Orissa High Court
Srikanta Pradhan vs State Of Orissa on 17 April, 2017
Author: S.Pujahari
Bench: Satrughana Pujahari
ORISSA HIGH COURT, CUTTACK
CRLA NO. 506 OF 2010
From the judgment dated 28.09.2010 passed by Shri C.R. Dash,
Adhoc Addl. Sessions Judge, (F.T.C.-II), Kandhamal, Phulbani in S.T.
No.47 of 2010.
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Srikanta Pradhan ......... Appellant
-Versus-
State of Orissa ......... Respondent
For appellant - Mr. P.K. Parhi, Advocate
For respondent - Mr. S.B. Mohanty,
Additional Standing Counsel
PRESENT:-
THE HON'BLE MR. JUSTICE SATRUGHANA PUJAHARI
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Date of Judgment : 17th April, 2017
S.PUJAHARI, J.The appellant herein calls in question the judgment of conviction and order of sentence passed against him in S.T. No.47 of 2010 on the file of the Adhoc Addl. Sessions Judge (F.T.C.-II), Kandhamal. The learned Adhoc Addl. Sessions Judge (F.T.C.-II), Kandhamal vide the impugned judgment and order dated 28.09.2010 held the appellant guilty of the offences under Sections 147/148/427/435/149 of the Indian Penal Code (for short "I.P.C.") and sentenced him to undergo rigorous imprisonment for three years and pay a fine of Rs.2000/-, in default, to undergo further R.I. for three months under Section 2 435 of I.P.C., R.I. for two years ten years and pay a fine of Rs.2000/-, in default, to undergo further R.I. for three months under Section 427 of I.P.C., R.I. for one year and pay a fine of Rs.500, in default, to undergo further R.I. for one month under Section 148 of I.P.C., but had not passed any separate sentence under Section 147 of I.P.C.
2. Prosecution case placed before the trial court is that on 24.09.2008 at about 10 p.m. while the informant with her daughters and mother-in-law were going to sleep, a mob armed with 'Khanda', 'Kati', kerosene bottles etc. attacked the houses of some Christian families, ransacked and looted the properties and set fire to the dwelling house and household articles. Out of fear to their lives, the informant with her family members went out through the 'Bari' side and hiding themselves near a bush, found the present appellant and others damaging and setting fire to her house and household articles. They also took away two cycles. Basing on the report of the informant, a case was registered, investigation commenced and after completion of investigation, charge-sheet was placed against the present appellant and others under Sections 147/148/427/436/379/149 of I.P.C. and, accordingly, cognizance was taken and the case was committed to the Court of Session.
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The trial court placing reliance on such case of the prosecution, framed charge against the appellant under Sections 147/148/427/436/379/149 of I.P.C., to which the appellant pleaded not guilty, hence trial. In course of the trial, the prosecution examined five witnesses and exhibited some documents whereas no evidence was adduced on behalf of the appellant who had taken a plea of denial and false implication.
On conclusion of the trial, the learned trial court placing reliance on the version of the witnesses while acquitting the appellant of the charges under Sections 436/379 of I.P.C., found him guilty under Sections 147/148/427/435/149 of I.P.C. and passed the sentence, as stated earlier.
3. During course of hearing of the appeal, the learned counsel for the appellant contended that the learned trial court did not appreciate the evidence in proper perspective inasmuch as though there was inconsistency in the version of the witnesses and the evidence on identification of the appellant out of the large mob during darkness was unworthy of credence and no specific overt act was attributed to the appellant, still accepting such evidence to be trustworthy, convicted him. Furthermore, when the witnesses examined are all relatives and there is unexplained delay in lodging of the report, the trial court ought not have accepted the prosecution case to have 4 been proved. Hence, he submits the judgment of conviction is indefensible. Besides this, he advanced an alternative submission that the sentence passed is harsh and excessive.
4. On the other hand, the learned Addl. Standing counsel supported the impugned judgment of conviction and order of sentence.
5. Perused the materials on record. P.W.1, the daughter of the informant stated that by the time of occurrence she with her sister, mother and grandmother had just gone to retire to the bed and hearing hullah, came outside and saw a mob consisting about 200 persons being armed with deadly weapons and seeing them, she with all other family members concealed themselves in the bush nearby their house. She specifically named four persons including the present appellant, but expressed her inability to identify the other culprits. She further stated that they saw the mob first went to the house of one Ramdev Naik and ransacked it, looted the properties and set fire to the house, then they attacked the house of one Abeda Digal and then they attacked her (P.W.1) house, forcibly entered therein, ransacked the house, damaged the articles and set fire to it. P.W.1 further stated that they spent the night in the bush, returned to the house in the next morning and found the household articles were burnt to ash. P.W.2, the informant had 5 stated in almost identical manner. She had named three miscreants including the present appellant. P.W.3, one Home Guard has stated about seizure of some burnt and broken articles and preparation of seizure list at the Police Station vide Ext.1, but he could not say wherefrom the same were obtained. P.W.4, a relation of the informant, has also stated in a similar manner like P.Ws.1 and 2. P.W.5 is the Investigating Officer who had investigated the case, examined the witnesses, seized the articles and had placed charge-sheet.
6. As regards the delay in lodging the F.I.R., admittedly, the occurrence took place on 24.09.2008 and the F.I.R. was lodged on 08.10.2008. The learned trial court had referred to a number of decisions of the Apex Court as well as of this Court as regards the legal position in this regard. The learned trial court has rightly held that no explanation was adduced by the informant and other witnesses as regards the delay in lodging the F.I.R., but, inter-alia, the learned trial court had taken note of the circumstances and even took judicial notice of the fact that during the relevant time, 'Curfew' was imposed throughout the district for a considerable period and there was wide spread rioting and most of the villagers belonging to the Christian community were under threat and their houses were ransacked and ablazed and even there was large number of murders. Then 6 they were in the relief camp. These circumstances must have dissuaded and discouraged them to promptly report the incident to police. Hence, the delay in lodging the report was not fatal, according to the trial court though the possibility of deliberation in the camp before the belated report is not ruled out. Such approach of the learned trial court is just and proper. Similarly, as regards delay in sending the statement of the witnesses to the Court, the learned trial court had also taken judicial notice of the fact that during that relevant period, but for the alarming situations, the Court at G. Udayagiri was also not functioning as usual and likewise the Police agency was giving priority to control law and order situation besides investigating a large number of reported incidents. The trial court also took note of the fact that the villagers were taking shelter in several relief camps, and for that consuming time for ascertaining their whereabouts to record their statements is quite natural. So, delayed examination of the witnesses and sending their statements to Court cannot be a ground to disbelieve their testimony. The trial court has vividly discussed this aspect in right perspective. The same appears to be just and proper. Hence, the contention that the same cast a cloud in the version of the prosecution witnesses as such is without any substance.
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7. So far identification of the appellant, admittedly the material witnesses and the appellant belong to same village. Though the witnesses alleged against a large mob, but categorically they have named only 3 to 4 persons including the present appellant. Even the material witnesses, i.e., P.Ws.1, 2 and 4 fairly admitted in their evidence that they could identify only 3 to 4 assailants including the present appellant. Above all, the F.I.R. was registered against three named persons including the present appellant and others. P.Ws.1, 2 and 4 identified the appellant before the Court. As such, there is no chance of wrong identification. The learned trial court in paragraph-20 of the impugned judgment has elaborately discussed this aspect and held that since the witnesses are proved to have watched the incident closely, their version that they had seen the assailants committing rioting and ransacking the house of the informant (P.W.2) is established beyond doubt. Such finding being based on acceptable evidence on record, cannot be held as erroneous or illegal.
8. As regards the contention that only interested and related witnesses have been examined, it is needless to say that the situation in the village was surcharged due to communal rioting between Hindu and Christian community. Many houses were ransacked, looted and set to fire. On close scrutiny of the 8 evidence of P.Ws.1, 2 and 4, the same is coherent, consistent and corroborative to each other. Taking note of the same, the trial court refused to doubt the version of the witnesses who are close relations. There being no rule in law that relations are incompetent witnesses and their evidence is unworthy of credence, the evidence of the aforesaid witnesses which is coherent, clear and cogent and also corroborate and complement to each other, is not open to suspicion in that score. The contention regarding non-preparation of the spot map by the Investigating Officer was dealt by the learned trial court who taking note of the decision of the Apex Court in the case of Alla Rakha K. Hussain vrs. State of Gujarat, reported in 2002 S.C. 1015, refused to discard the prosecution case on this score.
9. So far the contention with regard to the overt act of the appellant, the learned trial court in paragraph-28 of the impugned judgment has held that assassination of the Hindu saint Swami Laxmanananda gave rise to an ethno communal violence in whole district of Kandhamal and the people of Hindu community attributed the assassination of the saint on the people of Christian community which resulted in attack and counter attack between the communities. In such circumstances, participation of any person in a mob at the 9 relevant time cannot be for any purpose except with the object to cause violence, damage/destruction attracting the mischief of Section 149 of I.P.C. In this regard, the learned trial court has relied upon a decision of the Apex Court in the case of Laliji vrs. State of U.P., 1989(1) SCC 437 wherein it was observed as follows :-
"While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the un-lawful assembly may fasten vicariously criminal liability U/s.149.
Xxxxx xxxxx xxxxxx Common objection of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly are or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.
P.Ws.1, 2 and 4 identified the appellant as one of the members of the mob consisting of 100 of numbers and that the mob being armed with deadly weapons entered into the house of P.W.2, committed mischief, put the household articles to fire and such evidence was not shaken in their cross-examination. Mere plea of denial is not sufficient to discard such evidence. So, such contention of the learned counsel for the appellant is also not acceptable, inasmuch as nothing was brought out in the evidence as to why the witnesses would falsely implicate the present appellant leaving the real offenders.
10. The learned trial court after analyzing the evidence on record and discussing the position of law, while acquitting the 10 appellant from the offences under Sections 379/436 of I.P.C., has rightly held him guilty of the offences under Sections 147/148/427/435/149 of I.P.C. and there is no illegality or perversity in such finding. As regards the quantum of sentence, the same appears to be commensurate with the facts and circumstances of the case and needs no inference by this Court.
11. Hence, this criminal appeal is devoid of merit and, as such, stands dismissed. The impugned judgment of conviction and order of sentence are hereby confirmed.
L.C.R. received be sent back forthwith along with a copy of this Judgment.
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S.Pujahari, J.
Orissa High Court, Cuttack, The 17th day of April, 2017 /MRS