Orissa High Court
Bignesh Kumar Mahanta & Ors vs State Of Orissa on 19 August, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No. 234 of 1998
(In the matter of an application under Section 374 of the Criminal
Procedure Code, 1973)
Bignesh Kumar Mahanta & Ors. ....... Appellants
-Versus-
State of Orissa ....... Respondent
For the Appellants : Mr. J. Katikia, Advocate
For the Respondent : Mr. Raj Bhusan Dash, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 14.08.2025 :: Date of Judgment: 19.08.2025
S.S. Mishra, J. The present Criminal Appeal, is filed by the appellants
under Sections 374 of the Cr. P.C., assailing the judgment of conviction
and order of sentence dated 21.08.1998 passed by the learned Special
Court, Mayurbhanj, Baripada in T.C. No. 7 of 1994 arising out of G.R.
Case No. 6 of 1993, whereby the learned trial Court has convicted all the
accused-appellants under Section 3(1) (x) of the Scheduled Castes and
Scheduled Tribe (Prevention of Atrocities) Act and sentenced them to
undergo S.I. for six months each; and convicted the appellant nos. 2, 7, 8
and 9 under Section 323 of IPC and directed to pay a fine of Rs.1,000/-
each, in default, to undergo S.I. for fifteen days.
2. The prosecution case, in nutshell, is that Geli Kalandi (P.W.1) and
Laxmi Kalandi (P.W.9) of Masarda village had gone to collect faggots to
Makunda river bank on 30.12.1992 afternoon and it is alleged that they
were misbehaved by the accused Bhaskar Chandra Mohanta (Appellant
No.9) and Dibakar Mohanta (Appellant No.8). Thereafter, the matter was
reported before the Ward Member, Rupai Marandi (P.W.4), subsequent
to which a meeting was convened at village Masarda on 31.12.1992 at
3.00 P.M. Both the above named accused persons confessed their guilt in
the meeting. When the meeting was in progress, the accused persons,
namely, Bignesh Kumar Mohanta (Appellant No.1), Bhaskar Chandra
Mohanta (Appellant No.9), Dibakar Mohanta (Appellant No.8), Sarat
Chandra Mohanta (Appellant No.7), Barendra Nath Mohanta (Appellant
No.2), Umakanta Mohanta (Appellant No.3), Ratikanta Mohanta
(Appellant No.4), Laxmidhar Mohanta (Appellant No.6) and Purna
Chandra Mohanta (Appellant No.5) defied the meeting announcing to
beat the 'harijan' people and drove them out of the village. They also
assaulted P.Ws. 2, 7, 8 and one Bhagirathi Kalandi and pelted stones.
Thereafter, the matter was reported by the Ward Member, Rupai
Marandi at Chitra Out Post on 01.01.1993.
On the basis of the aforesaid allegations, the police registered the
case and investigated into the matter and thereafter filed charge sheet
under Sections 323 and 294 of IPC and under Section 3(1) (x) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
3. Heard Mr. J. Katikia, learned counsel for the appellant and Mr.
Raj Bhusan Dash, learned Additional Standing Counsel for the State.
4. The prosecution in order to bring home the charges examined as
many as eleven witnesses, whereas the defence took a stand of complete
denial of the charges and claimed trial.
5. The trial court by strongly relying upon the evidences of P.Ws.1,
2, 6, 7 and 9 recorded the following findings:-
"8. Rupai Marandi (P.W.4) has admitted in cross examination
that he convened a meeting regarding the assault on Gelhi
Kalandi and Laxmi Kalandi. He also admitted to have stated
before the police that accused Dibakar and Bhaskar confessed
their guilt in the meeting. The version of this witness finds
sufficient corroboration from the independent witness P.W.5-
Suresh Chandra Mohanta. He being a member of non-schedule
caste of the same village, has spoken about the meeting on
31.12.92. He has also implicated the accused persons to have
assaulted after the confession was made by accused Dibakar and
Bhaskar. The confession part by accused Dibakar and Bhaskar
has also been brought out in cross examination (para-5) by the
learned counsel for the accused persons. The other witnesses i.e.
P.Ws. 1, 2, 6, 7, 8 and 9 belonging to the scheduled caste
community have clearly stated regarding the meeting following
the misbehavior by the accused Dibakar and Bhaskar to the girls
on the aforesaid date and also attributing assaults to the accused
persons intentionally insulting them in public view by saying
"Doma". Apart from the above, P.W.3 being the doctor has
examined the injured Baikuntha Kalandi, Gorachand Kalandi
and Shanti Kalandi on 1.1.93. Therefore, the contention of the
learned counsel for the accused persons that there was no
occurrence at all cannot be accepted.
9. The occurrence near river Makunda was only witnessed
by both the girls Gelhi Kalandi (P.W.1) and Laxmi Kalandi
(P.W.9). Because of the inherent quality with the ladies, P.W.1
has tried to improve the allegation by saying that both the
accused persons caught hold of them and tried to molest them
whereafter they escaped and she reported the matter to her
husband followed by a meeting on the next day, but she has not
stated so before the Investigating Officer. Adverting to the
evidence of Laxmi Kalandi (P.W.9), it is found that she has not
stated anywhere that they were being caught by accused Bhaskar
and Dibakar, but she has asserted that they spoke bad
languages. The evidence of P.W.5 reveals that the girls told in
the meeting specifically saying that both the accused Dibakar
and Bhaskar told them "JE AMANAKAR CHHUA PUA HEI
NAHIN, DINE MUN IJATA NEBI GUTE DINARE CHHUA
KARI DEBI" This version also does not find place in her
statement before the Police. So, what were the words used to the
girls is not there in the record. Therefore, the ingredients of
Section 294 I.P.C. is absent and the accused persons are
acquitted from the charge U/s 294 I.P.C., but the fact remains
that accused Dibakar and Bhaskar used some bad languages to
the girls for which a meeting was convened by Rupai Marandi.
10. Section 3 (1) (x) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act provides punishment for
intentional insult with an intent to humiliate a member of a
scheduled caste or scheduled tribe within a public view. P.W.2
has stated that the accused persons have stated saying "AEI
SALA DOMA MANANKU KHEDI DEBA", but the same has not
been stated by him before the police during investigation. It is
the only evidence of P.W.9 which has remained unchallenged
attracting clause (x) of Section 3(1) of the S.C. & S.T. (P.A.) Act.
She has stated that the accused persons drove them out by saying
"DOMA MANANKU RAKHA JIBA NAHIN". The evidence of
Mangalram Kalandi also suffers from contradiction in respect of
the exact words used, but the version of P.W.9 has to be
believed, as it is free from any infirmity. She has named the
accused persons Dibakar Mohanta, Bhaskar Chandra Mohanta,
Ratikanta Mohanta, Laxmidhar Mohanta, Umakanta Mohanta,
Bighnesh Kumar Mohanta, Purna Chandra Mohanta and
Barendra Mohanta. The other witness i.e. P.W.8 has mentioned
the presence of accused Sarat Chandra Mohanta with the other
accused persons in the meeting. Specifically Shanti Kalandi
(P.W.7) has stated that accused Barendra and Sarat intervened
and did not allow to continue the meeting. Therefore, all the
accused persons are guilty under Sec. 3(1) (x) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act and I
convict them thereunder."
6. Being aggrieved by the aforementioned findings recorded by the
learned trial court, which lead to their conviction and sentence, as
mentioned above, all the nine accused-convicts have filed the present
appeal conjointly assailing the judgment of conviction and order of
sentence passed by the learned trial court. During the pendency of the
present appeal, the appellant nos.1 and 4 have died. Therefore, the appeal
qua them stood abated.
7. Mr. Katikia, learned counsel appearing for the appellants
submitted that in the present case the informant (P.W.4) has not
supported the prosecution case. He has deposed before the court that one
Kailash has scribed the FIR (Ext.4) and he was simply asked to sign the
same and he has signed the written FIR as per the dictation but without
reading and understanding the contents. According to Mr. Katikia, the
very basis of the prosecution case is shaken because of the evidence of
P.W.4. He has also pointed out that in so far as the offence under Section
3 (1) (x) of S.C. and S.T. (PoA) Act, the version of P.Ws. 1, 2, 8 and 9
are riddled with contradictions. Therefore, their version vis-à-vis the
offence cannot be relied upon to sustain the conviction. He has taken me
to the evidence of all the witnesses to establish the same. Mr. Katikia has
also read out the evidence of P.Ws.2, 6 and 7, those who are injured in
the present case. The version of all these witnesses substantially varies
from each other. Therefore, conjoint reading of the evidence of all the
injured witnesses would not inspire confidence for sustaining the
conviction.
8. Mr. R.B. Dash, learned Addl. Standing Counsel appearing for the
State controverted the submission made by Mr. Katikia. He has also
relied upon the evidence of P.W.3, the doctor, who has examined P.Ws.
2, 6 and 7 and submitted that the injury caused to P.Ws.2, 6 and 7, as
narrated by them in their evidence, stood corroborated by the evidence of
the doctor. Therefore, there is no question of doubting the findings of the
learned trial court in regard to the offences the appellants are charged
with.
9. I have carefully gone through the record with the help of the
learned counsel appearing for the parties.
10. P.W.1 in her evidence has not whispered a single word regarding
the assertion made by any of the accused-appellants taking the name of
their caste or any of the accused has belittled her because she belongs to
the lower caste. P.W.2, however, has stated in the examination-in-chief
as under:
"3. On the next day a meeting was convened. In my
presence accused Bhaskar and Dibakar confessed their
guilt. Just at that time, the other accused persons
(Barring Dibakar and Bhaskar) reached there and told
"AEI SALA DAMA MANANKU KHEDI DEBA".
Accused Bhaskar Mohanta dealt stick blow on hand."
Similarly, P.W.9 in her testimony has stated as under:-
"2. On our approach, the meeting was convened by our
Ward Member Rapai Marandi. The accused Dibakar
and Bhaskar had come to the meeting and begged
excuse. The accused persons namely Laxmidhar
Mohanta, Umakanta Mohanta, Ratikanta Mohanta,
Bignesh Kumar Mohanta, Purna Chandra Mohanta and
Barendra Mohanta came and started assaulting us (the
accused persons namely Ratikanta Mohanta, Laxmidhar
Mohanta and Umakanta Mohanta were found sitting in
the audience bench to whom the witness identified. The
counsel had represented them). The accused persons
drove us out by saying "DOMA MANANKU RAKHA
JIBA NAHI".
P.W.8 also stated in his examination-in-chief as under:-
"2. Thereafter accused Barendra, Bignesh Mohanta,
Ratikanta Mohanta, Sarat Mohanta, Purna Chandra
Mohanta, Umakanta Mohanta came and did not allow to
continue the meeting saying "MA GIHA DAMA
MANANKU MADA MARI KHEDIDEBA." Thereafter
they started assaulting causing injuries to Shanti
(P.W.7), Gorachand Kalandi and Baikuntha Kalandi.
The accused persons left the place after the assault."
P.W.11, the Investigating Officer in his cross-examination has given a
completely different version, inter alia, stating as under:
"It is a fact that P.W.8 has not stated before me that
Shanti, Gorachand and Baikuntha were assaulted by the
accused persons. P.W.8 has not stated before me staying
the exact word "MA GIHA DOMA".
11. From the evidences of P.W.s 2, 8, 9 and 11, three different
utterances allegedly made by the appellants have come on record.
According to P.W.2, appellant nos.8 and 9 have insulted him saying "A
SALA DAMA MANANKU KHEDI DABA". P.W.8 has taken the name
of the appellants, namely, Barendra (Appellant No.2), Bighnesh
Mohanta (Appellant No.1), Ratikanta Mohanta (Appellant No.4), Sarat
Mohanta (Appellant No.7), Purna Chandra Mohanta (Appellant No.5),
Umakanta Mohanta (Appellant No.3) and stated that all of them have
abused him saying "MA GIHA DAMA MANANKU MADE MARI
KHEDIDEBA". The version of P.W.9, however, is completely different
and she has also taken the name of Laxmidhar Mohanta (Appellant
No.6), Umakanta Mohanta (Appellant No.3), Ratikanta Mohanta
(Appellant No.4), Bighnesh Kumar Mohanta (Appellant No.1), Purna
Chandra Mohanta (Appellant No.5) and Barendra Mohanta (Appellant
No.2) and has stated that the all of them had drove them out by stating
"DOMA MANANKU RAKHA JIBA NAHI".
12. In the light of the above alleged utterances made by the appellants,
as mentioned by the witnesses, I have perused the statement of the
accused persons recorded under Section 313 Cr.P.C. It is apparent on
record that all the utterances, as mentioned above allegedly made by the
appellants to the witnesses, have not been specifically put to the accused.
It is well settled principle of law that every incriminating material, borne
on record through the prosecution evidence, should be put to the
accused. In the event, any of the incriminating materials is not put to the
accused while recording the statement under Section 313 Cr.P.C., those
materials cannot be relied upon. This position of law is well settled in the
case of V.K. Sasikala v. State1,
23. Any debate or discussion with regard to the purport
and object of the examination of an accused under Section
(2012) 9 SCC 771
313 CrPC is wholly unnecessary as the law in this regard
is fairly well settled by a long line of the decisions of this
Court:
23.1. The examination of an accused under Section 313
CrPC not only provides the accused an opportunity to
explain the incriminating circumstances appearing against
him in the prosecution evidence but such examination also
permits him to put forward his own version, if he so
chooses, with regard to his involvement or otherwise in the
crime alleged against him. Viewed from the latter point of
view, the examination of an accused under Section 313
CrPC does have a fair nexus with the defence that he may
choose to bring, if the need arises. Any failure on the part
of the accused to put forward his version of the case in his
examination under Section 313 CrPC may have the effect
of curtailing his rights in the event the accused chooses to
take up a specific defence and examine the defence
witnesses. Besides, the answers given by the accused in his
examination, if incorrect or incomplete, may also
jeopardise him as such incorrect or incomplete answers
may have the effect of strengthening the prosecution case
against the accused.
23.2. In this connection it may be appropriate to refer to
two paragraphs of the judgment of this Court in Manu
Sao v. State of Bihar [(2010) 12 SCC 310 : (2011) 1 SCC
(Cri) 370] which are extracted below: (SCC pp. 316-17,
paras 13-14)
"13. As already noticed, the object of recording the
statement of the accused under Section 313 of the Code
is to put all incriminating evidence against the accused
so as to provide him an opportunity to explain such
incriminating circumstances appearing against him in
the evidence of the prosecution. At the same time, also
to permit him to put forward his own version or
reasons, if he so chooses, in relation to his involvement
or otherwise in the crime. The court has been
empowered to examine the accused but only after the
prosecution evidence has been concluded. It is a
mandatory obligation upon the court and besides
ensuring the compliance therewith the court has to keep
in mind that the accused gets a fair chance to explain
his conduct. The option lies with the accused to
maintain silence coupled with simpliciter denial or in
the alternative to explain his version and reasons for
his alleged involvement in the commission of crime.
This is the statement which the accused makes without
fear or right of the other party to cross-examine him.
However, if the statements made are false, the court is
entitled to draw adverse inferences and pass
consequential orders, as may be called for, in
accordance with law. The primary purpose is to
establish a direct dialogue between the court and the
accused and to put to the accused every important
incriminating piece of evidence and grant him an
opportunity to answer and explain. Once such a
statement is recorded, the next question that has to be
considered by the court is to what extent and
consequences such statement can be used during the
enquiry and the trial. Over the period of time, the
courts have explained this concept and now it has
attained, more or less, certainty in the field of criminal
jurisprudence.
14. The statement of the accused can be used to test
the veracity of the exculpatory nature of the admission,
if any, made by the accused. It can be taken into
consideration in any enquiry or trial but still it is not
strictly evidence in the case. The provisions of Section
313(4) explicitly provide that the answers given by the
accused may be taken into consideration in such
enquiry or trial and put in evidence against the accused
in any other enquiry or trial for any other offence for
which such answers may tend to show he has
committed. In other words, the use is permissible as per
the provisions of the Code but has its own limitations.
The courts may rely on a portion of the statement of the
accused and find him guilty in consideration of the
other evidence against him led by the prosecution,
however, such statements made under this section
should not be considered in isolation but in conjunction
with the evidence adduced by the prosecution."
13. In view of the nature of evidence, as discussed above and the fact
that those prosecution witnesses versions are not put to the accused
persons while recording their statement under Section 313 Cr.P.C., I am
of the view that the prosecution has failed to prove the case against the
appellants in regard to the offence under Section 3 (1) (x) of the S.C. &
S.T. (PoA) Act beyond all reasonable doubt. Therefore, the appellants
are entitled to acquittal in so far as the charges under Section 3 (1) (x) of
the S.C. & S.T. (PoA) Act.
14. Coming to the offence under Section 323 of IPC, the learned trial
court while relying upon the evidence of P.Ws.2, 6 and 7 has recorded
the following findings:-
"11. Witness Gorachand Kalandi (P.W.6) has got an injury
(haematoma) under Ext.2, but he has not implicated any one
for the said blow. Baikuntha Kalandi (P.W.2) received as many
as 3 abrasions as per report Ext.1. According to the witness,
Dibakar Mohanta pelted stones to him and Bhaskar Mohanta
gave a stick blow on his hand. Similarly, P.W.7- Shanti Kalandi
received an incised injury and an abrasion as per the report
Ext.3. According to the witness, accused Barendra and Sarat
assaulted her. P.W.8- Mangalram Kalandi has corroborated
the version of assault by saying that the accused persons
assaulted Shanti, Gorachand and Baikuntha. Therefore, for the
individual act of the accused Barendra Nath Mohanta, Sarat
Chandra Mohanta, Dibakar Mohanta and Bhaskar Chandra
Mohanta, I hold them guilty U/S 323 I.P.C. and convict them
thereunder."
15. I have carefully gone through the evidence of the aforementioned
injured witnesses. P.W.2 in his evidence has stated that Bhaskar
Mohanta (Appellant No.9) has dealt a stick blow on his hand. While
medically examined P.W.2 by the doctor (P.W.3), the following injuries
were found:
"1) Abrasion blackish in colour ½" x ½" on the
middle of right arm.
2) Abrasion blackish in colour ½" x ½" over middle
of fore-head.
3) Abrasion blackish in colour 1 ½" x ½" over the
dorsum of right foot."
16. P.W.6, the second injured witness has not taken the name of any
of the appellants not attributed any specific overt act as to who has
assaulted him, except saying that accused persons, namely, Sarat
Mohanta (Appellant No.7), Dibakar Mohanta (Appellant No.8), Bhaskar
Mohanta (Appellant No.9) told to assault one Mangala. He further stated
that he was also assaulted by someone. Therefore, it is clear from the
evidence of P.W.6 that he has not attributed anything against any of the
accused persons as to who has given the blow. P.W.7 has taken the name
of Barendra Nath Mohanta (Appellant No.2) and Sarat Chandra Mohanta
(Appellant No.7). She has stated in her examination-in-chief that
Barendra Nath Mohanta (Appellant No.2) and Sarat Chandra Mohanta
(Appellant No.7) intervened and assaulted her and did not allow her to
continue the meeting called in the village. In the cross-examination, she
has also stated as under:-
"It is not a fact that I was not assaulted by accused
Barendra and Sarat. I cannot name, who else were
present other than the accused persons."
17. The evidence of P.W.3, the doctor, who has examined P.Ws.2, 6
and 7 corroborates the injury allegedly caused by these named appellants
by the witnesses. Therefore, conjoint reading of the evidences of P.Ws.
2, 3, 6, and 7, it could only lead to the conclusion that appellant nos. 2, 7
and 9 are liable for the offence under Section 323 of IPC as the witnesses
have specifically taken their name. However, the learned trial court has
convicted appellant nos.2, 7, 8 and 9. Since none of the injured witnesses
have attributed anything against appellant no.8 regarding any assault
being dealt by him, appellant no.8 is entitled to an acquittal of the
charges under Section 323 of IPC.
18. Taking into consideration the entire conspectus, the evidence on
record and the fact scenario of the present case, all the appellants are
entitled to acquittal on the ground of benefit of doubts in so far as the
offence under Section 3 (1) (x) of S.C. & S.T. (PoA) Act and Section
323 of IPC, excepting accused-appellants no.2, 7 and 9, who are held
guilty of offence under Section 323 of IPC.
19. In lieu of conviction of the accused-appellants No.2, 7 and 9 U/s.
323 of IPC, they are directed to pay a fine of Rs.1000/- each as held by
the Court below, in default of which to undergo S.I. of 15 days each.
20. Accordingly, the impugned order stands varied in the above terms.
21. The criminal appeal is partly allowed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 19th August, 2025/ Ashok
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Location: High Court of Orissa
