[Cites 10, Cited by 0]

Orissa High Court

Subha Bastia vs State Of Orissa on 19 February, 2026

        THE HIGH COURT OF ORISSA AT CUTTACK

                       CRA No.275 of 1995

(In the matter of an application under Section 374 of the Criminal
Procedure Code, 1973)


Subha Bastia                   .......                     Appellant

                                 -Versus-

State of Orissa                       .......               Respondent

For the Appellant : Mr. Abhas Mohanty, Advocate For the Respondent : Mr. Aurobinda Mohanty, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 10.02.2026 :: Date of Judgment: 19.02.2026

S.S. Mishra, J. The present Criminal Appeal, filed by the appellant

under Section 374 of Cr.P.C. is directed against the judgment and

order dated 22.09.1995 passed by the learned Sessions Judge-cum-

Special Judge, Balangir in G.R. Case No.53 of 1994 (T.R. No.3 of

1994), whereby the appellant has been convicted for the offence

under Section 3(1)(x) of the SC & ST (PoA) Act and on that count, he was sentenced to undergo R.I. for six months and to pay a fine of

Rs.500/-, in default, to undergo further R.I. for one month.

2. Heard Mr. Abhas Mohanty, learned counsel for the appellant

and Mr. Aurobinda Mohanty, learned Additional Standing Counsel

for the State.

3. The prosecution case, in brief, is that P.W.1, who belongs to

the Ganda caste, on 01.02.1994 at about 5.00 P.M., while returning

from the village tank, was intercepted by the accused, stated to be a

member of the Dumal caste, near the village clubhouse. It is alleged

that the accused suddenly caught hold of the collar of his shirt,

abused him by referring to his caste as "Ganda", and pushed him. As

a result of such push, P.W.1 fell to the ground and became

unconscious. Thereafter, Banamali Podha (P.W.3) and Kaibalya

Chhatria (P.W.4) administered first aid by sprinkling water on his

face, upon which he regained consciousness.

On the following day, i.e., on 02.02.1994, P.W.1 went to the

Police Station and submitted a written report, which was scribed by

one Saheb Mahakud. On the basis of the said report, P.S. Case No.9

of 1994 was registered. The then Junior S.I. of Luisinga P.S. (P.W.5),

having been directed, took up investigation. In the course of

investigation, he examined the complainant at the Police Station,

visited the spot, prepared the spot map (Ext.2), and examined other

witnesses. On 24.02.1994, he arrested the accused and forwarded

him to Court in custody. Upon completion of investigation, he

submitted charge-sheet against the accused person. On the stance of

complete denial and claim of trial, the appellant was put to trial.

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

five witnesses in total. P.W.1 is the victim himself, who lodged the

F.I.R. at the concerned Police Station. P.W.2 is the wife of the victim.

P.Ws.3 and 4 claim to be eye-witnesses to the alleged occurrence.

P.W.5 was the Investigating Officer, who conducted the investigation

and, upon completion thereof, submitted the charge-sheet against the

accused persons. D.W.1, namely Paramananda Meswa, has deposed

that P.Ws.1, 3 and 4 were members of the Janata Dal party, whereas

the accused was an active worker of the Congress party, thereby

suggesting the existence of political rivalry between the parties.

5. The sole appellant in the present case stood charged for the

commission of offence under Section 3(1)(x) of the SC & ST (PoA)

Act. The prosecution has heavily relied upon the evidence of the

victim (P.W.1), who inter alia, has stated that on 01.02.1994 at about

5.00 P.M., when he was coming to the Basti, the accused came from

the opposite direction and suddenly caught hold of the collar of his

shirt and abused him in the name of caste and gave a push, as a result

of which, he fell down on the ground and became senseless. Banamali

Podh (P.W.3) and Kaibalya Chhatia (P.W.4) gave him the first aid at

the spot by sprinkling water on his face. Thereafter, he reported the

matter to the police on the next date. One Saheb Mahakud was the

scribe of the F.I.R. on his dictation. However, Saheb Mahakud has not

been examined. In the cross-examination, the victim (P.W.1) has also

stated that at the time of occurrence, Kaibalya, Banamali and Bka

Bag, Makaru Meswa and many other persons were present. Except

P.Ws.3 and 4, nobody has been examined by the prosecution.

P.W.2 is the wife of the victim, who in her deposition has

stated that the occurrence took place on a Tuesday in the previous

year at about 5:00 P.M., when the accused came to their house and

enquired about her husband, uttering words to the effect "Ganda

kenade gala, taku murder karibi." Upon she informing him that her

husband was not present, the accused proceeded towards the basti.

She further deposed that at about 6:00 P.M., when her husband

returned home, he informed her that the accused had caught hold of

his collar, abused him and pushed him.

P.W.3 also gave the similar narration of the incident. P.W.4

although narrated the incident like P.Ws.1, 2 and 3, however, he has

improvised his version to the extent that the accused person had

abused P.W.1 saying "Sala Ganda". This part of the version has not

got any support from any other witnesses.

P.W.5 is the I.O. of the present case. He has not stated anything

regarding the caste of either the victim or the accused. He has also

admitted that no caste certificate was obtained from any sources. In

the cross-examination, he has very categorically stated as under:-

"4. P.W.1 had not stated before me nor in the F.I.R. that the accused gave him a push and he fall down on the ground but he had stated before me and the F.I.R. that the accused dragged him holding the collar of his shirt. He has not stated before me that at the spot he lost his sense. He had not stated before us that when P.W. 3 and P.W.4 sprinkled water he regained his sense. He has not stated before me in the term that, the accused is Dumal by caste and I am Ganda by caste"

but he has stated before me and in the F.I.R. that MADUR CHOD GANDA TO CHOTA JATI HOEE MO SANG TAKKAR DEJCHU"."

6. It is seen from the record that the prosecution has not brought

any documentary evidence to establish that the victim belongs to

either Scheduled Caste or Schedule Tribe. Two documents in toto

have been exhibited. Ext.1 is the plain paper of F.I.R. and Ext.2 is the

spot map. The aforementioned material available on record has been

appreciated by the learned trial Court to give the following findings:-

"7. When P.W.1 supports his own case as to the fact that when on 1.1.94 he was returning from the tank the accused met him on the road in front of the Club house of their village and there all on a sudden he caught hold of the collar of his shirt, pushed him attributing as 'ganda' by caste and on account of giving push he fell down on the ground. This evidence is amply supported and corroborated by the evidence of P.Ws. 3 and 4. It is stated by them that they had seen while P.W.1 was coming from the Bandha (tank) the accused met him on the road in front of their Club house and there he gave pushes on P. W.1 on his neck and abused him in filthy language attributing him as 'ganda' by casts. When it is stated by P. W.3 that at that time he was present in the verandah of his house close to the spot, P.W.4 says that at that time he was sitting in the Club house. Admittedly they have been shown as witnesses to the incident in the F.I.R. There appears no major contradiction nor inconsistency in their evidence so as to render their version unreliable and untrustworthy. Though P. W. 3 admits that there was a 107 Cr.P. C. proceeding against him on the report of the accused but there is no such enmity between P.w. 4 and the accused. A faint attempt has been made to establish the fact that P. Ws. 1, 3 and 4 are the members of Janata Dal, the accused is an active worker of Congress through D. W. 1. But it is elicited from the cross--examination of P.W. 3 that he is a non-party man. P. W 4 categorically denies the fact that he is in the anti-group of the accused. True, P.W. 5 the I.O. admits in the cross-examination that there was political rivalry between the parties but the rivalry and the enmity between the parties being double edged weapon it alone is not sufficient to treats the prosecution case as doubtful.

8. Much is contended by the learned advocate for the defence that there is delay of 24 hours in lodging the

F.I.R. and there is also delay in sending the F.I.R. to the court which are not explained, The above unexplained delay in lodging the F.I.R. and sending the F.I.R. to the court provides a legitimate basis for suspicion to the prosecution case. On this context he cites two case laws. One is reported in AIR 1976 S.C. at page 2423 (Iswar Singh vrs. State of U.P.) and another is reported in AIR 1973 S.C. 501 (Thulia Kali vrs.. State of Tamil Nadu). When the first one is relating to the delay in sending the F.I.R. to court, the second one is relating to the delay in lodging the F.I.R. When in the first there was delay of two days in sending the F.I.R. to the Magistrate and in the second there was 20 hours delay in lodging the F.I.R. Undisputedly the above two case laws are relating to the case of murder. In the latter case law the spot was two miles from the Police Station. But in the case in hand it is evident from the formal F.I.R. that when the F.I.R. was lodged on 2.2.94 at 6.30 P.M. it was despatched from the P.S. on the following day. It is evident that the Luisinga P. S. is 15 Kms. from the spot, When the occurrences took place on 2.1.94 at about 5.00 P.M. the F.I.R. was lodged on the following day of course at 6.30 P.M. Regard being had to the nature of the case, such delay being not inordinate delay rather reasonable delay, it does not provide a legitimate basis for suspecting that the F.I.R. vas recorded much later than the stated date, nor there would be a reasonable inference that there is embellishment or concoction in the story of the F.I.R., rather such reasonable delay in lodging the F.I.R. at the P.S. and sending the F.I.R. to the court suggest that there is no over interestedness in the matter. Things have been allowed to be done in usual manner which speaks the truth of the incident."

7. Mr. Mohanty, learned counsel for the appellant has vehemently

contended that the entire case is motivated and the appellant has been

falsely implicated due to political rivalry. He has submitted that

P.Ws.1, 3 and 4 have admitted that they belongs to a particular

political party and the appellant belonging to an opposite political

party. Even P.W.5, the I.O. has admitted in his testimony that political

rivalries between the parties are eminent. He further contended that

the prosecution has miserably failed to prove the essential ingredient

to attract the offence under Section 3(1)(x) of the SC & ST (PoA)

Act. The prosecution has primarily failed to establish, by cogent and

reliable evidence that the victim belongs to a Scheduled Caste or

Scheduled Tribe. Likewise, there is no material on record to show that

the accused does not belong to a Scheduled Caste or Scheduled Tribe

community. There was no intention to insult the victim and the overt

act attributed to the accused is aimed at humiliating the victim

because he belongs to a particular caste etc. He has also highlighted

that in the absence of any documentary evidence, establishing the

caste of the victim, no offence under the SC & ST Act could be

attracted. He made strenuous attempt to point out the contradictions in

the testimony of the witnesses and improvements made by them. To

substantiate his case, he has relied upon various judgments of this

Court as well as the Hon'ble Supreme Court.

8. Mr. Mohanty, learned counsel for the State has also taken me to

the evidence of P.Ws.1, 3 and 4. He submitted that reading of the

evidence of these three witnesses makes the prosecution case very

clear and unambiguous. No further deliberation is required if the

evidence of these witnesses are taken at its face value. He has also

countered the submission made by the learned counsel for the

petitioner in so far as the contradictions in the evidence of prosecution

are concerned stating that the contradictions are not fatal to the

prosecution.

9. I have carefully taken into consideration the entire materials

available on record and also the judgment of various courts in regard

to the issue raised by both the counsels. Two issues are required to be

dealt with so as to appreciate the present case in right prospective.

First issue is; in the absence of any credible evidence either orally or

in the form of documentary regarding the caste status of the victim,

can the offence for which the appellant has been charged could be

said to be established. It is the obligation of the prosecution to

establish not only that the victim belongs to either SC or ST category

but also needs to establish that the accused is not belonging to either

SC or ST category. Except the ocular version of the victim (P.W.1)

stating that he belongs to "ganda", nothing has come on record to

suggest that the caste of ganda belongs to either SC or ST category.

From the I.Os. evidence, it is further clear that no documentary

evidence has been collected to establish that the caste "ganda"

belongs either SC or ST category. Even in the ocular version, the

witnesses have not stated that the accused belongs to a general caste.

This Court in the case of Khageswar Kunar & Ors. vrs. State of

Orissa1 has held as under:-

"5. Admittedly, in this case no such documentary evidence has been tendered proving the caste of the informant and her brother (P.Ws. 1 and 6) that they are the members of Scheduled Caste. It is stated in the FIR that the informant was abused by accused Khageswar and he had hurled the abusive words those are "Sali Dhobani Ghoda Gehi etc." The trial court as it appears has taken into consideration that as the accused persons nowhere claim of the exemption of being member of SC and ST which provides them immunity of prosecution under the Act, on the face of the evidence of P.W.1 receiving corroboration from the FIR she is to be held to be a member of Scheduled Caste as prosecution version is that she was insulted by calling her caste. The view of the trial court that simply because of the evidence on record that accused Khageswar abused P.W. 1 stating as Dhobani, the same is enough to hold P.W. 1 as a member of Scheduled Caste, in my considered view is not sustainable in the eye of law in a prosecution for offence under the Act. The prosecution is always under legal obligation to prove that the victim belongs to a caste which specifically finds place in the list of Scheduled Caste or Scheduled Tribe as the case may be in any of the entry specified in the Presidential Order promulgated in exercise of the power conferred by clause-l of Article 342 of the Constitution of India. Here accepting for a moment that the accused Khageswar had abused informant (P.W. 1) uttering Dhobani, then also Dhobani is not found to be there in any of the entries in the Constitution (Scheduled Caste) Order, 1950 as amended from time to time. Therefore,

2015 (II) ILR-CUT-168

this Court is led to accept the submission of the learned counsel for the appellants that here is a case where the foundational fact to attract any of the offences provided under the Act as regards the victim being a member of Scheduled Caste has not been established by acceptable evidence when it is specifically denied by the accused persons during their examination under Section 313 of the Code of Criminal Procedure and when even P.W. 1 has not stated her caste on oath that as such that she is a member of Scheduled Caste community."

The court held similar view in judgments of Sahadev Karmi v.

State of Orissa2, Daitari Prasad Sahu and others v. Harihara

Behera and another3, and Ajay Kumar Singh v. State of Orissa4,

Budha @ Prasanna Kumar Pradhan v. State of Orissa5 wherein this

Court has consistently held that for an offence under the relevant

provisions of the SC and ST (PoA) Act to be made out, the

prosecution must clearly establish both the caste identity of the parties

and the specific intention of the accused to commit the act on account

of the victim's caste.

The second issue which is emanating from the record is

regarding the intention of the accused while committing the alleged

offence. The evidence does not suggest that the accused-appellant has

pushed the victim and scolded him by abusing him "ganda". He has

not done it with an intention that the victim belongs to either SC or

ST category. In that regard, the judgment of this Court cited by Mr.

Mohanty, learned counsel for the appellant in the case of Pradeep

Sahu vrs. State6 is relevant. Paragraph-14 of the said judgment 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."

The Hon'ble Supreme Court also in the matter of Dashrath

Sahu vrs. State of Chhattisgarh7, has held as under:-

"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

S.L.P. (Crl.) Nos. 6367 of 2023

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."

It is also a fact that the case has not been investigated by the

officer above the rank of DSP as provided under the S.C. and S.T.

(Prevention of Atrocities) Rules, 1995 which was already in force

when the act and charge-sheet filed.

10. In view of the aforesaid settled principle of law as discussed

above, it is manifestly clear that the prosecution has failed to establish

its case beyond all reasonable doubt. The prosecution has also failed

to bring home the essential ingredient required to establish an offence

under Section 3(1)(x) of SC & ST (PoA) Act. The case of the

appellant is directly covered by the judgment as discussed above.