Minaketan Das Mohapatra vs State Of Orissa
2025 Latest Caselaw 5858 Ori

Orissa High Court

Minaketan Das Mohapatra vs State Of Orissa on 30 May, 2025

                     IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 CRA No.110 of 1998

             Arising out of the judgment and order dated 20.05.1998 passed by the
             learned Special Judge, Balasore in Special Case No.27 of 1996.


                    1.Minaketan Das Mohapatra
                    2. Harihar Das Adhikari                   .... Appellants

                                              -versus-
                    State of Orissa                           .... Respondent

             Advocates appeared in this case through Hybrid Mode :


                     For Appellants                : Mr. S.S.Lenka, Advocate
                                                on behalf of Mr.D.P.Dhal, Advocate

                    For Respondent                : Mr. M.R.Mishra, ASC

                CORAM:
                     HON'BLE MISS JUSTICE SAVITRI RATHO

          ..................................................................................

Date of Judgment : 30.05.2025 ...................................................................................

Savitri Ratho, J. In this Criminal Appeal, the appellants have challenged the

judgment and order dated 20.05.1998 of the learned Special Judge,

Balasore, in Special Case No.27 of 1996 convicting them under Section

3 (b) of Protection of Civil Rights Act (in short the "PCR Act") and

sentencing them to undergo R.I. for two months and to pay a fine of

Rs.200/- (Rupees two hundred), in default of payment, to undergo

further R.I. for ten days under). By the same judgment, the appellants

were acquitted of the charges under Section 3 (1) (x) of the Scheduled

Caste and Scheduled Tribe (Prevention of Atrocities) Act (in short "the

SC and ST (PoA) Act") and Section 323/34 of the Indian Penal Code (in

short "the IPC").

PROSECUTION CASE

2. The prosecution case in brief is that P.W.1-Anadi

Gochhayat, P.W.2-Aniruddha Gochhayat, his brother, P.W.3-Khira

Gochhayat, their aunt, so also few other witnesses are scheduled caste

persons belonging to Hadi sub-caste. On the Shivaratri day of 1996,

these persons went to Lord Gupteswar Mahadev temple to offer puja.

While they were standing by the side of the road, the wife of accused,

Harihar went there carrying water. She and others asked the scheduled

caste persons to give them way. There was an altercation between them.

At that moment accused, Minaketan came and abused them saying

"Magiha, Sala Hadi" etc. in order to insult them within public view.

Accused-Harihar also abused them saying "Sala Hadi" etc. P.W.1 and

others were pushed by the accused persons for which they sustained

injuries. The accused persons prohibited P.W.1 and others from offering

puja in that temple where public at large were offering puja.

DEFENCE PLEA

3. The defence plea is of complete denial and false

implication due to political rivalry. Minaketam has taken the specific

plea that when the complainant and witnesses were asked to vacate the

land of the appellants, they have made false allegations.

WITNESSES

4. In order to prove its case, the prosecution has examined six

witnesses. P.W.1-Anadi Gochhayat, P.W.2-Aniruddha Gochhayat,

P.W.3-Khira Gochhayat and P.W.4-Muktikanta Gochhayat, more or

less, belong to one family. P.W.2 is a brother of P.W.1, whereas P.W.3

is his aunt. P.W.5-Purusottam Jena, partly supports the prosecution case.

P.W.6 is the Investigating Officer.

EXHIBITS

5. On behalf of the defence, no witness had been examined.

The prosecution exhibited four documents. Ext.1 is the F.I.R., Ext.1/1 is

the signature of P.W.1, Ext.1/2 is the endorsement of O.I.C., Ext.1/3 is

the formal F.I.R. On behalf of the defence no document has been

exhibited.

EVIDENCE OF WITNESSES

6. The evidence of P.Ws. 1 to 6 are follows:

P.W.1-Anadi Gochhayat is the informant. He has stated that

when he was sitting near the temple on Sivaratri day, Anirudha his

brother (P.W.2) and Khira his aunt (P.W.3) went to the temple to offer

Puja. Wife of Harihar Adhikary asked his brother to get down from the

temple verandah, but his brother told that he had already taken bath, so,

he could offer puja. Then accused Harihar Adhikary came and abused

saying "What you hadis have became Brahmin?". Thereafter, accused

Minaketan came and abused saying "MAGIHA TAME SALE HADI, ATE

BADA HOI GALANI". They asked his brother and aunt that they could

not offer puja. They were pushed out from the temple. He has stated FIR

was written by one Maheswar Mohanty. And he has lodged report in the

police station. In cross examination they have denied the suggestion that

as the Sarpanch (who is aunt of appellant No.1) did not recommend their

name for Jawahar Jojana, they have filed false case.

P.W.2 Anirudha Gochhayat stated that he had gone to

Gupteswar temple to offer puja on Sivaratri day. At that time, Khira

(wife of Chema) came and was carrying water. He asked him and his

aunt to move from that place. There was an altercation during which

accused-Harihar came and abused them saying "SALA SCHEDULED

CASTE PERSONS". Thereafter, accused Minaketan came and abused

saying "SALA MAGIHA TAME UPARAKU UTHI GALANI" and that

we could not worship in the temple. Thereafter he gave pushes and

removed them out saying that they could not worship in the temple. In

cross-examination he has said that they have never entered inside the

temple to offer puja.

P.W.3 Khira Gochhayat stated that she had gone to the

Mahadev temple to offer Puja. The wife of accused Hari came and asked

them to leave the way for her. So there was an altercation. Then accused

Minaketan and Harihar abused them saying SALE HADI TAMAKU

AME PUJA KARIBAKU DEBUNAHIN" and went away. Accused

Minaketan assaulted P.W.2 and removed him out. Many people were

present then. During cross-examination, she has stated that P.W.1,

P.W.2 and Babaji are her nephews and they have raised temporary

construction on the tank of the accused persons near the temple. They

were cultivating their lands and just before the occurrence, they had

stopped them from cultivating their lands. They belonged to Congress.

Accused persons belong to BJP.

P.W.4 Muktikanta Gochhayat stated that the occurrence

took place in the morning of Jagara day when he was in his house

situated near Gupteswar temple. Hearing the shouts, he went to that

temple. Accused Minaketan and Harihar abused them saying "SALA

HADI". They forcibly removed them from the temple premises by

dealing pushes. They were highly annoyed and insulted by such act of

accused persons. They were not allowed to worship in that temple.

During cross-examination he has stated that the temple is the family

deity of the accused persons. Gochhayat families are staying in the

temporary construction on tank embankment. Prior to occurrence, they

used to offer puja on festival days. But voluntarily they never used to

enter inside the temple. No dispute took place for entering the temple

but for offering puja through priest. Fifty persons had gathered to offer

puja and they had intimated the gentlemen about the quarrel.

P.W.5-Purostam Jena stated that he had been to Shiva

temple to offer puja. While he himself and others were standing on the

path, the wife of the accused Harihar came carrying water and asked

them to move aside. They told that they were standing by the side of the

road. So there was altercation. Accused Dinu abused them saying

"MAGIHA HADI". Accused persons pushed Muktikanta, Babaji and

Babula. In cross-examination he stated that he is a Pano Scheduled

Caste and he offered puja on that date.

P.W.6, who is the Sub-Inspector of Police, stated that on

receipt of the written report by the Officer-in-charge, revealing a

cognizable offence, he registered Soro P.S. Case No.25/96 and directed

him to take up investigation. Ext.1/2 is the endorsement of the Officer

in-charge. He drew up formal FIR (Ext.1/3). He took up investigation.

He examined the complainant, visited the spot, examined other

witnesses. He obtained the caste certificate from the Tahasildar, Soro in

respect of the informant who belongs to „HADI‟ (Scheduled Caste). As

the accused persons surrendered before the Court, after completion of

investigation as he found a prima-facie case under S.C. & S.T. (PoA)

Act, he submitted charge-sheet. Paragraphs 9, 10 and 11 of his

deposition are extracted below.

"9. I had examined P.W.1-Anadi Gochhayat. He had not stated before me that he was sitting near the temple or that the wife of Harihar asked Anirudha to get down from the temple verandah. He had not stated before me that accused Harihar told TAME HADIGUDA KEBETHU BRAHMANA HOIGALANI.

10. I had examined P.W.4 Muktikanta who had stated before me that in his presence occurrence took place; but he ascertained the occurrence from others which took place before his arrival.

11. I had examined Purastam Jena (P.W.5). He had stated before me that in his presence the accused persons abused P.Ws.1, 2 and 3 saying SALA HADI etc. But he ascertained from others the previous acts of taking of water by the females. He had stated before me that the accused persons abused saying SALA HADI but not MAGIHA HADI. He had not stated before me that the accused persons gave pushes to Muktikant, Babaji or Babula."

TRIAL COURT JUDGMENT

7. As stated earlier, the learned trial court convicted the

appellants for commission of offence under Section 3 (b) of the PCT Act

but acquitted the appellants of the charge under Section 323/ 34 IPC and

Section - 3 ( 1) (x) of the SC and ST ( PoA) Act. While doing so, the

learned court arrived at the following findings:-

i) It is evident from statements of witnesses that they were removed

from the temple but there is no positive evidence about infliction of

bodily pain on P.Ws.1, 2 and 3.

ii) There is no evidence that any of the accused gave threats of injury to

persons reputation or property of the witnesses, much less with intent to

alarm them.

iii) There is no positive evidence that the accused had any intention to

insult the schedule caste persons.

iv) There was altercation between the accused and witnesses and some

abusive words were uttered in course of altercation. This does not

disclose any intention to insult any of the scheduled caste persons.

v) The witnesses have consistently stated that they were removed out of

the place and not allowed to offer puja.

vi) From the stamen of witnesses, it is evident that the Gochhayats

(schedule caste persons) voluntarily do not enter inside the temple but

they offer puja through priest. On the date of occurrence they were not

allowed to offer puja through priest.

vi) The accused persons declared that they will not allow them to offer

puja as they are scheduled caste persons.

vii) Section 3 (b) of the PCR Act will include the act of prohibiting a

person from offering puja through a priest, because that is part of

worship.

viii) Place of public worship defined in Section 2 (d) of the PCR Act

includes a privately owned place of worship which is allowed by the

owner to be used as a place of public worship.

ix) Though the temple belongs to the family of the accused persons, they

allowed the temple to be used as a place of public worship.

x) No evidence that the political allegiance if any of the accused and

witnesses had any nexus with the occurrence.

SUBMISSIONS

8. Challenging the conviction of the appellants under Section 3(b)

of the PCR Act, Mr. S.S.Lenka learned counsel appearing on behalf of

the appellants has advanced the following submissions :-

i) The temple and property belong to the family of the appellants and

this has been admitted by P.W.4 in his cross examination in paragraph-

5, where he has stated that the temple is the deity of the appellants.

Therefore, it cannot be a place for "public worship" as per definition

under Section 2 (d) of the PCR Act for which Section 3(b) of the PCR.

Act will not be attracted.

ii) The appellants and the witnesses (P.Ws.1 to 5) belong to two rival

political parties, which is admitted by P.W.3 in her cross examination at

paragraph 5. They had been cultivating the lands of the appellant but

were recently disallowed by the appellants. This is admitted by P.W.3 in

her cross-examination. These are the reasons for their making false

allegations against the appellants.

iii) Although it is stated that members of the public were present at the

spot, but no independent witness has been examined. P.Ws.1 to 3 belong

to the same family. P.W.4 belongs to the same caste. P.W.5 belongs to

the same political party as PWs.1 & 2. They are all interested witnesses.

iv) The evidence of the witnesses is discrepant. While one says

occurrence took place inside the temple premises, another says it is on

the path to the temple. The witnesses do not say that they were inside

the temple and were pushed out to prevent them from worshiping inside

the temple.

v) Allegation that the witnesses were abused with intention to humiliate

them as he belongs to scheduled caste has been disbelieved. If the

statements of the witnesses that they were earlier offering puja during

festivals is believed then it is apparent that this is a stray incident on

account of obstruction to wife of Appellant No.2 who was carrying

water to the temple which led to an altercation.

9. Mr. M.R.Mishra, learned Addl. Standing Counsel opposed

the submissions of the learned counsel for the appellants and submitted

that the judgment of the learned Court is based upon the evidence of

prosecution witnesses and hence no interference is called for. The

appellants have pushed out the witnesses from the temple for which they

could not worship, so their conviction under Section 39(b) of the PCR

Act does not call for any interference.

STATUTORY PROVISION

10. Section 2 (d) and Section 3(b) of the PCR Act, which are

relevant are extracted below:- \

"Section 2 (d) "place of public worship" means a place, by whatever name known, which is used as a place of public religious worship or which is dedicated generally to, or is used generally by persons professing any religion or belonging to any religious denomination or any section thereof, for the performance of any religious service, or for offering prayers therein, and includes--

(i) all lands and subsidiary shrines appurtenant or attached to any such place;

(ii) a privately owned place of worship which is, in fact, allowed by the owner thereof to be used as a place of public worship; and

(iii) such land or subsidiary shrine appurtenant to such privately owned place of worship as is allowed by the

owner thereof to be used as a place of public religious worship;

"3. Punishment for enforcing religious disabilities.-- Whoever on the ground of "untouchability" prevents any person--

(a) from entering any place of public worship which is open to other persons professing the same religion or any section thereof, as such person; or

(b) from worshipping or offering prayers or performing any religious service in any place of public worship, or bathing in, or using the waters of, any sacred tank, well, spring or water-

course [river or lake or bathing at any ghat of such tank, water-course, river or lake] in the same manner and to the same extent as is permissible to the other persons professing the same religion or any section thereof, as such person, shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees.

Explanation.--For the purposes of this section and section 4 persons professing the Buddhist, Sikh or Jaina religion or persons professing the Hindu religion in any of its forms or developments including Virashaivas, Lingayats, Adivasis, followers of Brahmo, Prarthana, Arya Samaj and the Swaminarayan Sampraday shall be deemed to be Hindus.

ANALYSIS AND CONCLUSION

11. Section 2(d) of the PCR Act defines a place of public

worship. Under Section 2 (d) (ii) a privately owned place of worship

which is allowed by the owner to be used as a place of public worship is

included. In order to constitute an offence under Section 3 (b) of the

PCR Act, the accused appellants must have prevented the

witnesses/aggrieved persons from offering worship or worshipping in a

place for public worship. So a careful perusal of the evidence of the

witnesses is necessary to find out if the place where the occurrence

allegedly took place is a place of public worship.

12. The prosecution has neither proved ownership of the temple or

proved whether it was a private temple or a place of public worship. But

during cross examination, P.W.3 has admitted that the temple belongs to

the family of the accused persons. P.W.4 has also stated that the temple

is the family deity of the accused persons and before the occurrence they

used to offer puja in the temple on Puja days.

13. No independent witness has been examined in the case,

though P.W.4 says fifty persons had gathered to offer puja and they had

intimated the gentlemen about the quarrel. P.W.5 has stated that he

belongs to Pano scheduled caste and offered puja on that date

14. P.W.2 and P.W.4 have stated that they have never

voluntarily entered the temple and none of the witnesses have stated that

the owner has allowed the temple to be used as a place for public

worship.

15. P.W.1 has said that he was sitting near the temple and

P.W.3 has stated while he was going to the temple, when the altercation

took place. P.W. 4 says he was in his house near the temple and went to

the spot on hearing noise. P.W. 5 says that he and others were standing

on the path, when wife of Hari came carrying water. So the actual place

where the altercation took place is doubtful. No spot map has been

prepared by the I.O., which was essential.

16. From the evidence of P.W 6 the , the I.O, it is apparent that

P.W.1 has not stated before him that he was sitting near the temple or

that wife of Harihar asked Anirudha to get down from the temple

verandah. He has stated that P.W.5 has stated the accused persons

abused P.W.1, P.W.2, and P.W.3, but he ascertained the previous acts

from others. P.W.5 has not stated about the entire abuse by appellant

before the police and he had not stated before the police and that the

appellants gave pushes to Muktikanata, Babaji and Babula.

17. P.Ws have stated that the appellants used abusive language

against them, but the appellants have been acquitted of the offence under

Section 3 (1) (x) of the SC and ST (PoA) Act as it found that it was not

with intention to insult or humiliate the witnesses but during course of

an altercation.

18. The genesis of the incident is that wife of appellant No.2

had asked some of the witnesses to move out of the way as she was

carrying water to the temple. This led to an altercation. During the

altercation the witnesses were allegedly abused and there was some

tussle between them.

19. The temple was the private temple of the appellants. There

is no material to show that they were allowing the public to worship

there or for that matter were preventing the public from worshipping

there. This is because P.Ws. 2 and 4 have stated they have never entered

the temple voluntarily and P.W.3 that fifty persons were waiting to offer

prayers and P.W. 4 has stated that he has offered prayers that day.

20. The relations between the P.Ws. and the appellants were

strained as P.W. 3 and P.W. 4 have stated that they are were staying on

the embankment of the tank near the temple belonging to the appellants

by creating temporary structures and P.W.3 has stated that they were

earlier cultivating the land of the appellants but just before the

occurrence, the accused persons did not allow them to cultivate their

lands.

21. In view of the above features and shortcomings in the

prosecution case the evidence of witnesses, I am not satisfied that the

prosecution has proved the commission of the offence under Section 3

(b) of the PCR Act by the petitioners beyond reasonable doubt. So the

impugned judgment is liable for interference.

22. The judgment dated 20.05.1998 of the learned Special

Judge, Balasore in Special Case No.27 of 1996 convicting the appellants

under Section 3(b) of the PCR Act is accordingly set aside.

23. The Criminal Appeal is allowed. As the appellants are on

bail, their bail bonds be discharged.

24. Trial Court records be sent back to the learned trial court

alongwith a copy of this judgment, after retaining a scanned copy of the

TCR.

......................

(Savitri Ratho) Judge Orissa High Court, Cuttack Dated 30th May, 2025/RKS

CRAHIGH COURT

Date: 31-May-2025 19:11:22