Orissa High Court
Kabula Behera @ Mahabhoi vs State Of Odisha .... Opp. Party on 20 May, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.1857 of 2024
Kabula Behera @ Mahabhoi .... Petitioners
& another
Mr. J.K. Pattanaik, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. P.K. Mahraj, ASC
CORAM:
JUSTICE SIBO SANKAR MISHRA
Order ORDER No. 20.05.2024 01. 1. Heard.
2. The petitioners are arrayed as accused along with nine other accused persons in F.I.R., i.e., Gondia P.S. Case No.16 of 2004 corresponding to G.R. Case No.75(A) of 2004 pending in the Court of learned J.M.F.C., Gondia, Dhenkanal. Except the petitioners, nine other accused persons had faced the trial after splitting the trial as the petitioners have been absconding. During trial, accused Ratnakar Lenka died as result of which the trial qua the said accused abated. Insofar as the other eight accused persons are concerned, they were acquitted by the learned J.M.F.C., Gondia vide order dated 18.07.2023 in G.R. Case No.75 of 2004. While recording the acquittal in favour of the said accused persons, the trial Court concluded that neither the informant nor P.W.2, injured Puspalata did support the prosecution case. Insofar as the informant is concerned, he deposed that he is not desirous to prosecute the petitioners. Therefore, the trial Court has recorded the acquittal in favour of the eight accused persons.
3. The trial Court while acquitting the eight accused persons observed as under:
"In this case F.I.R. Ext.P-1/PW1 reveals that dtd. 10.02.2004 at about 4.00 P.M. the accused persons came to the house of the informant with an Ambasador car bearing Regd. No.ORD-3019 being armed with Lathi, Axe, Farsa and Bhujali etc. and forcibly entered into the house of the informant. Then the accused persons assaulted to the brother, father and son of the informant by means of Axe, Lathi and chapel and asked by saying "to jhia Puspa keunthi achhi kaha nahele tama bansa nipat karibebi" and threatened to destroy his house by throwing bomb. Out of fear all the family members of the informant remained silent and the accused persons took Puspalata forcibly by breaking open the door of the room. The accused persons also took photo album of the daughter of the informant, Rs.10,000/- and 5 waris of gold ornaments. At the time of departure all the accused persons threatened and abused in obscene language by saying if the matter will report at P.S. they will kill all the family members of the informant. But the informant who is the vital witness of the prosecution himself deposed that he did not want to proceed in this case. Since, the complaint himself is not desirous of prosecuting the accused persons, no adverse inference can be drawn against the accused person. Moreover, F.I.R. is not a substantive peace of evidence. Without any corroboration from the informant with the F.I.R., it is not possible to stand the prosecution case."
4. Although the petitioner no.1 was on bail, however, petitioner no.2 was absconding after judgment passed by the Court of learned J.M.F.C., Gondia, the petitioners have approached this Court seeking quashing of the entire criminal prosecution against them.
5. Perusal of the judgment of the learned J.M.F.C., Gondia dated 18.07.2023 indicates that there is absolutely no evidence adduced by the prosecution to support the case as a result of which the accused persons have been acquitted. Therefore, it is apparent that subjecting the petitioners to trial would be a futile exercise. In view of the decision in the case of Gian Singh vs. State of Punjab and another reported in 2012 (10) SCC 303, this case deserves merit.
6. Mr. Pattnaik also relies upon a decision of the Hon'ble Supreme Court in the case of Central Bureau of Investigation vs. Akhilesh Singh, reported in (2005) 1 SCC 478 and submits that the informant has already deposed that he is not willing to prosecute the accused persons and the injured has not supported the prosecution case, therefore, subjecting the present petitioners to trial would be a mere formality at the cost of judicial time.
7. In view of the aforementioned, Gondia P.S. Case No.16 of 2004 corresponding to G.R. Case No.75(A) of 2004 pending in the Court of learned J.M.F.C., Gondia, Dhenkanal and consequential proceedings arising therefrom qua the petitioners are quashed.
8. Petitioners are subjected to cost of Rs 3,000/- each to be deposited by them with the State Legal Services Authority.
8. The CRLMC is accordingly disposed of.
(S.S. Mishra) Judge amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF OIRSSA, CUTTACK Date: 23-May-2024 09:47:01