally plea in his statement U/S. 313 Cr.P.C that since he had not issued wage certificate to PW1, she had falsely implicated him in this case. Of the witnesses examined by the prosecution, PW1 is the victim herself, PW2 is her Mother, PW3 and 4 are two class-IV staff of SFSL, PW5,6,7 and 8 are the other unimportant witnesses like CRLA No.174 of 2001 Page 3 of 11 seizure witness and the employees of SFSL and PW10 and 11 are the two Investigating Officers. 4. After appreciating the evidence on record upon hearing the learned counsel for the parties, the learned trial Court while acquitting the appellant of the charge U/S. 3(1)(xi) of the SC & ST(PoA) Act convicted him for offence U/S. 354 of IPC and sentenced him to the punishment indicated in the first paragraph. Being aggrieved with his conviction and sentence, the appellant has preferred this appeal. 5.
Legal Reasoning
Mr. Brahmananda Tripathy, learned counsel appearing for the appellant, however, very effectively tries to convince the Court by demonstrating the loopholes in the prosecution case by inviting the attention of the Court to the fact of delay in lodging of FIR as well as lapses in investigation. Further, Mr. Tripathy also submits that the case of the victim is inherently improbable as the evidence on record never establishes the guilt of the convict, but ignoring such facts, the learned trial Court has convicted and CRLA No.174 of 2001 Page 4 of 11 sentenced the appellant. Mr. Tripathy also alternatively submits that since the appellant is 78 years old and he has faced all the consequences of the criminal case by not getting his retrial benefits, a lenient view may kindly be taken and the appellant be only permitted to deposit the fine amount which has already been awarded by the learned trial Court as a sentence. Accordingly, Mr. Tripathy requests this Court to pass appropriate order in accordance with law. 6. On the contrary, Mr. T.K. Praharaj, learned Standing Counsel, however, by taking this Court through the evidence of the victim, her mother and two class-IV peons of SFSL very emphatically submits that the guilt of the appellant has not been merely established, but also it has been established beyond all reasonable doubt and thereby, the conviction of the appellant for offence U/S. 354 of IPC does not call for any interference. Accordingly, Mr. Praharaj, prays to dismiss the appeal. CRLA No.174 of 2001 Page 5 of 11 7. After having considered the rival submissions upon perusal of record, there appears no dispute about the allegation against the appellant for committing the crime, but fact remains that as to whether the victim has specifically stated about the act by which the guilt of the appellant can be considered to have been proved for offence U/S. 354 of IPC. A bare look to the evidence of the victim would go to reveal that the accused-appellant had not only attempted to caught hold of the victim from the back side, but also had squeezed her breast which is definitely incriminating the appellant for the offence. Further to test the veracity of the prosecution case, this Court briefly surveys the evidence of other witnesses which reveals from the record that PWs 2,3 and 4 although appear to post occurrence witnesses, but fact remains that their evidence not only connect the accused with the crime, but also is found coherent and can be considered relevant U/S. 6 of the Evidence Act which provides the doctrine of res gestae and the same CRLA No.174 of 2001 Page 6 of 11 prescribes that the facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. 8. In this case, the allegation on record discloses that when the convict called the victim to sweep his room, he intentionally asked PW4 who was a peon then in his establishment to bring tea and when PW4 was examined in the Court, he has reiterated such fact in his evidence and thereby, corroborating the allegation to that extent. Similarly, PW3 being another peon who has stated to have seen PW1 crying after the occurrence in the Verandah of the Office has also testified in the Court that on the relevant date, he found PW1 crying in the Verandah of the Office and when he asked PW1, she replied that she was crying because the appellant called her and he (appellant) caught hold her from backside, but she managed to escape. Similarly, the evidence of mother of the victim CRLA No.174 of 2001 Page 7 of 11 is also in tandem with that of the evidence of PW1 and nothing has been elicited from the mouth of these witnesses to discredit their evidence. However, the learned counsel for the appellant has sought to assail the evidence of these witnesses, more particularly the evidence of the victim PW1 on the ground that there is delay in lodging of FIR, but in this case, the FIR was lodged on 06.11.1998 and the same was forwarded to the IIC by the Director of SFSL, Odisha, Bhubaneswar on 06.11.1998, but it appears from the evidence on record that the victim had reported the matter to the Director on 05.11.1998 and in a matter like this, some amount of delay is quite natural because in Indian society, the tradition is that no lady would come out openly exposing her chastity or narrating the allegation that touches her privacy. It is of course argued and tried by the learned counsel for the appellant to demolish the prosecution case on the ground that there is loopholes in the investigation since the investigation has been conducted by an Officer below the rank of CRLA No.174 of 2001 Page 8 of 11 DSP, but fact remains that the offence under SC & ST (PoA) Act has to be investigated by a DSP and the same having not done so in this case, the entire investigation would not vitiate enuring to the benefit of the accused. True it is that, the allegation in the FIR discloses commission of offence U/S. 3(1)(xi) of the SC & ST(PoA) Act and accordingly, charge sheet was also placed for that offence, but admittedly, the investigation has not been done by a DSP who is authorized under law to investigate the matter under Atrocities Act. Further, the prosecution has not been able to obtain the caste of the victim and thereby, the learned trial Court has rightly given benefit of doubt to the appellant for offence U/S. 3(1)(xi) of the SC & ST(PoA) Act, however, merely because the accused was acquitted for offence U/S. 3(1)(xi) of the SC & ST(PoA) Act would not render the entire investigation done by the Investigating Officer vitiated. Since there is ample evidence on record to hold the appellant guilty of the offence U/S. 354 of IPC, it would be travesty of justice, CRLA No.174 of 2001 Page 9 of 11 if the investigation is considered to be vitiated merely on technical ground like this. 9. On coming back to address the alternative submission of learned counsel for the appellant, it appears that the occurrence was of the year 1998 and the judgment was passed in this case in the year 2001, but at that time, the convict was aged about 52 years and thereby, in the meanwhile near about 23 years have elapsed. Therefore, the contention of the appellant that he is aged about 78 years at this time cannot be ignored and he must have suffered the consequence of the crime committed by him. Further, it is also appearing from the record that the convict was also forwarded to the Court at the cost of his reputation, but his act deserves punishment and the learned trial Court of course dealt leniently while awarding punishment to the convict, however, no appeal has been filed by the State challenging the sentence of the appellant and this Court, therefore, at this stage after so many years of the occurrence does CRLA No.174 of 2001 Page 10 of 11 not want to turn the table to go for imposing the punishment of imprisonment as prescribed under the Act. Be that as it may, the punishment as has been awarded to the convict-appellant would meet the ends of justice since in the meanwhile, substantial time has elapsed and much water has flown. In absence of any appeal by the State, this Court does not consider it proper to enhance the punishment of the appellant. 10. In the result, the appeal stands dismissed on contest, but in the circumstance, there is no order as to costs and the impugned judgment of conviction and sentence as awarded to the convict by the learned trial Court are hereby confirmed. (G. Satapathy) Judge Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 16-Aug-2024 16:20:46 Orissa High Court, Cuttack, Dated the 13th day of August, 2024/Priyajit CRLA No.174 of 2001 Page 11 of 11