This Is An Appeal Under Section ... vs State Of Odisha
2023 Latest Caselaw 12602 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                         C.R.A No.147 of 1995
     This is an Appeal under Section 374(2) of the Cr.P.C., which has been
     preferred by the Appellant against the judgment of conviction and order
     of sentence passed on dated 29th April 1995 in G.R. Case No. 71 of 1992
     by the learned Special Judge-cum-Sessions Judge, Balangir, wherein the
     Appellant was convicted for the offence under Section 3(1)(xi) of the
     S.C. & S.T. (Prevention of Atrocities) Act, 1989 and was sentenced to
     undergo R.I. for two years and to pay fine of Rs.500/- in default to
     undergo R.I. for six months for the offence under Section 3(1)(xi) of the
     S.C. & S.T. (Prevention of Atrocities) Act, 1989.


          Sibananda @ Subanath Bhoi              ....         Appellant
                                     -versus-
          State of Odisha                        ....         Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

For Appellant - Mr.D.P.Dhal, Sr. Advocate.

                                           Mr.A.Ray, Advocate
                  For Respondent     -     Mr.T.K.Praharaj,
                                           Standing Counsel.
                  CORAM:
                  MR. JUSTICE A.C.BEHERA

Date of Hearing :25.09.2023 :: Date of Judgment : 13.10.2023

A.C. Behera, J. This Criminal Appeal has been preferred by the Appellant against the judgment of conviction and order of sentence passed against him (Appellant) by the learned Special Judge-cum-Sessions Judge, Balangir on 29th April 1995 in G.R. Case No. 71 of 1992 arising out of

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Tureikela P.S. Case No. 18 of 1992, wherein, he (Appellant) was convicted U/s 3(1)(xi) of the S.C. & S.T. (P.A.) Act, 1989 and was sentenced to undergo R.I. for two years and to pay a fine of Rs.500/- in default to undergo R.I. for six months.

2. The Appellant was the sole accused before the learned Trial Court below in G.R. Case No.71 of 1992.

3. The projected case of the prosecution during trial against the accused was that, on 14.04.1992, at about 11 a.m., while the daughter of the informant, who was reading in class-VI was returning from the school, on her way near Halanbhata, the accused came on a cycle and asked her to sit on his cycle, when she (victim) denied, the accused got down from the cycle and caught hold her hands and dragged her, for which, she (victim) fell down, then the accused rode on her. While she (victim) started running after rising from the ground, the accused again tried to catch her, for which, she (victim) again fell down on the ground, then accused sat on her belly. Therefore, she (victim) raised hullah, for which, the accused fled away from there leaving the victim. Thereafter, the victim came to her house in crying condition and narrated the incident before her mother, as her father was absent from the house. Then, after the return of her father in the evening, she (victim) narrated the incident before her father. So, her father lodged written F.I.R. on dated 18.04.1992 vide Ext.3 before the O.I.C., Tureikela Police Station alleging the aforesaid allegations against the accused.

Basing upon such F.I.R., vide Ext.3, the OIC Tureikela P.S. Sri S.K. Mishra registered Tureikela P.S. Case No.18 of 1992 against the accused and he (O.I.C) himself took up the investigation of the case.

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4. During investigation, he (I.O.) examined the informant and victim, visited the spot, prepared the spot map vide Ext.7, examined other witnesses, seized the wearing apparels of the victim through seizure list vide Ext.4 and also seized the school admission register of the victim from her school through seizure list vide Ext.5 and released the same in the zima of the headmaster. Then he (I.O) arrested the accused and forwarded him to the Court and sent the victim through requisition for her medical examination. Accordingly, she (victim) was medically examined, but due to the transfer of the I.O. (S.K. Mishra), he handed over the charge of the investigation to his successor Mr. Amulya Kumar Das. Then the next I.O. (Mr. A.K. Das) submitted charge-sheet against the accused under Section 3(1)(xi) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 after completing the investigation.

Accordingly, the accused was facing trial before the Court of learned Special Judge-cum-Sessions Judge, Balangir in G.R. Case No. 71 of 1992 having been charged under Section 3(1)(xi) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989.

5. The plea of the defence was one of complete denial and false implication of the accused.

6. In order to substantiate the aforesaid charge/offence under Section 3(1)(xi) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 against the accused, prosecution had examined altogether 6 (six) witnesses, but whereas in support of the above plea of the defence, the defence had examined only one witness as D.W.1.

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7. Out of the six witnesses of the prosecution, P.W.1 was the victim herself, P.W.2 was the mother of the victim, P.W.4 was the father of the victim, P.W.3 was a witness to the seizure, P.W.6 was the first Investigating Officer and P.W.5 was the last Investigating Officer of the case, who had submitted charge-sheet against the accused after completing the investigation.

8. After conclusion of hearing and on perusal of the materials and evidence available in the Record, the learned Trial Court below found the accused guilty for the offence under Section 3(1)(xi) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 and convicted him thereunder and passed an order of sentence against him as stated above vide judgment dated 29.04.2015 in G.R. Case No. 71 of 1992.

9. On being aggrieved with the above judgment of conviction and order of sentence passed on dated 29.04.1995 in G.R. Case No.71 of 1992 by the learned Special Judge-cum-Sessions Judge, Balangir against the accused under Section 3(1)(xi) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989, he (accused) challenged the same by preferring this Appeal being the Appellant after taking several grounds in his Appeal memo.

10. I have already heard from Mr. Dhal, learned senior counsel for the Appellant and as well as from Mr. Praharaj, learned Standing Counsel for the State.

11. It appears from the impugned judgment that, the learned Trial Court below has convicted the accused for the offence under Section 3(1)(xi) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 basing upon the evidence of three witnesses i.e. victim, her mother, and her

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father, those were examined before the learned Trial Court below as P.Ws.1, 2 and 4 respectively.

12. One of the prime ingredient of Section 3 of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 is that, the victim must have become a member of Schedule Caste or Schedule Tribe and the accused must not have become a member of scheduled caste or scheduled tribe.

So, in order to penalise an accused under Section 3 of the S.C. & S.T. (Prevention of Atrocities) Act, 1989, it should be the duty of the prosecution to bring material into the record either through oral or through documentary evidence that, the victim is a member of S.C. or S.T. and the accused is not a member of S.C. or S.T. Unless and until, it is established/proved on behalf of the prosecution by bringing material into the record that, the victim is a member of S.C. or S.T. and the accused is not a member of S.C. or S.T., no conviction under Section 3(1)(xi) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 can be made against an accused.

On that aspect, the propositions of law has already been clarified in the ratio of the following decisions:-

(i) 2000 (1) C.C.R. (Kerala) 375- Kuriakose -Vrs.- State of Kerala-S.C. & S.T. (P.A.) Act, 1989-Section 3(1) (xi)-

To prove charge, it is imperative on prosecution to prove that, accused is not a member of S.C. or S.T.- In case of failure to prove the same, no offence under the Act is made out.

(ii) 2008(2) Crimes page-168 (Bombay)- Prakash -vrs.-

State of Maharastra & another-S.C. & S.T.(P.A.) Act 1989- Section 3(1)(x)- paragraphs 5 & 8-

Where complaint for offence U/s 3(1)(x) of S.C. & S.T. (PA) Act, did not disclose caste of offender and

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disclosed only caste of complainant, it was liable to be quashed.

(iii) 2011 (2) Crimes 496 (MP)-Krishna alias Kresa V.

State of M.P. (paragraphs10 to 13)-S.C. & S.T. (P.A.) Act, 1989- S.C.-3(1)(x)-

Appeal against conviction- Prosecution through produced evidence that, complainant belong to S.C. but no evidence was produced at all that, accused did not belong to S.C.- conviction under S.C. and S.T. could not be sustained, conviction was liable to be set aside.

Here in this case at hand, neither it has been stated by any witnesses of the including P.Ws. 1, 2 and 4 nor any document has been proved on behalf of the prosecution during trial to show that, the accused is not a member of S.C. or S.T. Therefore, it is held that, prosecution has become failure to establish the above prime ingredient (essential) of Section-3(1)(xi) of S.C. & S.T. (P.A.) Act, 1989 against the appellant/accused.

13. That apart, according to the prosecution, the alleged incident had occurred on 14.04.1992, by that time Section-3 of the S.T. & S.T. (P.A.) Act, 1989 was not amended. Because, Section-3 of the S.C. & S.T. (P.A.) Act has been amended by the Act-1 of 2016 w.e.f. 26.01.2016. So, this case relating to the alleged incident for the alleged offence U/s 3(1)(xi) S.C. & S.T.(PA) Act is governed by the unamended provisions of the Act, which was prior to 26.01.2016, particularly, which was existing on the alleged date of incident i.e. on 14.04.1992.

14. It is the clarified propositions of law that, in order to penalize an accused for an offence U/s 3(1)(xi) of the S.C. & S.T. (P.A.) Act, 1989, which was in force on the alleged date of incident i.e. on 14.04.1992, it should be the duty of the prosecution to prove that, the accused not

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being a member of S.C. or S.T. has committed an offence U/s 3(1)(xi) of S.C. & S.T. (P.A.) Act, 1989 against the victim (who is a member of S.C. or S.T.) only for the reason (only on the ground) that, she (victim) was the member of S.C. or S.T.

15. On that aspect, the propositions of law has already been clarified in the ratio of the following decisions:-

(i) 2010 (3) Crimes 864 (Chhatisgarh)- Manharan

-versus- State of M.P.- S.C. & S.T. (PA) Act, 1989-

In order to attract the provisions of the Atrocities Act, prosecution is required to prove that, the offence has been committed upon the member of S.C. or S.T. on the ground of the member of such caste.

(ii) 2015(4) Crimes 370 (Rajsthan)- Yogendra Singh @ Bablu -versus- State of Rajasthan- S.C. & S.T. (P.A.) Act, 1989-

Section 3(1)(xii) & 3(2) (v)- In order to attract the provisions of the Act, the sine qua is that, the victim should be a person, who belongs to a S.C. or S.T. and that, the offence under the IPC is committed against him/her on the basis that, such person belongs to a S.C. or S.T.

16. Here in this case at hand, none of the witnesses of the prosecution including the victim, her parents and as well as the I.Os. i.e. P.Ws. i.e. 1, 2, 4, 5 and 6 has uttered a single word in their respective evidence that, the accused is not a person of S.C. or S.T. and he (accused) not being a person of the S.C. or S.T., has committed an offence U/s 3 of the S.C. & S.T. (P.A.) Act, 1989 against the victim (P.W.1) only for the reason (only on the ground) that, she (victim P.W.1) belongs to S.C. community.

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17. The F.I.R., vide Ext.3 has been lodged by the father of the victim (P.W.4) on dated 18.04.1992 i.e. four days after the alleged incident. In his evidence, he (P.W.4) has not stated anything about the cause of delay in lodging the F.I.R i.e. after four days of the alleged incident.

18. Accordingly, four days delay in lodging the F.I.R. vide Ext.3 by the informant has remained totally unexplained on behalf of the prosecution.

19. As per the discussions and observations made above, when prosecution has not brought any material into the record during trial to establish that, the accused was not a member of S.C. or S.T. and that the alleged offence was committed by the accused on the victim only on the ground that, she (victim) belongs to the member of S.C. and when four days delay in lodging the F.I.R. has remained totally unexplained on behalf of the prosecution, then at this juncture, by applying to the principles of law enunciated in the ratio of the decisions referred to supra to this case at hand as discussed above, it is held that, prosecution has not become able to establish the offence under Section 3 (1)(xi) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 against the accused beyond all the reasonable doubt. For which, the impugned judgment of conviction and order of sentence passed by the learned Trial Court below against the accused cannot be sustainable under law.

So, there is justification under law for making interference with the impugned judgment of conviction and order of sentence passed by the learned Trial Court below against the accused through this Appeal filed by him (accused). Therefore, there is merit in the Appeal of the Appellant, the same must succeed.

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Hence, the Appeal filed by the Appellant (accused) is allowed. The impugned judgment of conviction and order of sentence passed on dated 29.04.1995 in G.R. Case No. 71 of 1992 under Section 3(1)(xi) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 against the accused(Appellant) by the learned Special Judge-cum-Sessions Judge, Balangir are hereby set aside. Accordingly, he (accused/Appellant- Sibananda @ Subanath Bhoi) is acquitted from the charge/offence under Section 3(1)(xi) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 on the ground of benefit doubt. Therefore, he (Appellant/accused) is directed to be set at liberty forthwith after being discharged from the bail bonds.

20. The Appeal is disposed of finally.

(A.C. Behera), Judge.

Orissa High Court, Cuttack.

13th October, 2023//Utkalika Nayak// Junior Stenographer

Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 17-Oct-2023 10:51:26

C.R.A. No.147 of 1995