1. An appeal U/S. 374(2) of the Code of Criminal Procedure, 1973 (in short, ‘the Code’) by the convict Prafulla Kumar Nag challenges his conviction and sentence passed on 01.03.1994 by the learned Special Judge-cum-Sessions Judge, Koraput-Jeypore in S.C. No. 107 of 1993 convicting him for offences punishable U/Ss. 451/353 of Indian Penal Code, 1860 (in short, IPC) & Sec 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, ‘the Act’) with aid of Section 34 of IPC and sentencing him to the punishment of Rigorous Imprisonment (R.I.) for two months for offence U/Ss. 351/353 of IPC read with Section 34 of IPC on each count and R.I. for six months and fine of Rs.200/- in default whereof to undergo R.I. for one month for offence U/S. 3(1)(x) of the Act read with Section 34 of IPC with all the sentences directed to run concurrently by giving benefit of set off U/s. 428 of the Code.

2. The prosecution case arises out of an FIR Ext.2/3 lodged by P.W.7, the BDO, Tentulikhunta against the appellant and two others before the O.I.C., Tentulikhunta Police Station in the district of Koraput alleging therein that he is a member of scheduled caste community and on 11.01.1992 at about 5.30 P.M. when he was about to leave Development Section of his office to do work with Senior Clerk, a group of people came there and of them, one Abhimanyu Nayak drank liquor in front of the door of the office under a mango tree and they all abused him in filthy language by saying “MAAGHIA MADHAR CHOD, TU ONE SIDED HEICHU, MINISTERKU ANIBU, TUTTE REVIEW KORIBU, F.I.R. DELLE MUDER KHORIBU” and they dragged him by holding his hand to outside the room and threatened to kill him. They also did not allow him to perform his duty either in the Development Section or in his office room and one Siba Acharya persuaded him not to take action in the matter. At the time of occurrence, Mr.D.R.K.Rao, Senior Clerk was present in the office.

On receipt of Ext.2/3, the OIC-P.W.5 registered Tentulikhuntia P.S. Case No. 04 dated 11.01.1992 and took up investigation of the case on the same day, but subsequently handed over the charge of investigation to Circle Inspector P.W.6 who formally placed the charge sheet against the appellant and two others after verifying and ascertaining the caste of the informant, resulting in trial in the present case.

3. In support of its case, the prosecution has examined seven witnesses vide P.Ws. 1 to 7 and relied upon two documents in the shape of injury report and FIR under Ext.2/3 as against no evidence whatsoever by the defence. The plea of the defence was one of complete denial, but the learned trial Court wholly relying upon only the evidence of P.W.7 passed the impugned judgment convicting the appellant and another for the offences and sentenced them to punishment indicated supra, while acquitting co-accused K.Shiba Prasad Acharya. Hence, this appeal by the convicts, but during pendency of the appeal, co-appellant namely, Abhimanyu Naik died and the appeal by him stands abated vide order No. 10 dated 06.03.2023.

4. In assailing the impugned judgment of conviction and sentence, Miss. S.Sahoo, learned counsel for the appellant submits that none of the eye witnesses had ever supported the prosecution case and the Doctor-cum-P.W.4 did not find any injury on the person of the informant, but the learned trial Court by wholly relying upon the evidence of P.W.7 who is not only interested, but also his evidence suffers from inconsistency and contradictory to the allegation made by him, the learned trial Court had convicted the appellants, even ignoring the fact that no evidence was led to indicate the caste of informant and thereby, the impugned judgment and sentence being unsustainable in the eye of law are liable to set aside. On the aforesaid submissions, learned counsel for the appellant urged this Court to allow this appeal and acquit the appellant-Prafulla Kumar Nag of the charges.

5. Mr.S.S.Pradhan, learned AGA by relying upon the decision in Kunju Vrs. State of Tamilnadu; (2008) 2 SCC 151 [LQ/SC/2008/86] has submitted that there is no bar to rely upon the evidence of solitary witness to convict a accused in view of the mandate of Section 135 of the Evidence Act. He has further submitted that in the present case, the evidence of P.W.7 is wholly reliable and free from any biases blemishes and thereby, the conviction of the appellant cannot be questioned. Learned AGA accordingly, prays to dismiss the appeal.

6. In view of the rival submissions upon perusal of evidence, this Court notices that the appellant has been convicted for one of the offences U/s. 3(1)(x) of the Act, but there appears absolutely no dispute about investigation being conducted substantially by P.W.5 who was Officer-in-Charge of Tentulikhunta Police Station at the relevant time of alleged occurrence. It appears from his evidence that he has not only examined informant, but also the other witnesses except P.W.6-cum-the subsequent I.O. who was the Circle Inspector at the relevant time of investigation. The evidence of P.W.6 also discloses unambiguously that he had received injury report of the informant from the Medical Officer and after perusing the case diary, he had submitted charge sheet in this case. Besides, P.W.5 had conducted all the formality of investigation including sending the informant to medical Officer by issuing requisition under Ext.1/2. What is the most significant is that the offence U/s. 3(1)(x) of the Act can be stated to be made out against the person who intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view, but in the present case, none of the occurrence witnesses had ever supported the prosecution case , however, in any case “within public view” as referred to being the essential ingredient of the offence is sine qua non to constitute the offence under section 3(1)(x) of the Act. Besides, there must be intention on the part of the offender to humiliate a member of Scheduled Caste and Scheduled Tribe to make the offender liable for the offence. In this case, the evidence of none of the witnesses except the informant discloses the necessary ingredients of intention of the offender and the commission of offence in public view. Additionally, neither P.W.5 nor P.W.6 had collected any document relating to caste of the informant and P.W.6 has even gone to the extent of admitting in cross-examination that he has not mentioned in the case diary that which particular caste the complainant belongs to and he has only verified the correspondence file of Office of BDO, Tentulikhunti wherein the complainant was shown as a member of Scheduled Caste, but he has not seized those papers. The offence U/S. 3(1)(x) of the Act is made out only when the offence is committed upon the members of such a community by reason of his/her caste. It is, therefore, clear that the offence U/S. 3(1)(x) of the Act would be attracted against the offender once the following facts are established by way of evidence, (i) the offender must not be a member of Scheduled Caste/Scheduled Tribe and the victim must be a member of Scheduled Caste and Scheduled Tribe, (ii) the offender must have intentionally insulted or intimidated the victim, (iii) such insult or intimidation must be with intent to humiliate the victim, (iv) the insult or intimidation must have been committed only by the reason of the caste of the victim and (v) the insult or intimidation must have been made in any place within public view.

7. In this case, a careful scrutiny of evidence of P.W.7, there appears no evidence against the appellant to indicate that he had committed the offence by reason of the caste of the informant nor any insult or intimidation took in a place within public view as none of the occurrence witnesses were stated to have seen the occurrence. Hence, clearly the offence U/S. 3(1)(x) of the Act is not made out at all against the appellant.

8. The appellant was also found convicted for offence U/Ss. 451/ 353/ 34 of IPC, but mere entry into the Block Office in this case cannot be considered as house trespass within the meaning of Section 451 of IPC, inasmuch as unless entry into the public office is with intent to commit an offence punishable with imprisonment, the provision of house trespass would not be attracted. In this case, if the evidence is scrutinized, it would not be found that only informant P.W.7 had stated in his evidence that the appellant was present along with others and he snatched away the spectacle which P.W.7 had put on then. It is also stated by him that on the relevant day at 5.30 P.M, he was in the Development Section of BDO office along with P.W.3 and P.Ws. 1 and 2 were present outside the room, but none out of P.Ws. 1 to 3 had either stated the name of the appellant to be present or entered into the office to commit any offence, rather P.Ws. 1 and 2 had never supported the prosecution case in any manner, whereas P.W.3 has only stated that the deceased appellant Abhimanyu Naik had entered into the office and asked who is the BDO and the BDO replied that it is a holiday, no work would be done and asked him to come after words. It is, therefore, clear that there is hardly any evidence against the present appellant for entering into the BDO office with a intention to commit any offence. For sake of the argument, accepting, but not admitting the evidence of P.W.7 to be true for a moment, one thing transpires that P.W.7 was present in the office during a public holiday being second Saturday, but it was not clear as to what official work he was discharging on a public holiday in the evening hour. His evidence is clearly silent about the manner in which the appellant obstructed P.W.7 from discharging his duty. It is also not forthcoming from the evidence of P.W.7 as to how the appellant used criminal force or assaulted P.W.7.

9. It is obviously true that a conviction may lie on the sole testimony of a witness provided the same is truthful. In this case, the prosecution has of course examined seven witnesses, of whom, P.Ws. 4 to 6 are official witnesses, but P.Ws. 1 to 3 are independent witnesses, whereas P.W.7 himself is the informant-cum-victim and none of the private witness such as P.Ws. 1 to 3 had ever supported the prosecution case. On the other hand, P.W.3 cannot be considered to be unreliable witnesses as he has stated about the occurrence, but he had not taken the name of the appellant for committing any offence. Besides, the evidence of P.W.7 is not clinching evidence to find out the guilt of the appellant as no where P.W.7 had stated about the appellant to have committed any offence individually upon him except his evidence of being abused by accused Prafulla and Abhimanyu. In such situation, when the evidence of P.W.7 is not clear enough to find out the guilt of appellant, it would not be safe to base conviction of the appellant on such evidence without any independent corroboration by way of the evidence of other witnesses. Besides, the evidence of P.W.7 does not convincingly establish the ingredients of offences U/Ss. 451/353 of the IPC read with Section 34 of IPC against the appellant and therefore, the conviction of the appellant is unsustainable in the eye of law.

10. A cumulative reappraisal of evidence on record, this Court neither finds any evidence for commission of offence U/s. 3(1)(x) of the Act nor for offence U/Ss. 451/353 of the IPC read with Section 34 of IPC in any manner against the present appellant who is, therefore, entitled to clean acquittal, but the learned trial Court had misapplied the evidence on record against the appellant in the impugned judgment to hold him guilty of the offences. Ergo, the judgment of conviction and order of sentence passed by the learned trial Court on 01.03.1994 convicting and sentencing the appellant being unsustainable is hereby set aside and the appellant is acquitted of the charges.

11. In the result, the appeal stands allowed on contest, but in the circumstance there is no order as to costs. The bail bond of the appellant stands discharged.