Amulya Mallick vs Nanda Bhola & Others
2023 Latest Caselaw 15114 Ori

Orissa High Court

Amulya Mallick vs Nanda Bhola & Others on 28 November, 2023

Bench: S.K. Sahoo, Chittaranjan Dash

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                           CRLA NO.323 OF 2017

              Amulya Mallick                       ....      Appellant

                                  Mr. Soura Chandra Mohapatra
                                  Advocate

                                        -versus-

              Nanda Bhola & Others                 ....   Respondents

                                  Mr. Arupananda Das
                                  Addl. Government Advocate

                                  CORAM:
                             JUSTICE S.K. SAHOO
                        JUSTICE CHITTARANJAN DASH


                                    ORDER

Order No.                         28.11.2023

   07.           This    matter    is    taken     up   through   Hybrid

arrangement (video conferencing/physical mode).

Heard learned counsel for the respective parties. This CRLA has been filed by the appellant, Amulya Mallick, who is the mother of the deceased Sukanta Mallick, challenging the judgment and order dated 23.02.2017 passed by the learned Special Judge, Kendrapara in S.T. Case No.30 of 2007 in acquitting the respondents of the charges under sections 452/294/354/384/302 of the Indian Penal Code and section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter 'SC & ST (PoA) Act') read with section 34 of the Indian Penal Code.

The prosecution case, in short, is that the // 2 //

deceased Sukanta Mallick was having love affair with Lotani Bhola of his village and they had decided to marry but the brothers of Lotani intending to get her married elsewhere were searching for bridegroom and the engagement ceremony of Lotani was fixed on 19.06.2005. On 18.06.2005 at 9 p.m. in the night, Lotani called Sukanta to her neighbour's house but Sukanta came back to his house after refusing to marry her. When the brothers of Lotani did not find her in their house, all of a sudden, the accused persons came to the house of the cousin of Sukanta, namely, Aruna Mallick and assaulted him and took away his father and two uncles to their house by fastening them and assaulted them in front of their house threatening, by using filthy languages, not to release them until Sukanta is caught. All the accused persons had also trespassed into the house of Aruna Mallick and asked the female persons as to where their sister was concealed and saying so, they dragged and assaulted them, as a result of which the family members of Aruna Mallick ran away but Aruna Mallick remained with Sukanta Mallick. When Aruna Mallick ran away on the assault of the accused persons, Sukanta was taken by the accused persons on 18.06.2005 at 11 p.m. in the night. On the next day morning, the dead body of Sukanta was found hanging from a tree by means of a rope with his feet touching the ground. On 19.06.2005 at about 8.30

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a.m. in the morning, Aruna Mallick lodged a first information report against the accused persons before the Officer-In-Charge, Mahakalapada Police Station, who registered Mahakalapada P.S. Case No.89 of 2005 and took up investigation.

On completion of the investigation, charge-sheet has been submitted and during the course of trial, the prosecution examined eleven witnesses.

After assessing the evidence on record, the learned trial Court came to hold that so far as the offence under section 302 of the Indian Penal Code is concerned, the doctor (P.W.7), who conducted the post-mortem examination, has stated in cross- examination that the ligature mark on the neck of the deceased has been caused due to suicidal hanging, which itself disputes the assertion of the prosecution that the deceased was murdered and therefore, the accused persons cannot be held liable for the offence under section 302 of the Indian Penal Code.

Learned trial Court, after discussing the evidence of P.Ws.1 to 6 and 9, held that on a threadbare analysis of the oral evidence of the prosecution witnesses, only a suspicion can be raised that the accused persons killed the deceased but the medical evidence of the doctor (P.W.7) indicates the possibility of suicidal death and therefore, the charge under section 302 of the Indian Penal Code cannot be sustained.

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Learned trial Court then discussed the evidence of the prosecution for the offence under section 294 of the Indian Penal Code and held that the prosecution case never revealed about the occurrence taking place in public place nor any outsider is examined in this case to say that any annoyance was caused to him and even if the evidence of abusing the informant's family is taken to be true, no offence under section 294 of the Indian Penal Code can be sustained.

Learned trial Court also discussed the evidence of material witnesses, P.Ws.1 to 6 & 9 relating to the offence under section 354 of the Indian Penal Code and it was held that P.W.1 has not whispered any word about outraging the modesty of any member of his family nor he had seen the accused persons using criminal force on any woman. P.W.2 has not stated a single word in his evidence about the accused persons outraging the modesty of any female and similar is the evidence of P.W.3 and P.W.4 and ultimately, on the careful and meticulous analysis of the evidence, the learned trial Court has come to the conclusion that there is hardly any evidence about the opposite parties outraging the modesty of any woman and therefore, it was held that the prosecution has not been able to establish that the accused persons outraged modesty of the females.

Learned trial Court then discussed the charge under section 384 of the Indian Penal Code at

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paragraph-16 of the judgment and came to hold that there is hardly any evidence on record that the accused persons induced the members of the informant party by putting in fear of any injury to deliver any property or valuable security or anything signed or sealed, which may be converted into valuable security and though it is alleged by the prosecution that the accused persons dishonestly induced Dibakar Mallick, Prahalad Mallick and Pramod Mallick to deliver a singed document, neither Dibakar Mallick nor Pramod Mallick has been examined in this case. The prosecution, therefore, cannot be said to have established that the accused persons put such persons in fear of injury and dishonestly induced them to deliver a signed document.

Learned trial court then discussed the charge under section 3(1)(x) of the SC & ST (PoA) Act and held that though P.Ws.1 to 6 supported the prosecution case, but they hardly stated about the accused persons insulting or intimidating the members of the informant party in a place within public view. The essence of the charge under section 3(1)(x) of the SC & ST (PoA) Act lies in the insult or intimidation of a member either belonging SC or ST Community within the public view and the term, 'public view' denotes to mean that public must view the person being insulted. Recently, the Hon'ble Supreme Court in the case of Ramesh Chandra Vaishya -Vrs.- State of Uttar

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Pradesh & Anr. reported in (2023) SCC OnLine SC 668 held that mere presence of complainant/victims, sans the attendance of any member from the public, will not be sufficient to constitute 'public view' within the meaning of section 3(1)(x) of the SC & ST (PoA) Act. The Court further reiterated that use of abusive words is not enough when ill intention to humiliate a member from the SC/ST community is not apparent and accordingly, held the following:

17. The first question that calls for an answer is whether it was at a place within public view that the appellant hurled caste related abuses at the complainant with an intent to insult or intimidate with an intent to humiliate him. From the charge-sheet dated 21st January, 2016 filed by the I.O., it appears that the prosecution would seek to rely on the evidence of three witnesses to drive home the charge against the appellant of committing offences under sections 323 and 504, IPC and 3(1)(x), SC/ST Act. These three witnesses are none other than the complainant, his wife and their son. Neither the first F.I.R.

nor the charge-sheet refers to the presence of a fifth individual (a member of the public) at the place of occurrence (apart from the appellant, the complainant, his wife and their son). Since the utterances, if any,

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made by the appellant were not "in any place within public view", the basic ingredient for attracting section 3(1)(x) of the SC/ST Act was missing/absent. We, therefore, hold that at the relevant point of time of the incident (of hurling of caste related abuse at the complainant by the appellant), no member of the public was present.

18. That apart, assuming arguendo that the appellant had hurled caste related abuses at the complainant with a view to insult or humiliate him, the same does not advance the case of the complainant any further to bring it within the ambit of section 3(1)(x) of the SC/ST Act. We have noted from the first F.I.R. as well as the charge-sheet that the same makes no reference to the utterances of the appellant during the course of verbal altercation or to the caste to which the complainant belonged, except for the allegation/observation that caste-related abuses were hurled. The legislative intent seems to be clear that every insult or intimidation for humiliation to a person would not amount to an offence under section 3(1)(x) of the SC/ST Act unless, of course, such insult or intimidation is targeted at the victim because of he being a member of a particular Scheduled Caste or Tribe. If one calls another an

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idiot (bewaqoof) or a fool (murkh) or a thief (chor) in any place within public view, this would obviously constitute an act intended to insult or humiliate by user of abusive or offensive language. Even if the same be directed generally to a person, who happens to be a Scheduled Caste or Tribe, per se, it may not be sufficient to attract section 3(1)(x) unless such words are laced with casteist remarks. Since section 18 of the SC/ST Act bars invocation of the court's jurisdiction under section 438, Cr. P.C. and having regard to the overriding effect of the SC/ST Act over other laws, it is desirable that before an accused is subjected to a trial for alleged commission of offence under section 3(1)(x), the utterances made by him in any place within public view are outlined, if not in the F.I.R. (which is not required to be an encyclopaedia of all facts and events), but at least in the charge- sheet (which is prepared based either on statements of witnesses recorded in course of investigation or otherwise) so as to enable the court to ascertain whether the charge sheet makes out a case of an offence under the SC/ST Act having been committed for forming a proper opinion in the conspectus of the situation before it, prior to taking cognisance of the offence.

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In the case in hand, since except P.Ws.1 to 6, no outsider has stated to have seen the occurrence, it was held that the prosecution cannot be said to have established such charge.

Learned trial Court has also discussed the evidence on record relating to the charge under section 452 of the Indian Penal Code and held that P.W.1 has failed to state that the accused persons entered into the house of P.W.6 and P.W.6 has not whispered about the accused persons taking away his father and two uncles and it is, therefore, unsafe to rely on the evidence of P.W.6 to fasten the guilt of the accused persons for house trespass, as the evidence available on record are not consistent.

After carefully going through the impugned judgment and hearing learned counsel for the petitioner, we are of the view that the learned trial Court has discussed all the material evidence on record and the view taken by the learned trial Court cannot be said to be perverse and we do not find any illegality in any of the findings arrived at by the learned trial Court.

In view of the settled position of law, as held by the Hon'ble Supreme Court in the case of Babu -Vrs.- State of Uttar Pradesh reported in AIR 1983 SC 308 that even if two views were possible, the High Court should not interfere with the conclusions arrived

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at by the Sessions Court unless the conclusions were not possible. If the finding reached by the trial Judge cannot be said to be unreasonable, the appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The appellate Court should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible of the evidence on record, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by it.

In view of the foregoing discussions, we are satisfied that the conclusions arrived at by the learned trial Court were fully justified and we find no reason to interfere with the impugned judgment and accordingly, the Criminal Appeal stands dismissed.

(S.K. Sahoo) Judge

(Chittaranjan Dash)