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Orissa High Court

Ambarisha Behera vs State Of Orissa on 16 December, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLA No. 183 of 2007

(In the matter of an application under Section 374 of Criminal
Procedure Code)


Ambarisha Behera               .......                     Appellant

                               -Versus-

State of Orissa                 .......                    Respondent

For the Appellant : Mr. Ramesh Chandra Behera, Advocate

For the Respondent : Mrs. Siva Mohanty, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 09.12.2025 :: Date of Judgment: 16.12.2025

S.S. Mishra, J. The sole appellant-Ambarisha Behera, in the present

appeal, has assailed the judgment of conviction and order of sentence

dated 22.03.2007 passed by the learned Sessions Judge, Dhenkanal in

C.T. (Special) Case No. 41 of 2023, whereby he was found guilty of

offence under Section 354 of IPC as well as under Section 3 (1)(xi) of

the S.C. & S.T. (PoA) Act, 1989 and in lieu of such conviction, the

learned trial court sentenced the appellant R.I. for six months on the count of conviction under Section 3 (1)(xi) of the S.C. & S.T. (PoA)

Act, 1989. However, no separate sentence was awarded for offence

under Section 354 of IPC.

2. Heard Mr. Ramesh Chandra Behera, learned counsel for the

appellant and Mrs. Siva Mohanty, learned Additional Standing Counsel

for the State.

3. The prosecution story in the present case narrates that on

21.02.2001 at about 9.00 A.M. the victim, (P.W.7), was collecting some

branches from the mango trees standing by the side of the road. It is

alleged that the accused came there from jungle side and started

dragging the victim towards jungle by using force. The victim tried her

best to get out of her clutch and ultimately escaped by giving the

accused a slap. It is further alleged that when the accused received the

slap, he had bit on the right hand of the victim. The victim then raised

cry which invited the attention of Siba Sahu, Palau Senapathy and

others, who were working in the nearby brick kiln and when they

arrived, the accused left the place by leaving his bicycle and napkin and

ran away towards jungle. One Ratnakar Nayak, who was working

nearby and one Ani Sethy, who was going on the road to the tank to

take bath are said to have seen the incident. The victim after the said

incident came crying to her house narrated the incident and her father in

turn approached the village chief Jaladhar Sahu in the matter by making

a complaint in writing. A meeting was called for the purpose, but the

accused did not come to attend the same. Thereafter, the matter was

reported at Mahabi road Police out-post under Parjang Police Station on

22.01.2001 at 10.20 A.M.

4. On the basis of the aforementioned allegations, police registered

the case and investigation was conducted. Charge sheet was filed

against the appellant. The accused took a plea of denial and false

implication specifically contending that P.W.7, the victim, has falsely

implicated him in the present case so as to harass him. On such stance

and claim for trial, he was put to trial after the charges were framed.

5. To establish the charges, the prosecution examined nine

witnesses, out of them P.W.1, was the then Tahasildar, Kamakhyanagar,

who had issued the caste certificate concerning the caste of P.W.7;

P.W.2 was the doctor, who had medically examined P.W.7; P.W.3 is the

father of P.W.7, whereas P.Ws.4, 5 and 6 were the co-villagers of P.W.7

and the accused; P.W.7 was the victim, whereas P.Ws.8 and 9 were the

I.Os. of the present case.

6. On the analysis of the evidence, particularly the evidence of

P.W.7, the victim and P.W.2, the doctor, the learned trial court arrived

at the following conclusion:-

"4. xxx xxx xxx

The star witness for the prosecution in this case is P.W.7 the victim standing in a footing of an injured witness and corroborative evidence comes from the lips of P.W.2 the doctor who had examined P.W.7 on Police requisition as in this case all other witnesses to the occurrence have not supported then prosecution case. P.W.7 in her evidence has stated that on the relevant date, time and place when she was bringing a branch of a mango tree, the accused came and pulled her blouse for which the same was got torn. She has further stated that accused had caught hold of her and was pulling her towards nearby jungle when she struggled, and slapped him. It has been further deposed by her that accused had bitten on her right thumb when she was coming away having escaped. As regards the incident practically, P.W.7 has not been cross examined. Barring a stray statement having been brought out that accused had not pulled her with any evil intention, no such infirmity has surfaced so as to even doubt her positive evidence on the score. A bare suggestion has been thrown that as because she did not succeed in marrying the accused, the false case she has foisted against him but, that gains no support from any other evidence on record. F.I.R. Ext. 4 lodged by P.W.7 renders corroboration to her evidence as on the plain reading of the same. I find that the present version of the victim runs at par with the narration made in Ext.4 without any such major variation. When, P.W.7 states to have sustained injury on the right thumb, the same further gets corroboration from the evidence of P.W.2 the doctor who deposed to have noticed such simple injuries on right index finger of P.W.7. Although, in this case the after occurrence witnesses, P.W.5 has not supported the prosecution but that itself in my considered opinion is not sufficient to discard the version of P.W.7. Furthermore here apart from the corroborative evidence available on

record as stated above one more circumstance goes to establish the truthfulness of the version of P.W.7 and that is when P.W.7 says that her blouse was torned and accused was leaving left his napkin. during trial that napkin marked M.O.II and the torn blouse is M.O.I have been produced whose seizure has also been proved and even there is no suggestion that accused had not left such napkin or that the napkin does not belong to the accused. This definitely further renders corroboration to the version of P.W.7 about the presence of the accused at the relevant time over ruling the possibility of false implication. From all these, evidence of P.W.7 is found to be having a ring of truth and her credibility has in no way be impeached. Thus, on a conspectus of evidence I find that prosecution has been able to prove beyond reasonable doubt the fact that, accused came pulled her blouse and dragged her and then because of protest bit her right thumb.

Here when P.W.7's evidence and the caste certificate is to the effect that she is a member of Scheduled caste being Dhoba by caste, the same is not under challenge and rather the accused during his examination admits the said fact and there is also no dispute that the accused is not a member of either Scheduled caste or Scheduled tribe. Then role of the accused in the incident as has been established clearly indicate that it was with an attention to outrage the modesty of P.W.7 a member of Scheduled caste when the same is considered with the other circumstances that the attempt was made when the victim was alone and that too in a lonely place and on protest from the side of the victim there was a strong resistance by bitting her right thumb and then the last one is the fact that the accused ran away from the spot when P.W.7 raised hulla. In view of all these, the statement of the victim P.W.7 during cross examination that it was not with an evil intention pales into in significance and cannot be given any weightage."

7. Aggrieved by the aforementioned findings, the appellant

challenged the order in the present appeal.

8. Mr. Behera, learned counsel for the appellant has challenged the

impugned judgment on various grounds, particularly questioning the

veracity of the testimony of P.W.7, which is riddled with the

contradictions. He further submitted that P.W.3, the father of the victim,

P.Ws.4, 5 and 6 the villagers although were the main witnesses of the

prosecution, but have not deposed in favour of the prosecution to lend

corroboration to the statement of P.W.7. It is also pointed out that a

compromise was entered into between the accused and the victim and

was placed before the learned trial court. The victim, however, wriggled

out of her settlement terms that would reflect from the evidence.

Learned counsel for the appellant further pointed out that the prime

witness, as per the prosecution version, namely, the mother of the victim

and one Ratnakar Nayak were deliberately withheld to be examined by

the prosecution. By extensively reading of the evidence of P.Ws.8 and

9, learned counsel for the appellant further urged that the statutory

provisions under Rule-7 of the Scheduled Caste and the Scheduled

Tribes (Prevention of Atrocities) Rules, 1995 has not been complied

with in the present case. To substantiate his argument, he has also relied

upon the judgment of the Hon'ble Supreme Court in the cases of

Asmathunnisa vrs. State of A.P., (2011) 49 OCR (SC) 175;

Karuppudayar vrs. Deputy Suerintendent of Police, (2025) 98 OCR

(SC) 169; and Hutu Ansari @ Futu Ansar & Ors. Vrs. State of

Jharkhand, (2025) 99 OCR (SC) 552.

9. Per contra, learned counsel for the State submitted that the

reasoning recorded by the learned trial court to convict the appellant is

culmination of true appreciation of evidence. Therefore, the same

cannot be said to be unjustified and requires interference.

10. With the help of learned counsel for the parties, I have gone

through the entire materials placed on record to appreciate as to whether

any offence under Section 3 (1)(xi) of the S.C. & S.T. (PoA) Act, 1989

is made out or not. The prime witness, P.W.7, who is the victim in the

present case has stated that she belongs to 'Dhoba' by caste and a

member of the Schedule Caste, whereas the accused 'Chasa' by caste.

She narrated the incident, inter alia, deposing as under:-

"About three years back, on a day at about 10 AM.. I had been to wash cloth. At that time, I broke a branch of a mango tree from mangrove. At that time, the accused came and pulled my blouse, as a result of which, it was torn. I raised cry. Hearing my cry, Ani Sethi and others of my village came there. I had sustained an injury on my right hand on thumb, As a result of being bitten by the accused, when the accused ran away from the spot, he left the napkin behind. At that time, the accused Amarish caught hold of me and with an evil intention, pulled me towards the nearby jungle, for which, I struggled and

slapped him. As I was coming away, he bit my right hand as a result of which, I shouted."

However, on the cross examination of the said witness it is very

categorically admitted that Ambarish (the appellant) has not pulled her

with any evil intention. That part of the admission in the cross

examination has diluted her version in the examination in chief that with

ill intention the appellant has tried to pull her. The doctor, who

examined the victim has deposed that he found two injuries in the

person of the victim. Both the injuries, according to him, were simple in

nature. Injury no.1 was an abrasion of 1 cm x ½ cm on radial aspect of

back of right index figure and injury no.2 is an abrasion of ½ cm x ½

cm on lateral aspect of base of right index figure (between the index and

middle figure).

11. The independent witnesses, like P.Ws.3, 4, 5 and 6 have

not supported the prosecution case and all of them have in unison stated

that they have no knowledge about the occurrence. P.W.8 was the I.O.,

who was posted as D.S.P. of Dhenkanal on 24.04.2001, in his

examination in chief has stated that he investigated the case and filed

the charge sheet on 13.08.2001. However, in the cross examination, he

has stated as under:-

"2. I have neither visited the spot nor prepared spot map in this case. I have not separately recorded the statements of any witness in this case. It is not a fact that between 24.4.2001 and 13.8.2001, I have not made any investigation in this case. I have not made any seizure in this case nor sent the injured for his medical examination. It is not a fact that I have signed on the police papers, sitting in the office without being making any investigation."

His admission that he has not visited the spot, not examined the

witnesses and not prepared the spot map etc. stood directly corroborated

with the evidence of P.W.9, the ASI, who has deposed that after the

OIC registered the case, the investigation was handed over to him and

he proceeded with the investigation. He further stated in his cross

examination, as under:-

"2. On receiving the written report, I examined the complainant and her father at the outpost. I also sent the complainant for her medical examination by issuing necessary requisition. At 11.30 A.M., I visited the spot, i.e, the mangrove in village Pangatira. I had prepared a spot map. Ext.5 is that spot map.

3. At the spot, I examined all other witnesses. At 4 PM, I seized one torn blouse of the complainant and one napkin of the accused, on production by the complainant at the spot. Then, I prepared the seizure list in presence of witnesses. Ext. 3/1 already marked, is the seizure list and 3/3 is my signature therein, M.O.I is that torn blouse of the complainant and M.O.11 is the napkin of the accused."

12. The reading of the evidence of P.Ws.8 and 9 makes it abundantly

clear that the entire investigation of the case is being conducted by

P.W.9. Rule-7 of the Scheduled Caste and the Scheduled Tribes

(Prevention of Atrocities) Rules, 1995, which came into force on 31st

March, 1995 mandates that every case registered under the provisions of

S.C. & S.T. (PoA) Act shall be investigated by an officer not below the

rank of D.S.P. This mandatory provision appears to have been

conveniently given a go by in the present case, as the investigation was

in fact carried out by P.W.9, who was posted as ASI in the police

station. His testimony reveals the said fact and stood corroborated with

the evidence of P.W.8, who himself has admitted in the cross

examination that he has not done any investigation in the case. On this

sole ground, the appellant could be acquitted.

13. Apart from that, reading of the evidence of P.W.7, the victim,

also does not inspire confidence because of the inherent contradictions

and for the reason that none of the independent witnesses have

supported the prosecution case. Besides that it is a settled position of

law that the act complained of against the appellant is intended by him,

to commit so as to insult or denigrate the victim, who belongs to

scheduled caste. The paramount requirement to attract the offence

under Section 3 (1)(xi) of the S.C. & S.T. (PoA) Act is that the offence

must be committed upon a person belonging to scheduled caste or

scheduled tribe with the intention that it was being done on the ground

of the caste. In this regard, the judgment of the Hon'ble Supreme Court

in the case of Dashrath Sahu vrs. State of Chhattisgarh, reported in,

2024 SCC OnLine SC 72 assumes importance and paragraphs-9 and 10

of the said judgment read as under:-

"9. We have gone through the FIR and the sworn testimony of the prosecutrix/complainant as extracted in the judgments of the High Court as well as that of the trial Court. The case as projected in the FIR and the sworn testimony of the prosecutrix would reveal that the prosecutrix/complainant was engaged for doing household jobs in the house of the accused appellant who tried to outrage her modesty while the prosecutrix/complainant was doing the household chores. Apparently thus, even from the highest allegations of the prosecutrix, the offending act was not committed by the accused with the intention that he was doing so upon a person belonging to the Scheduled Caste. This issue was dealt with by this Court in the case of Masumsha Hasanasha Musalman v. State of Maharashtra wherein it was held as below:--

"9. Section 3(2)(v.) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Penal Code, 1860 punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3(2)(v.) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Penal Code, 1860 is committed against him on the basis

that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v.) of the Act arises. In that view of the matter, we think, both the trial court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial court as well as by the High Court ought to be set aside."

10. In the said judgment, this Court dealt with a case involving offence under Section 3(2)(v) of the SC/ST Act. The language of Section 3(1)(xi) of the SC/ST Act is pari materia as the same also provides that the offence must be committed upon a person belonging to Scheduled Castes or Scheduled Tribes with the intention that it was being done on the ground of caste."

Relying on the aforementioned judgment, similar principles were

reiterated by this Court in the case of Pradeep Sahu vrs. State of Orissa

(CRA No. 94 of 1995), relevant portion of which is reproduced

hereunder for convenience of ready reference:-

"14. The fact of the present case is quite akin to that of Dasarath Sahu (supra) case. It is a fact that the evidence has come on record that the accused has caught hold the hand of the victim and drag her into the water and tore her frock from the front side and slapped her, which satisfy the ingredients of an offence under Section 354 IPC and also satisfy the part of the ingredients of the offence under 3(1)(xi) of the S.C. & ST (PoA) Act. But from the evidence of P.W.2, the intention part is not coming to fore to hold that the appellant is guilty for offence under Section 3(1)(xi) of the S.C. & ST (PoA) Act, particularly for two reasons that neither the victim herself nor from the evidence of other witnesses, which is germinating from the record evident the act complained of committed by the appellant is with an intention that it was being done on the ground of caste of P.W.2."

14. On the aforesaid count also, the prosecution has failed to

establish its case. Thirdly, it was the obligation on the part of the

prosecution to not only establish on record that the victim belongs to

either Scheduled Caste or Scheduled Tribe and the accused is not

belonging to either Scheduled Caste and Scheduled Tribe. In the instant

case, though the prosecution has brought documents on record to

establish that the victim belongs to Scheduled Caste, however, no

evidence is illuminating on record to suggest that the accused is not

belonging to Scheduled Caste or Scheduled Tribe category. In this

regard, the judgment of this Court in the case of Sibananda @

Subbanath Bhoi vrs. State of Odisha, reported in (2024) 94 OCR 792,

assumes importance. Paragraph-12 of the said judgment reads as under:-

"12. One of the prime ingredients 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 materials 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:-