Orissa High Court
Dhusa @ Dusasan Parua & Another vs State Of Orissa on 19 August, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.308 of 1999
(In the matter of an application under Sections 374(2) of the Criminal
Procedure Code, 1973)
Dhusa @ Dusasan Parua & another ....... Appellants
-Versus-
State of Orissa ....... Respondent
For the Appellants : Mr. Pratyush Ranjan Pattnaik, Advocate
For the Respondent : Mr. Raj Bhusan Dash,
Additional Standing Counsel
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 31.07.2025 :: Date of Judgment: 19.08.2025
S.S. Mishra, J. The present Criminal Appeal filed by the appellants
under Section 374(2) of the Cr.P.C., is directed against the impugned
judgment and order dated 22.11.1999 passed by the learned Special
Judge-cum-Sessions Judge, Balangir in G.R. Case No.523 of 1997/T.R.
No.9 of 1998, whereby the learned trial Court has found the accused-
appellants guilty and convicted them for the offences punishable under
Sections 323/294/355/34 of the IPC and sentenced them to undergo R.I.
for three months each and to pay fine of Rs.500/- (Rupees five hundred),
in default, to undergo further R.I. for one month for the offence under
Section 323/34 of the IPC, they were directed to undergo R.I. for one
month for the offence under Section 294/34 of the IPC and R.I. for six
months and to pay fine of Rs.500/- (Rupees five hundred), in default to
further undergo R.I. for two months for the offence under Sections
355/34 of the IPC and the sentences were directed to run concurrently.
The accused-appellants being aggrieved and dissatisfied by the
judgment of conviction and order of sentence of the learned Special
Judge-cum-Sessions Judge, Balangir, have preferred the present
Criminal Appeal.
2. The prosecution case, in nutshell, is that on 30.11.1997 at about 8
A.M., when the informant Mistri Nanda, a member of Scheduled Caste
was returning from his land, on the way, in front of the rice mill of
Dhubaleswar Parua, both the accused persons restrained and abused him
in obscene language saying "SALA MAAGIHA, MADARCHOD
TURA BUAKE DAK" and also made caste aspersion addressing him as
'Ganda', the community to which he belongs. Further, the accused
Dhusa threw him on the ground by pulling his hand. Accused Tapa dealt
slaps, kicks and fist blows and also put human excreta in his mouth by a
stick. Accused Tapa also assaulted on his head near the ear by a stone
causing bleeding injury. After the occurrence, the informant fled away
from the spot and described the incident to some persons of the village.
It is further alleged that due to the previous dispute, the accused persons
indulged in such offensive activities. Hence, the F.I.R. After the
investigation, charge sheet was filed in the present case and the
appellants were put to trial on the stance of denial.
3. In order to bring home the charges, the prosecution has examined
seven witnesses. P.W.1 was the injured-informant. P.Ws.2, 3 and 5 were
the post occurrence witnesses before whom P.W.1 described about the
occurrence. P.W.4 was a witness, who has not supported the prosecution
case. P.W.6 was the Investigating Officer and P.W.7 was the doctor of
Tusra Government Hospital, who examined P.W.1 on police requisition.
The defence examined one witness.
4. Both the appellants stood charged for the offences punishable
under Sections 323/294/355/34 of the IPC read with Section 3(1)(x) of
the S.C. & S.T. (PoA) Act. However, the learned trial Court acquitted
the appellants of the offence under Section 3(1)(x) of the S.C. & S.T.
(PoA) Act by observing as under:
"Although there is evidence that P.W.1 is a member of
schedule caste and the accused persons are general caste
men, the offences u/s 3(1)(x) of the S.C. & S.T. (Prevention
of Atrocities) Act cannot be said to have been established
as there is no evidence that the insult and intimidation
meted out towards P.W.1 was within public view. Besides
there is infraction of the mandatory provision of Rule 7 of
the S.C. & S.T. (P.A.) Rules, 1995 which provides that
investigation into an offence under the S.C. & S.T. (P.A.)
Act has to be done by an officer not below the rank of a
Deputy Superintendent of Police and such officer is to be
specifically appointed by the State Government. Admittedly
the investigation into the offence under the Act was done by
Officer-in-Charge, Tusra who is a Sub-Inspector of Police
and not a Dy. Superintendent of Police. In the case of
Ramalinga Reddy-vrs.- State of Andhra Pradesh reported
in 199(2) Crimes 343, it has been held that investigation of
the offence being carried out by S.I. of Police, in
contravention of Rule 7 of the Rules, vitiates the trial for
the offence. Therefore, the accused persons cannot be held
guilty for the offence under section 3(1)(x) of the S.C. &
S.T. (P.A.) Act."
5. The findings recorded by the learned trial Court as mentioned
above, needs to be agreed upon, as it is apparent from the record that the
mandatory provisions contained in Rule-7 of the Rules, 1995 which
came into force on 31.03.1995 has not been admittedly complied with.
Therefore, this part of the judgment is affirmed.
6. Perusal of the evidence of P.Ws. 1, 2, 3 and 5 reveals that all of
them in unison have deposed that on the fateful day at about 8 A.M., the
accused persons restrained P.W.1, the victim on the way and abused him
in filthy language also made caste aspersion addressing him as 'Ganda'.
Appellant no.1 threw him on the ground while appellant no.2 assaulted
him. It has also come on record through their evidence that P.W.1 was
beaten up and sustained injuries on his right ear and there was stain of
human excreta around his mouth. P.W.1 in his statement has disclosed
that he was assaulted by both the appellants whereas the appellant no.2
forcibly put human excreta in his mouth by means of a stick. The said
evidence stood corroborated with the evidence of the other witnesses.
The defence although attempted to question the trustworthiness of the
version of those witnesses, but the learned trial Court has rightly turned
down the defence version.
7. The learned trial Court, while dealing with their evidence, has
arrived at the following conclusion:
"The evidence of P.Ws. 2, 3 and 5 to the effect that they
saw stains of human excreta on the face of P.W.1 when
he disclosed the incident before them is also assaulted to
be improbable. P.W.1 has stated in his cross-
examination that his pada is at a distance of about a
mile from the place of occurrence. Placing reliance on
such evidence of P.W.1 it is argued that it is improbable
on the part of a person to walk a mile without washing
off human excreta from his face. Learned counsel for the
defence relies on the decision of the Supreme Court in
the case of Vidya Singh- vrs.- State of Madhya Pradesh,
reported in A.I.R. 1971 SC 1857 wherein it has been
observed that in assessing the value to be attached to the
evidence, the Courts have to rely more on human
probabilities than on the assertions of the witnesses.
There is no dispute over the aforesaid preposition. In the
aforesaid case the Hon'ble Apex Court disbelieved the
evidence of P.Ws. with regard to the manner of infliction
of injuries by the appellant inasmuch as the evidence
was inherently improbable. It is only where the evidence
of witnesses sounds inherently improbable that the Court
is not to rely on the same though the witnesses
consistently speak such improbable fact. When human
excreta was forcibly put in the mouth of a person, there
is every possibility of same stains of the excreta being
left on the face around the mouth. Making someone
forcibly to eat human excreta is an act of dishonor and
insult of gravest nature. A victim subjected to such
dishonor is not unlikely to carry the stains for a mile to
show the same to others and describe his woes. There is
nothing inherently improbable in such type of conduct of
P.W.1."
8. Heard Mr. Pratyush Ranjan Pattnaik, learned counsel appearing
for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing
Counsel appearing for the Respondent-State.
9. With the help of both the learned counsels appearing for the
parties and after going through the evidence on record very meticulously
only to arrive at a conclusion that the learned trial Court indeed by well
appreciating the evidence on record, has arrived at the findings as
reproduced above.
10. I have no option rather to agree with the guilt of the appellants
recorded by the learned trial Court. Therefore, in the fact scenario of the
present case and on the basis of the evidence on record, the impugned
judgment dated 22.11.1999 passed by the learned Special Judge-cum-
Sessions Judge, Balangir in G.R. Case No.523 of 1997/T.R. No.9 of
1998 is affirmed in so far as the recording of guilt of the appellants
regarding the commission of offence under Sections 323/294/355/34 of
the IPC.
11. At this stage, Mr. Pattnaik, learned counsel for the appellants
submits that the incident is of the year 1997. The appellants at that point
of time were in their 20s. The present appeal is pending since 1999.
Hence, at present, the appellant no.1 will be about 48 years old and
appellant no.2 will be about 51 years old. Since much time has lapsed in
between and the appellants are well settled in the society, they are
entitled to the benefit of Probation of Offenders Act. Accordingly, he
prays that the appellants may be treated under the Probation of Offenders
Act.
12. It is found from the record that the appellants were arrested on
30.11.1997 and were granted bail by the trial Court on 01.12.1997. After
passing of the impugned judgment on 22.11.1999, they were taken into
custody and this Court granted bail to the appellants on 22.12.1999.
Therefore, both the appellants have already undergone imprisonment for
about one month each.
13. Taking into consideration the period both the appellants have
already undergone and pendency of the Criminal Appeal for more than
two decades and age of the appellants, I am of the view that the
maximum sentence awarded by the learned trial Court for imprisonment
of R.I. for six months is liable to be modified to that of the sentence the
appellants have already undergone. However, the appellants are liable to
pay fine of Rs.10,000/- (Rupees ten thousand) each, in default of which,
they are liable to undergo R.I. for one month each. The fine amount to be
deposited shall be disbursed to the P.W.1, the victim as per the
provisions of Section 357 Cr. P.C.
14. The Criminal Appeal is accordingly disposed of.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 19th August, 2025/Subhasis Mohanty
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 20-Aug-2025 18:18:01
