The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.310 of 1994 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Jayasen Goudo ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. B. Mishra, Advocate For the Respondent : Mrs. Shiva Mohanty Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 14.10.2025 : Date of Judgment: 28.10.2025 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment of conviction and order of sentence dated 25.08.1994 passed by the learned Special Judge-cum- Sessions Judge, Koraput, Jeypore in Sessions Case No.203 of 1993 convicting the appellant under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and under Section 323 of the Indian Penal Code and sentenced him to undergo S.I. for a period of six months and to pay a fine of Rs.100/- (Rupees one hundred) only, in default, to undergo S.I. for a further period of 7 days (seven days) and is also sentenced to pay a fine of Rs.100/- (Rupees one hundred) only for the offence under Section 323 of the IPC, in default, to undergo S.I. for a period of 7 days (seven days). 2. The prosecution case regarding the incident happened on 16.01.1993, the F.I.R. was registered by P.W.1, the informant against the present appellant, inter alia, alleging that at about 4 P.M., when the informant/P.W.1, who was the Sarpanch of Pipalpader Grama Panchayat was coming by his bicycle at Laxmipur New Bus Stand, the appellant abused him in filthy language saying “Magiyan Sala Sarpanch, Toro ma Maipaku Geinbi, Tu ala Panchayat ra kama damo sabu mate na dei mo nama re Abhijog Patra deichu” and dragged him down and also dealt fist blows. The appellant had also threatened by saying to kill him by bringing gundas from Berhampur side. Thereafter, the informant rushed to the Police Station and reported the matter. 3. The investigation of the case was conducted by P.W.5 and the charge sheet was laid down against the appellant for the alleged commission of the offence punishable under Section 3(1)(x) of the Page 2 of 14 Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act (for short “the SC & ST (PoA) Act”) and under Section 323 of the Indian Penal Code (for short “the IPC”) for having causing voluntary hurt to the informant. 4. The appellant took a stance of complete denial of the occurrence. According to the appellant, on 16.01.1993, when the informant was returning from the weekly market at Laxmipur seeing him, he saluted him and asked him as to why the informant gave an application to the B.D.O. making false allegation against him. When there was discussion between the informant and himself, the son of the informant appeared at the spot and gave him a punch, as a result, he fell upon the informant and thereafter, both the informant and his son pressed him and dealt him fist blows etc. The son of the informant injured him (accused-appellant)on his throat with his nails. 5. To sustain the said defence, the appellant also examined one Saroj Gouda as D.W.1 and Dibakar Borada as D.W.2. 6. The prosecution, in order to prove its case, has examined six witnesses. P.W.1 was the informant, who testified the entire occurrence. Page 3 of 14 P.W.2 was the doctor, who examined the informant, P.W.1. P.W.3 is claimed to be one of the eye witnesses to the occurrence. P.W.4 too was also an independent witness, who did not support the prosecution. P.W.5 was the Investigating Officer and P.W.6 too was also a witness to the occurrence. 7. The entire case of the prosecution is based upon the testimonies of
Legal Reasoning
P.Ws.1, 3 and 6. The learned trial Court, by relying upon the testimonies of the aforementioned three witnesses and the evidence of P.W.2, the doctor, has arrived at the following conclusion: “11. On a careful perusal of the evidence adduced on behalf of both the parties, I find that the accused in order to get rid of this case has filed a complaint case about five months after the alleged date of occurrence, where also these two D.Ws. and the hostile witness P.W.3 have been examined on his behalf. It does not stand to reason as to why these witnesses did not disclose about the occurrence as told by them in the court before the Investigating Officer. 12. P.W.5 the Investigating Officer has specifically deposed that the accused has not submitted any written report before him alleging against P.W.1 and his son. The accused has also not produced any copy of his written report alleged to have been submitted before the Investigating Officer on the very date of the occurrence. P.W.2, the Doctor has deposed that on 16.1.93 he being Gynocologist of Upgraded Primary Health Centre Laxmipur on police requisition he examined P.W.1 and found: i) one abrasion of 1 1/2 c.m. x 1/2 on x1/2 on the base of the right index finger. Page 4 of 14 ii) he was complaining pain above the right chest. He has proved his injury report Ext.2 and according to him the injury can be caused if the injured caught hold of by another and one can feel pain on his chest by falling down. The doctor has not seen any mark of injury on the chest of the injured and according to him the injury is very minor. 13. On a careful scrutiny of the evidence I am convinced that the accused out of grudge on P.W.1 who has admittedly submitted an application before the B.D.O. alleging against the accused for non-supply of controlled commodities as he was a Government Control dealer to the customers abused him and assaulted him and also I find that P.W.1 is a member of Scheduled Caste and the accused is not a member of Scheduled Caste or Scheduled Tribe. The evidence of P.W.1 coupled with the evidence of P.Ws. 3 and 6 and the evidence of the Doctor-P.W.2 and his injury report. I find that the accused abused P.W.1 and threatened him and thereby insulted and intimidated him with intend to humiliate P.W.1 who is a member of scheduled caste in the New Bus Stand of Laxmipur within the public view and also assaulted him there and voluntarily caused hurt him.” 8. Being aggrieved by the aforementioned findings leading to the conviction of the appellant for the offence punishable under Section 3(1)(x) of the SC & ST (PoA) Act and Section 323 of the IPC and sentenced on that count, the appellant has preferred the present appeal. 9.
Legal Reasoning
Heard Mr. B. Mishra, learned counsel appearing for the appellant and Mrs. Shiva Mohanty, learned Additional Standing Counsel appearing for the Respondent-State. Page 5 of 14 10. Mr. Mishra, learned counsel for the appellant has contended that the learned trial Court has grossly erred in appreciating the evidence produced by the prosecution. 11. The learned trial Court has also completely ignored the evidence led by the appellant in his defence. He contended that the informant P.W.1 in his cross-examination has admitted that he has obtained the Caste Certificate after his examination in the Court. He exhibited the same in his reexamination. P.W.1 also stated that Rana by caste are holding surname Khora. This deposition clearly indicates that the certificate was procured particularly for the purpose of this case. Therefore, the learned trial Court ought not to have relied upon the certificate particularly when the same was brought on record in the midst of the deposition by affording P.W.1 an opportunity to exhibit the document on recall. 12. Mr. Mishra, learned counsel for the appellant vehemently contended that when P.W.5 gave a requisition to the Medical Officer for examination of P.W.1, he has categorically mentioned the cause of injury stating that P.W.1 and the accused appellant were fighting with each Page 6 of 14 other at the alleged place of occurrence resulting injury on P.W.1. This evidence of P.W.5, the Investigating Officer stands corroborated with the stand taken by the appellant that there was a hot argument taken place between him and P.W.1 and the son of P.W.1 came and started assaulting him. Mr. Mishra further contended that the Investigating Officer has not conducted the investigation in a fair manner which is apparent from his own statement. Since there was a scuffle between P.W.1 and his son in one side and the appellant on the other side, it was incumbent upon the Investigating Officer to send all of them for medical examination. However, he has chosen to give requisition to the Medical Officer for examination of P.W.1 alone. 13. In contrast, Mrs. Mohanty, learned State counsel by relying upon the testimonies of P.Ws.1, 2, 3 and 6, has stated that the evidence adduced by the prosecution through these witnesses are consistent. All the witnesses have sustained extensive cross-examination, but the defence could not elucidate anything which could support his case. Therefore, she justified the impugned order and submitted that the appeal deserves to be dismissed. Page 7 of 14 14. I have given a careful consideration to the entire evidence on record as well as the contentions raised by the learned counsel for the respective parties. 15. The first point emanating from the record which needs to be analysed is regarding the alleged offence committed by the appellant under Section 3(1)(x) of the SC & ST (PoA) Act. In that regard, the contents of the F.I.R. assumes importance as on the basis of the same, the criminal law was set into motion against the appellant. In the F.I.R. authored by the P.W.1 himself immediately after the alleged incident, he has mentioned that he was abused by the appellant saying “Magiyan Sala Sarpanch, Toro ma Maipaku Geinbi, Tu ala Panchayat ra kama damo sabu mate na dei mo nama re Abhijog Patra deichu”. Perusal of the contents of the F.I.R. makes it abundantly clear that there is no allegation made by the informant, P.W.1 against the appellant regarding any abuse made by him or any aspersion or insinuation made by the appellant against P.W.1 taking the name of his caste to insult him, as he belongs to the lower caste. Page 8 of 14 16. The said informant when deposed before the Court as P.W.1 has substantially improvised his version and stated that during the occurrence, the appellant has abused him stating “Magya sala Domb Sarapanch”. The version of P.W.1 as narrated in the F.I.R. and in his deposition is substantially different. In the cross-examination, the said witness, while answering to the suggestion, has also stated that before the Investigating Officer, he has not stated that the appellant has scolded him taking his caste name. Further, the witness has admitted the fact that the appellant has filed a case against him and he is on bail in that case. It cannot be ruled out that P.W.1 out of vengeance has tried to falsely implicate the appellant. It is relevant to note that the informant was examined in the Court as P.W.1 on 02.02.1994. On that day, he had not produced the Caste Certificate. However, he was again recalled by the prosecution on 18.02.1994. On re-examination, he has stated as under: “I have brought Ext.3 yesterday from the Tahasildar. After the date of my evidence in the court in this case I applied for my caste certificate and eight days thereafter the certificate was issued to me. The R.I. enquired as per the direction of the Tahasildar and thereafter the certificate was issued. It is not a fact that the signature in Ext.3 is not genuine and forged and that no enquiry has been made on my petition. I am Hindu by religion. I have not adopted Christianity.” Page 9 of 14 17. It is clear from the testimony of the informant that initially, the appellant has not made any comment regarding the caste of P.W.1. However, it appears the appellant has improvised his version in the witness box and in order to further substantiate the same, he obtained the Caste Certificate and placed it before the Court. 18. The version of the other two occurrence witnesses, namely, P.W.3 and P.W.6 in this regard is also relevant. P.W.3 in his testimony has stated that the appellant abused P.W.1 saying “Keere Maghaya Shala Sarapanch, Too mo nare Dealership katiba pain, Kahiniki Officer Mananku lekhuchu, Toro Maa Pilanku Ghainbe.” 19. P.W.6 in his testimony has stated that the appellant has abused P.W.1 saying “Are Magiyan Domb sala Sarapanch, To Ma Maipaku Nebi, Tu mo namare B.D.O. nku Darakhasta kahinki delu.” 20. In regard to the allegation for the offence under Section 3(1)(x) of the SC & ST (PoA) Act, four different versions are emanating from the evidence. Firstly, in the F.I.R. lodged by P.W.1, there was no whisper Page 10 of 14 regarding the abuse being made by the appellant by taking the caste name. Secondly, the improvised version deposed by P.W.1 in the Court, which was further improvised by P.W.3 and P.W.6. Surprisingly, when the statement of the accused appellant was recorded under Section 313 of the Cr.P.C., none of those abused alleged to have been hurled by the appellant against P.W.1 was put to the accused. Relevant would be to reproduce the following question that was put to the accused appellant in the statement recorded under Section 313 of the Cr. P.C. “Q.5. They further state that you caught hold of hands of P.W.1 and abused him saying “Magiyan Shala, Domb Sarpanch” etc. What have you got to say ?” 21. The abuses alleged to have been hurled by the accused appellant as narrated by P.Ws.3 and 6 were not specifically put to the accused while recording his statement under Section 313 of the Cr. P.C. 22. Lastly, when the accused was asked, what he wants to say regarding the case, he stated that on 16.01.1993, when he had gone to the weekly market, he saw P.W.1 and he respectfully saluted him and asked as to why he has made false allegation and given a complaint to the B.D.O. despite he has been maintaining good relationship with him. Page 11 of 14 While he was discussing the same with P.W.1, the son of P.W.1 came from the back and pushed him. He fell upon P.W.1. Immediately thereafter, he was assaulted by P.W.1 and his son. 23. This being the nature of evidence, the utterances made by the appellant as narrated by P.Ws.1, 3 and 6 being not specifically pointed out towards the caste of P.W.1 and the alleged abuse hurled by P.W.1 was not subsequently put to him while recording the statement under Section 313 of the Cr. P.C., those incriminating evidence cannot be used against the appellant. The principle of law that the incriminating evidences which are not put to the accused in the statement recorded under Section 313 of the Cr. P.C. cannot be used against the accused, has been settled. In that regard, the judgment in the case of Balaram Bag vs. State of Odisha, reported in (2020) 129 Cut Lt 225 and the judgment of this Court dated 31.07.2025 passed in CRA No.242 of 1995 in the case of Sahadev Karmi vs. State of Odisha is worth-reliance. 24. In so far as the conviction recorded by the learned trial Court for the offence punishable under Section 323 of the IPC is concerned, the Page 12 of 14 same is also not sustainable on the face of the quality of evidence brought on record by the prosecution. The trustworthiness of the evidence of P.Ws.1, 3 and 6 is doubtful as has been discussed in the preceding paragraph. Although the evidence of P.W.2, the doctor shows that the victim has sustained two abrasions which are simple in nature, but the fact remains that the prosecution narratives deposed by P.Ws.1, 3 and 6 is belied by the evidence of P.W.4 and also the specific stand taken by the appellant in his statement recorded under Section 313 of the Cr. P.C. The learned trial Court, while dealing with the aforementioned evidence, has not appreciated the circumstance leading to the confrontation that has taken place between the complainant, P.W.1 and the accused. Therefore, regard being had to the quality of the evidence adduced by the prosecution, this Court is of the considered view that the prosecution has also failed to prove its case beyond all reasonable doubts regarding the offence punishable under Section 323 of the IPC as well. Page 13 of 14 25. Taking into consideration the afore-discussed evidence in its entirety, I am of the considered view that the prosecution could not successfully prove its case beyond all reasonable doubt regarding the offence alleged against the appellant. 26. Hence, I am completely in disagreement with the conclusion drawn by the learned trial Court. Accordingly, the impugned judgment dated 25.08.1994 passed by the learned Special Judge-cum- Sessions Judge, Koraput, Jeypore in Sessions Case No.203 of 1993 is set-aside and the appellant is acquitted of the charge under Section 3(1)(x) of the SC & ST (PoA) Act and Section 323 of the IPC. The Bail Bond stands discharged. 27.
Decision
In the result, the Criminal Appeal stands allowed and disposed of. The High Court of Orissa, Cuttack. Dated the 28the Day of October, 2025/ Subhasis Mohanty (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 28-Oct-2025 17:15:58 Page 14 of 14