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State of Orissa Vs. Rengsa Alias Chandi Chalan and Five ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberGovt. Appeal No. 14 of 1981
Judge
Reported in1985(I)OLR376
ActsProtection of Civil Rights Act, 1955 - Sections 3, 7 and 12; Code of Criminal Procedure (CrPC) , 1973 - Sections 378
AppellantState of Orissa
RespondentRengsa Alias Chandi Chalan and Five ors.
Appellant AdvocateP.K. Mohanty, Addl. Standing Counsel
Respondent AdvocateS.K. Mohanty, Adv.
DispositionAppeal dismissed
Cases Referred(Stats of Orissa v. Trinath Dash
Excerpt:
.....against the order of the subdivisional judicial magistrate, dharamgarh acquitting the respondents-accused persons of the charges under sections 3 and 7 of the protection of civil rights act, 1955 (hereinafter called the 'act'). 2. the prosecution case is that on 12.6.1978 at about noon, the harijans, who were members of the scheduled casts, went to a well to take water. out of fear they returned back from the well and p. 5. the accused persons are alleged to have prevented the witnesses from drawing water from a public well. such prevention in order to be an offence, is to relate to using water of any sacred rank, well, spring or water course. proof of being a public well will not be sufficient to satisfy the requirement of section 3. it is to be proved to be a sacred well. , preventing..........the first information report in the koksara police station to this effect. 3. the respondents-accused persons pleaded not guilty and denied the occurrence. 4. on consideration of the evidence adduced on behalf of the parties, the trial court held the accused persons not to be guilty and acquitted them. the order of acquittal has been challenged by the state in this appeal. 5. the accused persons are alleged to have prevented the witnesses from drawing water from a public well. such prevention in order to be an offence, is to relate to using water of any sacred rank, well, spring or water course. proof of being a public well will not be sufficient to satisfy the requirement of section 3. it is to be proved to be a sacred well. there being no such allegation in the f. 1. r. the charge.....
Judgment:

S.C. Mohapatra, J.

1. This is an appeal preferred by the States against the order of the Subdivisional Judicial Magistrate, Dharamgarh acquitting the respondents-accused persons of the charges under Sections 3 and 7 of the Protection of Civil Rights Act, 1955 (hereinafter called the 'Act').

2. The prosecution case is that on 12.6.1978 at about noon, the Harijans, who were members of the scheduled casts, went to a well to take water. They were obstructed by the respondents, were abused in filthy language and were threatened to be assaulted. Out of fear they returned back from the well and P.W.1 lodged the First Information Report in the Koksara Police Station to this effect.

3. The respondents-accused persons pleaded not guilty and denied the occurrence.

4. On consideration of the evidence adduced on behalf of the parties, the trial Court held the accused persons not to be guilty and acquitted them. The Order of acquittal has been challenged by the State in this appeal.

5. The accused persons are alleged to have prevented the witnesses from drawing water from a public well. Such prevention in order to be an offence, is to relate to using water of any sacred rank, well, spring or water course. Proof of being a public well will not be sufficient to satisfy the requirement of Section 3. It is to be proved to be a sacred well. There being no such allegation in the F. 1. R. the charge or even in the questions put under Section 313, Cr. P. C. to the accused persons, the offence under Section 3 is not committed and the acquittal of the accused persons from that charge is justified.

6. Mr. P. K. Mohanty, the learned Puplic Prosecutor submitted that the act alleged if proved would attract Section 7 of the Act and the order of acquittal would be vitiated inasmuch as the trial Court has not given any weight to Section 12 of the Act and in fact it has not taken note of the same. It is submitted that consideration of the evidence in the background of Section 12 of the Act would lead to a different conclusion.

7. Section 12 of the Act reads as follows:

'12. Presumption by Courts in certain cases: Where any act constituting an offence under this Act is committed in relation to a member of a Scheduled Caste, the Court shall presume, unless the contrary is proved that such act was committed on the ground of 'untouchability'.

Mr. Mohanty, the learned Public Prosecutor submitted that in view of the presumption under Section 12 onus lies on the respondents-accused persons to prove that no offence has been constituted and the presumption has not been rebutted.

8. Section 12 deals with a presumption of fact that the act alleged was committed on the ground of untouchability. Once prosecution proves that the act as alleged was committed, the presumption arises. This would, however, be a rebuttable presumption. Where the act alleged is not proved by: the prosecution to have been committed, there is no question of any presumption under Section 12. In case the act alleged against the accused persons is proved the only presumption arises that it was committed on the ground of untouchability. In that case the accused persons would be required to rebut the same. The rebuttal may be that the act was committed not on the ground of untouchability but on some other ground. It may be rebutted, by cross-examining the prosecution witnesses or by adducing evidence to that effect. Where, however, the act alleged has not been proved, Section 12 is not attracted.

9. In this case if the Article alleged' is proved, the presumption under Section 12 would be attracted and since it is not the case of the respondents that they committed the act alleged on any other ground, the presumption will be that it was committed on the ground of untouchability. Thus, the only question to be considered is whether the act alleged i.e., preventing the witnesses who are members of the Scheduled Caste from using water from a public well and abusing them in filthy language with threatening to assault has been proved. The trial Court on careful scrutiny of the evidence on record has disbelieved the occurrence and has acquitted the respondents.

Though, the High Court has full power to review all the evidence upon which the acquittal has been founded to reach the conclusion that upon that evidence the order of acquittal should be reversed, such reversal will not be justified merely on the ground that two views on the evidence are reasonably possible. [See 58(1984) C. L. T. 127 (State v. Tapas Kumar Shome); 1984 (1) O. L. R. 621 (Smt. Dhara Dei v. Prafulla Swain) : 55 (1983) C. L. T. 531 (State of Orisss v. Arjuna Das); and 54(1982) C.L.T. 83 (Stats of Orissa v. Trinath Dash)]. To satisfy if there is any infirmity in appreciation of the evidence, I went through the entire evidence on record and I am not satisfied that a different view on the appreciation of evidence can be taken.

10. In the result, there is no merit in this appeal which is accordingly dismissed. The bail bonds of the respondents be discharged.


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