Orissa High Court
Ajay Kumar Singh vs State Of Orissa on 19 August, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.315 of 1995
(In the matter of an application under Section 374 and 382 of the
Criminal Procedure Code, 1973)
Ajay Kumar Singh ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Mr. D.P. Dhal, Senior Advocate
For the Respondent : Mr. Rajbhusan Dash , ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 05.08.2025 :: Date of Judgment: 19.08.2025
S.S. Mishra, J. The present Criminal Appeal, is filed by the appellant
under Sections 374 and 382 of the Cr. P.C., assailing the judgment and
order dated 10.11.1995 passed by the learned District and Sessions
Judge, Phulbani in S.T. Case No. 32 of 1995, whereby the learned trial
Court has convicted the accused-appellant U/s.3(1)(x) of the Scheduled
Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989(Herein
after referred to as "Act of 1989" for brevity) sentencing him to undergo
imprisonment for six months and pay a fine of Rs. 300/- in default to
undergo further imprisonment of one month.
Facts of the Case
2. The prosecution case, briefly stated, is that the accused-appellant
Ajay Singh, an Advocate of Phulbani Bar belonging to the
"KSHATRIYA" caste, was in litigating terms with the informant, Smt.
Puspanjali Behera, who belonged to the "PANA" caste, in a court case.
On the morning of 06.02.1994 at around 7:30 A.M., while the informant
was proceeding to the Circuit House for certain official work, the
accused with some of his associates arrived near Post Office Chhak of
Phulbani Town and subjected her to harassment on the public road. The
informant raised an alarm, attracting many persons to the spot,
whereupon the accused-appellant fled. However, while leaving, he
threatened the informant that if her witnesses deposed against him in
court, he would take her life and drive her out of her native place.
Feeling humiliated by these acts, the informant instructed one Biswanath
Behera to scribe a report, which was lodged at Phulbani P.S. Upon
completion of investigation, only the accused-appellant was charge-
sheeted under Sections 3(1)(x) and 3(1)(xv) of the Act of 1989 and
Section 506 of the IPC. On his stance of denial, he was put to trial.
Analysis of evidence by the Trial Court
3. To substantiate the case against the accused-appellant, six
witnesses were examined. P.W.1 was the scribe of the F.I.R., P.W.2 is
the mother of the informant, P.W.3 was the S.D.P.O., Baliguda, P.W.4
was a passer-by at the place of occurrence, and P.Ws.5 and 6 were the
investigating officers. It is pertinent to mention that the informant
expired during the course of the trial.
4. The learned trial Court analysed the evidence on record in detail
and returned the following findings:-
"In view of the evidence of earlier litigations subjudiced against
accused Ajaya Singh initiated by the informant, it cannot be
assumed that accused Ajaya Singh came to Pushannjali Behera
near the post office chhak, while she was on her way to circuit
house, as friend or as a well wisher of Pushanjali Behera or that
there was an occurrence in between Pushpanjali Behera and
accused Ajaya Singh at the post office chhak can not be
disbelieved.
3. On the facts this case, the evidence of P.W.2 that Ajaya Singh
came in a scooter accompanied by two of his associates and
abused Pushpanjali Pehera can believed P.W.2 has no one to
grind against the accused has proved the presence of the deceased-
informant and P.W.2 in the circuit house, in the morning hour of
the day of occurrence and further proved that they complained
before Smt. Danti Nanda about the incidence supposed on their
way to circuit house is a feature of the evidence of P.W.2 and has
also reflected the conduct of decesed-informant and P.W.2 in the
total appreciaion of the case. There some truthfulness in the
evidence of P.W.2 since a lady who have taken for the harassment
inflicted on her, on a public road and has lodged F.I.R. against the
accused presumably felt insulted and humiliated."(Unclear)
Judgement of Conviction by the Trial Court
5. By appreciating and analyzing the evidence brought on record by
the prosecution and taking into consideration the defence plea eventually
the learned trial Court recorded the guilt of the appellant by concluding
as under:
"In the net, accused Ajay Singh is found guilty u/s. 3(1)(x) of
Scheduled castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 and is convicted thereunder. But, however, accused is
found not guilty of offence u/s. 506 I.P.C. and Section 3(1)(xv) of
Scheduled Caste and Scheduled Tribes( Prevention of Atrocities)
Act, 1989 and is acquitted there of by virtue of operation of Section
235(1) Cr.P.C." (Unclear)
6. Aggrieved by the aforementioned judgment of conviction and
order of sentence passed by the learned District and Sessions Judge,
Phulbani, the present Appeal has been preferred by the appellant.
8. Heard Mr. D.P. Dhal, learned Senior Counsel appearing for the
appellant and Mr. Rajbhusan Dash, learned Additional Standing Counsel
for the State.
Submissions on behalf of the Appellant
9. Mr. Dhal, learned Senior Counsel for the appellant, while
addressing the Court on the merits of the matter, invited attention to a
series of factors which, according to him, demolish the prosecution case
and entitle the accused-appellant to an acquittal. The first and foremost
point stressed was that the informant herself had passed away during the
pendency of the trial and, consequently, her testimony could not be
recorded. In the absence of her evidence, the substratum of the
prosecution's case is considerably weakened, as the direct account of the
alleged occurrence from the principal witness is unavailable. Learned
Senior Counsel submitted that this circumstance alone creates a
substantial gap in the chain of evidence and, therefore, operates to the
benefit of the accused-appellant by raising a reasonable doubt regarding
the veracity of the allegations.
10. Proceeding further, learned Senior Counsel contended that the trial
court had primarily placed reliance upon the deposition of P.W.2, the
mother of the informant. However, on a plain reading of her testimony, it
becomes evident that she has not stated a single word to the effect that
the accused-appellant had abused her daughter in the name of caste or
had uttered any caste-related insult. In other words, there is a complete
absence of any direct assertion from P.W.2 connecting the accused-
appellant with the commission of an offence under the relevant
provisions that is Section 3(1)(x) of the Act of 1989. For the
convenience, the exact deposition of P.W.2 is reproduced herein:
1. Pushpanjali is my daughter. Pushpanjali died a year back.
About one and half years back is the occurrence date. On the
occurrence day at 7 AM myself and my daughter Pushpanjali
Behera were going to circuit house to meet the Commissioner for
Women Smt. Shanti Nanda. On the main road at the frontage of
General Post Office the accused, Ajaya Singh came in a scooter
accompanied by two of his associates. Accused abused
Pushpanjali and threatened Pushpanjali that he, whosoever will
give evidence against him he, will set fire to him. I and Pushpanjali
felt humiliated on the abuse of accused in that road. So
threatening, the accused left the place with his associates.
2. Myself and Pushpanjali belong to "PANA " caste the accused
belong to KSHETRIYA caste, Thereafter we went to the Circuit
House to meet the Commissioner for Women Smt. Shanti Nanda,
and appraised her the incidence of 7.00 Α.Μ.
3. At the Circuit House On the instruction Pushpanjali Behera,
P.W. 1 scribed Ext. 1. On being read over in by P.W. 1,
Pushpanjali Behera put her signature Ext. 1/1 is the signature of
Pushpanjali Behera. Already marked Ext. 1 is that scribed report."
Learned Senior Counsel further emphasised that the finding of the
trial court regarding the caste status of the informant rests solely upon
oral testimony. There is no documentary evidence, such as a caste
certificate or any other legally acceptable proof, to establish beyond
doubt that the informant belonged to a Scheduled Caste. In the absence
of such proof, the essential ingredient for attracting the provisions of the
Act of 1989 remains unsubstantiated.
11. It was further submitted that P.W.4, who was projected by the
prosecution as an eye-witness to the incident and who, as a passerby,
was allegedly present at the place of occurrence, has completely turned
hostile during trial. Similarly, P.W.1, the scribe of the F.I.R., has also
turned hostile. Learned Senior Counsel submitted that the hostility of
these witnesses, coupled with the non-examination of the informant and
the absence of credible proof of her caste status, renders the prosecution
case highly doubtful and unsafe to sustain a conviction.
Precedent Analysis
11. On the entire conspectus of the case it will be apt to place reliance
upon the judgement of the Hon'ble Madhya Pradesh High Court in
Prahalad and another v. The State of M.P.1, wherein the court by
placing reliance on one of its earlier judgement held thus:
"6. In Pillu Alias Pyarelal versus State of Madhya Pradesh ILR
2012 MP 1309, it is held that if prosecution fails to prove the caste
of victim by any cogent and reliable document issued by the
competent authority then mere oral deposition of witness would
not deem to be proved."
Further, it would also be apt to rely on the judgement of the same
Hon'ble Court in Chalaniya Dheemar v. State of M.P.2 , wherein it was
held thus:
"10. On a close scrutiny of the evidence of aforesaid witnesses, it
is clearly established that accused caught the hand of complainant
Hiriya (PW-1) in the Nala with a view to outrage her modesty
while she was going to fetch greenery. However, on scanning the
evidence of all the prosecution witnesses, I find that there is
absolutely no legal evidence to establish that complainant Hiriya
belonged to scheduled caste or scheduled tribe. No certificate of
any competent authority to that effect was produced or proved
before the Court. Neither Hiriya (PW-1) nor any other witness
including head constable Devideen (PW-4) deposed in the Court
that she belonged to scheduled caste. It is true that in the first
information report Ex.P/1 and Ex.P/2 the name of complainant has
been mentioned as Hiriya Ahirwar, but merely from that it cannot
be held that she belonged to scheduled caste in the absence of
legal evidence in the Court. First Information Report cannot be
treated as a part of substantive evidence. It can be used only for
corroboration or contradiction of its maker. It is also important to
note that police registered the offence under section 354 of Indian
I.L.R.(2012)M.P. 189
Penal Code only and not under the provisions of SC & ST
(Prevention of Atrocities) Act. Trial Court recorded the finding
that it was established that accused outraged modesty of the
complainant who belonged to scheduled caste but it appears to
have been based on no legal and substantive evidence."
A careful reading of both the aforesaid judgments reveals that the
principle laid down is consistent and unequivocal, in prosecutions under
the Act of 1989, the caste status of the victim is an essential ingredient of
all the offence under the Act and must be proved by cogent and reliable
evidence, preferably through a certificate issued by the competent
authority. Mere oral assertions, unaccompanied by any such
documentary proof, cannot be treated as sufficient to establish this
foundational fact. In both Prahalad (supra) and Chalaniya
Dheemar(supra), the Hon'ble Madhya Pradesh High Court held that in
the absence of such proof, the charge under the provisions of the Act
cannot be sustained, even if other aspects of the prosecution case are
otherwise proved. This legal position, when applied to the present case,
clearly fortifies the defence contention that the prosecution has failed to
discharge its burden of proving the caste status of the informant beyond
reasonable doubt.
Observations
12. On an overall assessment of the materials available on record, this
Court finds that the prosecution has failed to establish, through any
cogent and reliable documentary evidence issued by a competent
authority, that the informant belonged to a Scheduled Caste. The only
evidence on this point is the oral assertion of P.W.2, which, in view of
the settled legal position as laid down by the Hon'ble Madhya Pradesh
High Court in Prahalad (supra) and Chalaniya Dheemar (supra), is
wholly insufficient to prove this essential ingredient of the offence under
Section 3(1)(x) of the Act of 1989. The situation is further compounded
by the fact that the informant could not be examined owing to her death
during the pendency of the trial, and two key witnesses, that is P.W.1,
the scribe of the F.I.R., and P.W.4, the alleged eye-witness who turned
hostile. In these circumstances, the prosecution case suffers from serious
infirmities and lacks the degree of certainty required for sustaining a
conviction under the provisions of the Act of 1989.
Conclusion
13. In the considered view of this Court, the learned trial Court erred
in convicting the appellant under Section 3(1)(x) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the absence
of legally admissible and substantive evidence to prove the caste status
of the informant beyond reasonable doubt. The benefit of such doubt
must necessarily enure to the accused. Accordingly, the judgment of
conviction and the order of sentence dated 10.11.1995 passed by the
learned District and Sessions Judge, Phulbani, are hereby set aside. The
appellant, is acquitted of the charge under Section 3(1)(x) of the Act of
1989. Bail bonds, if any furnished, stands discharged.
14. Hence, the Criminal Appeal is allowed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 19th of August 2025/ Subhasis Mohanty
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 20-Aug-2025 18:18:02
