THE HIGH COURT OF ORISSA AT CUTTACK

CRLA No.575 of 2010

CNR No. ODHC010027542010

(In the matter of an application under Section 374 of the Criminal

Procedure Code, 1973)

B. Tirupati Rao and others ……. Appellants

-Versus-

State of Odisha ……. Respondent

For the Appellants : Ms. Rakhi Mishra, Amicus Curiae

For the Respondent : Mr. Raj Bhusan Dash, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 06.08.2026 :: Date of Judgment: 25.08.2026

S.S. Mishra, J. The present Criminal Appeal is directed against the

judgment and order dated 18.11.2010 passed by the learned Additional

Sessions Judge-cum-Special Judge, Jeypore in Criminal Trial Case

No.01 of 2010, whereby the appellants have been convicted for the

Page 2 of 22

offences punishable under Sections 294/506/34 of I.P.C. read with

Section 3(1)(x) of the SC & ST (PoA) Act. On that count, they have

been sentenced to undergo S.I. for three months each for the offences

under Sections 294/506 of I.P.C. and S.I. for six months and to pay a fine

of Rs.1,000/- (rupees one thousand) each, in default to undergo S.I. for

one month for the offence under Section 3(1)(x) of the SC & ST (PoA)

Act.

2. The present appeal has been pending since 2010. When the matter

was called for hearing continuously, none appeared for the appellants.

Therefore, on 16.12.2025, this Court requested Ms. Rakhi Mishra,

learned counsel, who was present in Court to assist the Court as Amicus

Curiae. She has readily accepted the same and after obtaining entire

record, assisted the Court very effectively. This Court records

appreciation for the meaningful assistance rendered by Ms. Mishra.

3. Heard Ms. Rakhi Mishra, learned Amicus Curiae for the

appellants and Mr. Raj Bhusan Dash, learned Additional Standing

Counsel for the State.

Page 3 of 22

4. The prosecution case, in brief, is that on 15.06.2008 at about 10.00

a.m., in village Jumunda, the accused persons abused and threatened the

complainant, Manohar Harijan, in front of his house near a place locally

known as „Uali Gada‟ (heap of garbage), by uttering words such as

“Damba Sala Magiha”, “Eigaonre Rakhai Debuni” and “Jeevanare

Maridebu”. The said utterances were allegedly heard by the co-villagers,

namely, Ghasi Harijan and Dhobuli Harijan. The complainant belongs to

the „Damba‟ caste, which is a Scheduled Caste, whereas the accused

persons belong to the general caste. The dispute allegedly arose on

account of dumping of waste materials and garbage by the accused

persons over a piece of land situated near the dwelling house of the

complainant.

It is further alleged that, being threatened with death by the

accused persons, the complainant was frightened and, on being

addressed by derogatory words such as “Damba Magiha” in the presence

of others, felt humiliated. He accordingly submitted a written report

before the I.I.C., Borigumma Police Station, on the following day. As no

action was taken thereon, the complainant, on 25.06.2008, filed a

Page 4 of 22

complaint petition before the learned S.D.J.M., Jeypore, which was

registered as I.C.C. No.71 of 2008. The learned S.D.J.M., Jeypore, after

recording the initial statement of the complainant and conducting an

enquiry under Section 202 of the Cr.P.C., took cognizance of the

offences punishable under Sections 294, 506 and 34 of the I.P.C., read

with Section 3(1)(x) of the SC & ST (PoA) Act. The order taking

cognizance was challenged by the accused persons before this Court in

Criminal Revision No.957 of 2009. The said revision was dismissed and

the order taking cognizance was upheld. Consequently, the present case

came to be registered before the learned Special Court and the trial

proceeded accordingly.

The defence plea is one of complete denial. The accused persons

have pleaded that the allegations are false and frivolous and that they are

innocent. It is their further case that, owing to previous enmity between

the parties over the disputed piece of land, which the complainant

allegedly intended to grab by dispossessing the accused persons, the

present false case has been foisted against them.

Page 5 of 22

5. In order to substantiate its case, the prosecution examined five

witnesses in all. P.W.1 is the complainant himself. P.Ws.2, 4 and 5 were

stated to be eyewitnesses to the occurrence, whereas P.W.3 was the

Advocate, who drafted the complaint petition. In support of its defence,

the accused persons examined one witness, who deposed regarding the

strained relationship and previous enmity between the parties.

6. The learned trial Court after perspicacious analysis of evidence,

recorded the conviction and sentence as has been mentioned above

against the appellants. Being aggrieved by the said judgment of

conviction and order of sentence, the present appeal has been preferred.

7. Ms. Mishra, learned Amicus Curiae appearing for the appellants,

has extensively taken this Court through the evidence adduced by the

prosecution and, from the materials on record, highlighted the existence

of previous enmity between the two groups. It is submitted that as many

as seven proceedings are pending between the parties in relation to the

title and possession of a piece of land, which has been the subject matter

of litigation between them. The materials on record reveal that the

following litigations are pending between the parties:-

Page 6 of 22

(1) P.W.1, P.W.2 and others filed Civil Suit No.02 of 2008

before the learned Civil Judge (Junior Division), Jeypore,

seeking a decree and declaration of possessory title,

confirmation of possession and permanent injunction

restraining appellant No.1 and others from entering upon or

trespassing into the suit land.

(2) Prior to filing of the aforesaid civil suit, P.W.2 and others

had initiated a proceeding under Sections 144/145 of the

Cr.P.C., registered as M.C. No.93 of 2006. The said

proceeding was instituted on 20.12.2006 against the accused

persons, wherein certain interim orders were passed to prevent

breach of peace and the appellants were restrained from

forcibly entering upon the disputed land. The said interim

protection, however, came to an end on 24.03.2007 by efflux

of time.

(3) On 20.06.2007, appellant No.1 initiated a proceeding under

Sections 144/145 of the Cr.P.C., registered as M.C. No.52 of

2007. In the said proceeding, the disputed land was attached

Page 7 of 22

under Section 145 of the Cr.P.C. by the Tahasildar-cum-

Executive Magistrate, Borigumma.

(4) Alleging violation of the interim order by the complainant

party, appellant No.1 also filed a petition under Section 188 of

the I.P.C. in M.C. No.52 of 2007, contending that the

complainant party had violated the order of restraint by

forcibly entering upon the disputed land for the purpose of

planting vegetables.

(5) Ghasi Harijan, the father of the complainant and P.W.2,

had earlier instituted two complaint cases, namely, I.C.C.

No.164 of 2006 and I.C.C. No.127 of 2007, against all the

accused persons.

(6) On 17.12.2006, I.C.C. Case No.104 of 2007 was instituted

by the complainant against appellant No.1 in respect of certain

allegations. Upon investigation, the police ultimately

submitted charge-sheet only for the offence punishable under

Sections 294/34 of the I.P.C.

Page 8 of 22

(7) P.W.1, Manohar Harijan, also instituted I.C.C. Case No.71

of 2008 against the accused persons alleging theft of coconuts

from trees standing on the disputed land. Upon investigation,

the police submitted a closure report in the said case.

Apart from the aforementioned proceedings, the cross-

examination of the prosecution witnesses also indicates the existence of

certain other cases between the parties, though the particulars thereof

have not been brought on record.

8. The aforesaid litigations between the parties clearly demonstrate

that there has been persistent hostility and enmity between the two

groups, resulting in institution of several proceedings and cases,

including cross-cases, against each other. In the backdrop of such

admitted and continuing dispute, the evidence adduced in the present

case requires to be examined with due caution. More particularly, the

allegation of charges under Section 3(1)(x) of the SC & ST (PoA) Act,

which requires independent and careful scrutiny. Accordingly, the

evidence relating to the allegation of offence under the SC & ST (PoA)

Act is being considered first.

Page 9 of 22

9. Upon analysing and appreciating the evidence on record, the

learned trial Court found that the complainant belonged to the Damba

caste, a Scheduled Caste, as evidenced by Ext.1. It further found that the

accused persons had addressed the complainant by uttering the caste-

based expression “Sala Damba Magiha” in public view, which was

intended to insult and humiliate him on account of his caste. The learned

trial Court further found the evidence of the prosecution witnesses in this

regard to be cogent, convincing and reliable, and observed that the

defence had failed to discredit their testimony in cross-examination.

Accordingly, it held that the essential ingredients of the offence under

Section 3(1)(x) of the SC & ST (PoA) Act stood established and that the

prosecution had proved the charge against the accused persons beyond

reasonable doubt. The findings returned by the learned trial Court reads

thus:-

“With regard to the previous enmity between the

parties, learned counsel for the State submitted that

enmity is a double edged weapon. As because there

was enmity between the parties over that piece of

land, the case in hand cannot be thrown to dustbin.

What is required to be seen is about the probability

of such happenings from the giving evidence and

Page 10 of 22

given circumstances. It is human psychology to

protest for dumping of waste materials and garbage

over a land on which the person is interested. Since

both the parties are interested for that particular

piece of land, obviously the complainant tried to safe

guard the land and protect the land being misused by

the accused persons till the Civil Court decides the

right title and interest of the parties Therefore,

honestly, he raised voice not to dump waste

materials making the atmosphere / area obnoxious

which would cause health hazards. There is nothing,

as to why the accused persons should react with

annoyance using the language as Sala Damba

Magiha. It is not accepted on the part of educated

person, in civilised society when there is

constitutional mandate that every citizen of India has

right to live with dignity and honour like a human

being. By dumping garbage and waste materials in

front of the house of the complainant, the

complainant and his family members would be

relegated to animal existence. Uttering Sala Damba

Magiha certainly humiliates the members of the

Damba caste. The complainant himself has certainly

felt humiliated as such uttering which were made

within the public view. For better appreciation

section 3(1)(x) of the Atrocities Act is quoted below

which reads thus :-

"Whoever, not being a member of a

Scheduled Caste or a Scheduled Tribe

intentionally insults or intimidates with

intent to humiliate a member of a

Scheduled Caste or a Scheduled Tribe

in any place within public view."

Therefore, it certainly comes within the ambit of

section 3(1)(x) of the Atrocities Act. Therefore,

Page 11 of 22

Hon'ble High Court of Orissa have upheld the order

of cognizance under that section including section

294/506 of I.P.C. vide order dated 5.12.2009 in

Criminal Revision No. 957/2009. When the question

of enmity between the parties over that piece of land

is there, court is to be very cautious and careful in

appreciating/ evaluating the evidence. When there is

clear, cogent and convincing evidence and defence

could not shake or demolish in cross examination so

as to discard, court is bound to accept the evidence

on hand and act upon accordingly. In the instant case

I do not find anything to disbelieve the evidence of

the prosecution witnesses as there is no

exaggeration, concoction or embellishment.

Therefore, enmity between the parties has nothing to

play in the present circumstances. Might be they are

litigating over that piece of land before the

Tahasildar, Borigumma and Civil Court at Jeypore.

That does not falsify the present occurrence in toto.

Had the complainant wanted to put the accused

persons into trouble and behind the bars he could

have brought much more serious allegations like

making an attempt to commit murder or even for

that matter rape etc. Instead of doing that he only

confined himself to the offences of using of obscene

language, criminal intimidation and insulting him

humiliating his caste. Admittedly, the complainant

belongs to Damba caste as is evident from Ext.1, the

caste certificate issued by the Tahasildar,

Borigumma. Though suggestion has been given by

defence that he has embraced Christianity, no proof

to that effect has been laid by defence. Hence, it is

held that the complainant is a Damba by caste which

comes under the constitution (Scheduled Caste)

Order, 1950. There is no exaggeration or window

Page 12 of 22

dressing. Therefore the concept of enmity does not

come to fair play.

8. In view of the discussions made supra I find

cogent, convincing, reliable and clinching evidence

against the accused persons. The evidence of the

prosecution witnesses do inspire confidence in the

mind of court. Hence, it is held that prosecution has

well proved the charges against the accused persons

beyond reasonable doubts. In the result, all the three

accused persons are held guilty of the offences

punishable under Section 294/506/34 I.P.C. read

with section 3(1)(x) of Scheduled, Castes and

Scheduled Tribes (Prevention of Atrocities) Act and

they are convicted thereunder. I find no convincing

reason to extend the benefit of Probation of

Offenders Act to the convicts as they are in litigating

terms. Therefore, there is need to hear them on a

question of sentence.”

10. P.W.1, the complainant, in his deposition has stated that, about

two years prior to the date of his examination, at around 10.00 a.m., a

boy aged about 10 to 12 years came to answer the call of nature near a

heap of garbage situated in front of his house. When he protested against

the same, the accused persons allegedly abused him by referring to his

caste and uttered, “Are Damba Maghia, Jeevanare maridebu, Tote a

Gaonre Rakhidebi Nahi.” He stated that he felt humiliated and insulted

on account of the said utterances. He further deposed that, on the

Page 13 of 22

following morning, he lodged an F.I.R. before the police. As no action

was taken by the police, he, through P.W.3, an Advocate, instituted the

complaint case before the learned Court.

P.W.2, while narrating the occurrence, deposed that on the date of

occurrence at about 10.00 a.m., the incident took place near the heap of

garbage situated in front of the house of P.W.1. According to him, the

accused persons used to dump cow dung and other waste materials in

front of the house of the complainant. On the date of occurrence, a boy

from the family of the accused came to the said place to answer the call

of nature, which was objected to by P.W.1. Thereafter, the accused

persons allegedly abused P.W.1 by uttering, “Are Damba Maghia, to

Bapara Jaga Nahi, Maripitikari Gaon Re Khadidebu.”

P.W.4, while deposing about the same occurrence, stated that the

accused persons abused the complainant by uttering, “Damba Giapa,

Tora Maku Nebi, Tora Maipa Ku Nebi, Jeevanare maridebi.” Thus, the

utterances attributed to the accused persons by P.W.4 are materially

different from those stated by P.Ws.1 and 2.

Page 14 of 22

The version of P.W.5, however, is entirely different from the

testimony of the aforesaid witnesses. In his deposition, he has stated as

under:-

“About two years age in the month of Car festival,

at about 8 A.M. in the village Danda on the public

road the occurrence took place. The Accused

persons were dumping garbage infront of the house

of the Manohar Harijan. Manohar protested to that

and asked them not to do so. The accused persons

did not listen to him. On the other hand they

scolded him as a “Domba Maghiya” and threatened

to kill him. Out of fear Manohar entered into his

house.”

11. It is evident from the testimony of the prosecution witnesses that

the abusive expressions allegedly used by the appellants, referring to the

caste of the complainant (P.W.1), are not consistent and materially differ

from one witness to the another. In view of such material discrepancies

in the evidence, coupled with the fact that several litigations are pending

between the parties before different forums, the applicability of the

principles laid down by the Hon‟ble Supreme Court in a case arising in a

similar factual context assumes significance. In Hitesh Verma v. State of

Page 15 of 22

Uttarakhand and another, reported in Criminal Appeal No.707 of 2020,

the Hon‟ble Supreme Court, in paragraph-18, has held as under:-

“18. Therefore, offence under the Act is not

established merely on the fact that the informant

is a member of Scheduled Caste unless there is an

intention to humiliate a member of Scheduled

Caste or Scheduled Tribe for the reason that the

victim belongs to such caste. In the present case,

the parties are litigating over possession of the

land. The allegation of hurling of abuses is against

a person who claims title over the property. If

such person happens to be a Scheduled Caste, the

offence under Section 3(1)(r) of the Act is not

made out.”

The aforesaid observation was made by the Hon‟ble Supreme

Court having regard to the principles enunciated in its earlier decisions in

Swaran Singh & Ors. vrs. State through Standing Counsel & Ors.

1

,

Khuman Singh v. State of Madhya Pradesh

2

. Applying the said

principles to the facts of the present case and upon a careful assessment

of the evidence on record, this Court is of the considered view that the

prosecution has failed to establish the essential ingredients of the offence

1

(2008) 8 SCC 435

2

2019 SCC Online SC 1104

Page 16 of 22

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

evidence, particularly in the backdrop of the longstanding dispute

between the parties in respect of the subject land, does not inspire

sufficient confidence to sustain the conviction under the said provision.

Accordingly, the conviction recorded by the learned trial Court against

the appellants of the charges under Section 3(1)(x) of the SC & ST

(PoA) Act cannot be sustained and is hereby set aside. The appellants are

acquitted for the charge of the offence under Section 3(1)(x) of the SC

and ST (PoA) Act.

12. In so far as the other offences are concerned, on a conjoint reading

of the evidence of the prosecution witnesses and upon consideration of

the findings recorded by the learned trial Court, this Court finds no

infirmity in the appreciation of evidence or the conclusions arrived at by

the learned trial Court. The findings of guilt recorded against the

appellants for the offences punishable under Sections 294 and 506 of the

I.P.C. are, therefore, found to be well-founded. Accordingly, the

conviction of the appellants for the offences under Sections 294 and 506

of the I.P.C. is hereby affirmed.

Page 17 of 22

13. At the outset, Ms. Mishra, learned Amicus Curiae appearing for

the appellants, after advancing her submissions for some time, fairly

submitted that she would confine her challenge to the quantum of

sentence. It was submitted that the present appeal, preferred in the year

2010, has remained pending for more than fifteen years. Learned Amicus

Curiae further submitted that the occurrence took place in the year 2008,

when appellant No.1 was about 45 years of age, appellant No.2 was 57

years and appellant No.3 was 39 years. At present, appellant No.1 is

aged about 63 years, appellant No.2 is 75 years and appellant No.3 is 57

years. It was contended that, during the intervening period, the appellants

have settled in life and have been leading a stable and law-abiding life.

In such circumstances, it was submitted that requiring the appellants to

undergo the remaining period of sentence after such a long lapse of time

would serve no meaningful purpose.

Learned counsel further submitted that the appellants have already

undergone incarceration for a period of thirty-nine days and have no

criminal antecedents. It was also submitted that no other criminal case is

stated to be pending against them. According to learned counsel, the

Page 18 of 22

appellants have, over the years, remained integrated with society and

have been leading settled family lives. In such circumstances, their

incarceration at this distant point of time would neither advance the ends

of justice nor serve any meaningful penological objective. Accordingly,

it was prayed that, having regard to the long passage of time, the nature

of the offence, the antecedents of the appellants, and the overall facts and

circumstances of the case, this Court may extend to the appellants the

benefit of the provisions of the Probation of Offenders Act, 1958.

14. The record reveals that the occurrence relates back to the year

2008. The appellants were convicted by the impugned judgment and

order of sentence passed by the learned trial Court and the present appeal

has remained pending since the year 2010. Considerable time has

elapsed since the occurrence and much water has flown under the bridge.

It is further not in dispute that they have no criminal antecedents and no

other criminal case is stated to be pending against them. In the

interregnum, they have led a settled family life and remained integrated

with society. In such circumstances, this Court is of the considered view

that this is a fit case where the benefit contemplated under the Probation

Page 19 of 22

of Offenders Act, 1958 deserves to be extended to the appellants. The

Hon'ble Supreme Court in Chellammal and Another v. State

represented by the Inspector of Police

3

, has held that it is the statutory

obligation of the sentencing Court to consider the applicability of the

provisions of the Probation of Offenders Act and that any refusal to

extend such benefit must be supported by reasons. In the facts and

circumstances of the present case, the submission advanced by the

learned counsel for the appellants seeking extension of the benefit under

the Probation of Offenders Act merits consideration.

15. The Hon'ble Supreme Court in Chellammal (supra) has

elaborately explained the scope, object and significance of the Probation

of Offenders Act, 1958 while considering the question of extending the

benefit of probation to a convict. The Hon'ble Supreme Court has

observed as follows:

“26. On consideration of the precedents and based on a

comparative study of Section 360, Cr. PC and sub-section (1) of

Section 4 of the Probation Act, what is revealed is that the latter is

wider and expansive in its coverage than the former. Inter alia,

3

2025 INSC 540

Page 20 of 22

while Section 360 permits release of an offender, more twenty-one

years old, on probation when he is sentenced to imprisonment for

less than seven years or fine, Section 4 of the Probation Act enables

a court to exercise its discretion in any case where the offender is

found to have committed an offence such that he is punishable with

any sentence other than death or life imprisonment. Additionally,

the non-obstante clause in sub-section gives overriding effect to

sub-section (1) of Section 4 over any other law for the time being in

force. Also, it is noteworthy that Section 361, Cr. PC itself, being a

subsequent legislation, engrafts a provision that in any case where

the court could have dealt with an accused under the provisions of

the Probation Act but has not done so, it shall record in its

judgment the special reasons therefor.

27. What logically follows from a conjoint reading of sub-section

(1) of Section 4 of the Probation Act and Section 361, Cr. PC is that

if Section 360, Cr. PC were not applicable in a particular case,

there is no reason why Section 4 of the Probation Act would not be

attracted.

28. Summing up the legal position, it can be said that while an

offender cannot seek an order for grant of probation as a matter of

right but having noticed the object that the statutory provisions seek

to achieve by grant of probation and the several decisions of this

Court on the point of applicability of Section 4 of the Probation Act,

we hold that, unless applicability is excluded, in a case where the

circumstances stated in subsection (1) of Section 4 of the Probation

Act are attracted, the court has no discretion to omit from its

consideration release of the offender on probation; on the contrary,

a mandatory duty is cast upon the court to consider whether the

case before it warrants releasing the offender upon fulfilment of the

stated circumstances. The question of grant of probation could be

decided either way. In the event, the court in its discretion decides

to extend the benefit of probation, it may upon considering the

report of the probation officer impose such conditions as deemed

just and proper. However, if the answer be in the negative, it would

only be just and proper for the court to record the reasons

therefor.”

Having regard to the aforesaid legal position and considering the

facts of the present case, particularly the nature of the offence, the long

Page 21 of 22

lapse of more than sixteen years since the occurrence, the absence of any

criminal antecedents and the settled life presently being led by them, this

Court is of the considered opinion that the appellants deserve to be

extended the benefit contemplated under Section 4 of the Probation of

Offenders Act, 1958, instead of directing them to undergo the remaining

part of the sentence. Additionally, the case of the appellants is also

covered by ratio of the judgment of this Court in the case of Pathani

Parida & another vs. Abhaya Kumar Jagdevmohapatra

4

and Dhani @

Dhaneswar Sahu vs. State of Orissa

5

. In view of the aforesaid legal

position and the peculiar facts and circumstances of the case, this Court

is inclined to extend to the appellants the benefit contemplated under

Section 4 of the Probation of Offenders Act.

16. Hence, the present Criminal Appeal in so far as the conviction is

concerned is turned down. But instead of sentencing the appellants to

suffer imprisonment, this Court direct the appellants to be released under

Section 4 of the Probation of Offenders Act for a period of one year on

4

2012 (Supp-II) OLR 469

5

2007 (Supp.II) OLR 250

Page 22 of 22

their executing bond of Rs.5,000/- (Rupees Five Thousand) each within

one month with one surety each for the like amount to appear and

receive the sentence when called upon during such period and in the

meantime, the appellants shall keep peace and good behavior and they

shall remain under the supervision of the concerned Probation Officer

during the aforementioned period of one year.

17. With the above observations and directions, the Criminal Appeal

is partly allowed.

18. This Court acknowledges the effective and meaningful assistance

rendered by Ms. Rakhi Mishra, learned Amicus Curiae in this case.

Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/-

(Rupees seven thousand five hundred) to be paid as a token of

appreciation.

(S.S. Mishra)

Judge

The High Court of Orissa, Cuttack.

Dated the 25

th

August, 2026/ Swarna