The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.251 of 1994 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Nilamani Ghair ……. Appellant -Versus- State of Odisha ……. Respondent For the Appellant : Ms. Subhashree Sen, Amicus Curiae For the Respondent : Mr. Ashok Kumar Apat, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 15.07.2025 :: Date of Judgment: 31.07.2025 S.S. Mishra, J. The sole appellant in the present case has assailed the judgment and order dated 18.06.1994 passed by the learned Sessions Judge, Sambalpur in T.R. Case No.27 of 1993, whereby the appellant was found guilty of the charges under Section 354 of I.P.C. read with Section 3(iii) of the SC & ST (PoA) Act and has been sentenced to undergo R.I. for six months for the offence under Section 354 of I.P.C. and R.I. for six months along with fine of Rs.1,000/-, in default to undergo R.I. for further period of three months for the offence under Section 3(iii) of the SC & ST (PoA) Act . 2. The present appeal is pending since 1994. When the matter was taken up for hearing, none has appeared on behalf of the appellant.
Legal Reasoning
Therefore, this Court requested Ms. Subhashree Sen, learned counsel, who is present in Court to assist the Court as Amicus Curiae. She has readily accepted the same and after obtaining the entire record assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Ms. Sen, learned Amicus Curiae. 3. Heard Ms. Subhashree Sen, learned Amicus Curiae for the appellant and Mr. Ashok Kumar Apat, learned Additional Government Advocate for the State. 4. The prosecution case in terse and brief is that on 05.06.1993 early morning at about 5.00 A.M., the accused-appellant has used criminal force against the victim (P.W.1) at Kusumberna Jungle near village Dakara intending to outrage her modesty. She belongs to Ganda caste Page 2 of 12 and the appellant being Gouda has caused offence under SC & ST (PoA) Act. The investigation was carried out and charge-sheet was filed for the offence under Sections 354/506 of I.P.C. read with Section 3(iii) of SC & ST (PoA) Act and charges were also framed for the same offence. Since the appellant took a stance of denial, he was put to trial. 5. The prosecution in order to bring home charges examined as many as six witnesses. Out of them, P.W.1 was the victim whereas P.W.2 was the mother of the victim, P.W.3 was the father of the victim. P.W.4 appears to be a chance witness whereas P.W.5 is the Ward Member of the village and P.W.6 is the I.O. of the case. 6. The learned trial Court after analysing the judgment arrived at the following findings:- “13. Having held as above, it shall now be proper to conduct a scrutiny regarding the offence committed by the accused. Very precisely it can be stated that offence u/s. 506 I.P.C. has not been brought home against the accused by the prosecution. The charge on the above score is that the accused intimidated P.W.2. But P.W.2 during her evidence has not whispered a single word about such intimidation being meted out to her by the accused. She for the first time met the accused while she was present near the Bari of P.W.4. Neither P.W.2 nor P.W.4 has Page 3 of 12 disclosed about such intimidation. Therefore, the charge u/s. 506 I.P.C. is bound to fail. 14. Now coming to the charge u/s. 354 I.P.C. and Sec. 3(iii) of the Act, there appears distinguishing features between the two offences. Sec. 354 I.P.C. recognizes assault or use of criminal force to women with intent to outrage her modesty whereas Sec. 3(iii) of the Act, irrespective of gender, recognizes individual member of Scheduled Caste and Scheduled Tribe against whom the offence is committed. To put it in other words, Sec. 354 I.P.C. takes note of outraging of modesty of a woman whereas Sec. 3 (iii) of the Act takes note of illegal commission against members of Scheduled Caste or Scheduled Tribe which is derogatory to human dignity. We cannot expect from the prosecution to highlight the culpable mental state of the accused either to outrage the modesty of P.W.1 or that the illegal commission of the accused is derogatory to her dignity. These are points to be reasonably inferred from the proved facts and circumstances of the case. P.W.1, a lady of 32 years old, was collecting Mahula fruits when the accused dragged her wearing saree (Panata) and also lifted her left leg. The above commission would unmistakably lead to a conclusion that the accused tried to outrage the modesty of P.W.1 which is apparently derogatory to prudent human dignity. There appears no legal impediment to arrive at a final verdict that the accused has committed both the offences u/s. 354 I.P.C. and Sec. 3(iii) of the Act. 15. For the aforesaid reasons, it is held that the prosecution has not been able to bring home the Page 4 of 12 charge u/s. 506 I.P.C. against the accused and he is acquitted of the said charge u/s. 248(1) Cr.P.C. The prosecution has been able to bring home the charges u/s. 354 I.P.C. and Sec. 3(iii) of the SC & ST (Prevention of Atrocities) Act against the accused beyond all reasonable doubt and is found guilty thereunder u/s. 248(2) Cr.P.C.” 7. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Sessions Judge, Sambalpur, the present appeal has been preferred by the appellant. 8. Ms. Sen, learned Amicus Curiae has contended that in the present case, no offence under Section 3(iii) of the SC & ST (PoA) Act is made out on the basis of the evidence brought on record. To attract Section 3(iii) of the SC & ST (PoA) Act, the prosecution needs to prove that the offender has forcibly removed the cloth of the victim with an intention to derogate his/her human dignity. According to the prosecution case, the appellant forcibly dragged the victim (P.W.1) by holding her saree (Panata) while she was collecting mahua fruits from Kusumberna jungle. Thereafter, the victim stood up and the accused-appellant lifted her left leg, as a result of which, she fell down on the ground. She raised hue and cry and soon thereafter, the accused fled away. If this evidence even if Page 5 of 12 believed, the same would not attract the offence under Section 3(iii) of the SC & ST (PoA) Act as the appellant has neither removed the clothes from the person of the victim or deroped her rather the allegation is only dragging the saree (panata). Apart from that, Ms. Sen, learned Amicus Curiae contended that in the present case, the place of occurrence itself is doubtful by plain reading of the evidence brought on record by the prosecution. Whether the incident has happened at Kusumberna jungle or Mahulaberna jungle are not clearly coming out on record. Therefore, she submits that the case of the appellant is directly covered by one of the judgment of the Hon’ble Supreme Court in the case of Hutu Ansari @Futu Ansar & Ors. Vrs. The State of Jharkhand. She has relied upon paragraph-9 of the said judgment which reads as under:- “9. There is no clarity as to the place of occurrence, whether it was at the residential building in the disputed land or at the house of PW-3. In this context, we once again look at the complaint filed, which spoke of the house trespass by breaking the lock of the house of the complainant. However none of the witnesses spoke of breaking a lock or trespass into the house and on the contrary, claimed that the occurrence occurred in a field; obviously to make out a case of the insult levelled and abuses thrown, to be within public view. As we noticed, there is Page 6 of 12 nothing to indicate that there was anybody present in the vicinity of the alleged scene of occurrence, other than family members of the complainant. When PW-1 categorically negatived the presence of any other person except himself, his wife, brother and his nephew; at the scene of occurrence, it cannot be said to have occurred in public view; thus, absolving the accused of any offence under clause (r) or (s) of Section 3 of the SC & ST Act. Insofar as clause (f) of Section 3(1) of the Act, there is no allegation in the complaint that the complainant and her family were forcefully evicted from the land.” 9. Ms. Sen, learned Amicus Curiae for the appellant has taken me to the evidence of all the witnesses to point out the apparent contradiction in the version of the witnesses. 10. On the contrary, Mr. Apat, learned Additional Government Advocate for the State has contended that the judgment of the learned trial Court is justified and is culmination of appropriate appreciation of evidence. He has also read out some part of the impugned judgment to justify the same, particularly, he has emphasized paragraphs-7 and 8 of the judgment and submitted that the defence version has been well appreciated by the learned trial Court and has been rightly discarded. Page 7 of 12 11. I have carefully gone through the evidence on record and taken into conclusion the submission advanced by the parties. The F.I.R. (Ext.1) was lodged by the victim (P.W.1). She in her F.I.R. had stated that the incident had taken place at Kusumberna jungle. She had narrated the incident in quite detail and had stated that her mother (P.W.2) was nearby when the incident had happened and she reached the spot immediately and both of them narrated the incident to one Bhagaban Das. However, when she appeared in the witness box, she has stated in the examination-in-chief that the incident had taken place at “Mahulaberna jungle”. Rest part of the incident as has been narrated by her in the F.I.R. remained unaltered in her statement. In the cross- examination, the defence has very categorically asked the victim (P.W.1) regarding the place of incident. She was not clear about the place of incident rather in that regard paragraph-6 of her cross-examination assumes importance, which reads as under:- “6. It is not a fact that I did not state before the I.O. that the incident took place at Mahaula berna jungle. The accused merely dragged my Saree (Panata). The accused has not touched my body. It is not a fact that I did not state before the I.O. that I Page 8 of 12 fell down on the ground. Nothing was reduced to writing in the village Panchayat. I cannot say who was sent by the Panch members to call the accused.” Similarly, P.W.2, the mother of the victim has also stated that the incident had taken place at Mahulaberna jungle. In her cross- examination, she has deposed that “Kusum Berna and Mahula Berna jungles adjoin each other. The two trees belonging to Naria Jhankar are not situated at Mahalinga Berna, Kusum Berna or Mahul Berna.” 12. When the I.O. (P.W.6) was posed the said question, in paragraphs- 8 and 9 of his evidence, he has stated as under:- “8.P.W.1 during her examination by me had not stated to have gone to Mahula Berna jungle on the date of occurrence. My investigation revealed that Bundhen Dungri is situated adjoining Kusum Berna. I have not visited any place locally known as Mahul Berna jungle. The distance of Kusum Berna from Bundhen Dungri would be about 50 yards. P.W.1 did not state before me to have fallen down on the ground during the occurrence. 9. P.W.2-Sukanti Bag stated before me that her daughter Chhaila went to Kusum Berna to collect Mahua fruits at the time of occurrence.” This being the nature of evidence in regard to the place of occurrence, the accused-appellant was put the same. In his statement Page 9 of 12 recorded under Section 313 Cr.P.C. while answering question No.3, he has stated as under:- “Q. No.3- It further transpired that on 5.6.93 at 6. A.M., P.W.1 had been to Mahula Berna to collect Mahua fruits and that Kusum Berna and Mahula Berna are situated adjoining one another. What I have you got to say? Ans:- Mahula Berna and Kusum Berna are nearby. Whether Chhaila had gone to those places are not known to me.” 13. Reading of the evidence of all the witnesses and the statement of the accused recorded under Section 313 Cr.P.C. makes it abundantly clear that Kusumberna and Mahulaberna are two different places, where the occurrence had taken place is not clear on record. The victim herself is contradictory in her statement as well as in the F.I.R. In the light of the aforementioned evidence, if the defence version is taken into consideration, it sounds probable that the appellant might have been falsely implicated in the case. P.W.1 (victim) in her evidence has stated that “it is not a fact that Mahula tree underneath which I was collecting fruits belongs to the accused and that we are in strained terms with each other concerning that tree since a pretty long time and that the accused Page 10 of 12 forbade me from collecting Mahua fruits at the date and time of occurrence and as such there was exchange of hot words between us and that I have foisted this false case against him.” It appears on record that the appellant has inimical relationship with the father of the victim. Therefore, the appellant took a stance that for the enmity, the false case has been foisted upon him. 14. Taking into consideration the entire evidence borne on record, the conviction recorded by the learned trial Court against the appellant for the offence under Section 354 of I.P.C. does not inspire confidence as the prosecution story in regard to the place of occurrence and the fact that the appellant has inimical relationship with the family of the victim is eminently undoubted. Hence, by extending the benefit of doubt, the appellant is acquitted from all the charges under Section 354 of I.P.C. read with Section 3(iii) of the SC & ST (PoA) Act. The bail bond stands discharged. 15. Accordingly, the CRA is allowed. 16. This Court acknowledges the effective and meaningful assistance rendered by Ms. Subhashree Sen, learned Amicus Curiae in this case. Page 11 of 12 Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 31stof July 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 01-Aug-2025 20:23:51 Page 12 of 12