Orissa High Court
Pramod Pradhan @ Pramod Kumar vs State Of Orissa on 8 July, 2021
Author: D. Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA NO.403 OF 2010
From the judgment and order dated 17.07.2010 passed by Shri
C.R.Dash, Ad hoc Additional Sessions Judge, F.T.C. No.II, Kandhamal,
Phulbani, in S.T. Case No.25 of 2010/S.T.-51 of 2010.
Pramod Pradhan @ Pramod Kumar .... Appellants
Pradhan & Three others
-versus-
State of Orissa .... Respondent
Appeared in this case by Video Conferencing Mode:
For Appellants - Mr.Prasanna Ku. Parhi, G.Mohanty and D.Rath For Respondent - Mr. Purna Chandra Das, Addl. Standing Counsel CORAM:
MR. JUSTICE D.DASH HEARING DATE:05.07.2021 : JUDGMENT DATE:08.07.2021 D. Dash, J
1. The Appellants by presenting this Appeal have challenged the judgment of conviction and order of sentence dated 30.07.2010 passed by the learned Ad hoc Additional Sessions Judge, FTC No.II, Kandhamal, Phulbani in S.T. Case No.25 of 2010/S.T.-51 of 2010.
By the above, each Appellant has been convicted and sentenced as under:-
(i) for commission of offence under section 435/451 of the Indian Penal Code (for short 'the IPC'), on each count to Rigorous // 2 // Imprisonment ('R.I.') for a period of three years and fine of Rs.2000/- in default (i.d.) to R.I. for three months;
(ii) for commission of offence under section 427 of the I.P.C. to R.I. for a period of two years and pay fine of Rs.2000/- i.d. R.I. for three months; and
(iii) for commission of offence under section 148 of the I.P.C. to R.I. for a period of one year and fine of Rs.500/- i.d. R.I. for one month with the stipulation that the substantive sentences would run concurrently.
2. The prosecution case, in short, is that aftermath of killing of Hindu Saint Swami Laxmananda Saraswati on 23.08.2008, some Hindu fundamentalists identifying themselves as the followers of Bajrang Dal and Viswa Hindu Parishad attributed the criminal liability as to said assassination upon the members of the Christian community and this gave rise to communal violence in the District of Kandhamal. Therefore, members of the Hindu as well as Christian community hurled attacks and counter attacks.
When such situation was prevailing; on 26.08.2008, around 11 p.m., the accused persons along with others consisting of more than sixty (60), forming an unlawful assembly armed with deadly weapons giving slogans as Jai Bajrangbali etc came to the village Gasukia and ransacked the house of Napa Mallick and others. It is said that they trespassed into the dwelling house of Napa Mallick, looted away the properties and damaged some household articles and while leaving, at last set fire to the house which destroyed everything. It is said that similar operations were also carried out in other houses of the area. The Police Officer in-Charge of K.Nuagaon Police Outpost under Baliguda Police Station having received the written report under the signature of Napa Mallick, the // 3 // Informant examined in the Trial as P.W.1, registered P.S. Case No.146 of 2008 and the investigation commenced.
On completion of the investigation, charge sheet being submitted; the case was committed to the Court of Sessions and that is how the accused persons faced the Trial.
3. In the Trial, the prosecution, in order to establish the charges against the accused persons, examined in total seven (7) eye witnesses. Besides the same, the written report (FIR, Ext.1), endorsement made in the Station Diary book of Police Outpost, Formal FIR, Seizure List, Spot Map etc have been admitted in evidence for their side. The defence examined none.
4. The Trial Court, on scrutiny of the prosecution evidence and upon their critical examination at its level, finally came to the conclusion that the prosecution has established the charges against the accused persons (4 nos.) for commission of offence under section 147/148/427/ 435/451 of the IPC read with section 149 of the IPC in the incident. Accordingly, the accused persons having been convicted for the above offences; have been sentenced as aforestated.
5. I have heard Mr.P.K.Parhi, learned counsel for the Appellants being assisted by learned cousel Mr.B.K.Parhi.. I have also heard Mr.P.Ch. Das, learned Additional Standing Counsel.
6. Mr.P.K.Parhi, learned counsel for the Appellants, placed the judgment more particularly the paragraphs containing the discussion of the evidence on record and their evaluation. In doing so, he had side by side drawn the attention of this Court to the evidence of P.W.1 and other witnesses. According to him, the entire evidence on record when taken together with the surrounding circumstances, would create grave doubt in // 4 // mind as to the complicity of these accused persons, i.e, their presence and participation. He, therefore, submitted that the conclusion raised by the Trial Court that the prosecution has proved the charges against the accused persons beyond reasonable doubt is untenable.
7. Mr.P.Ch.Das, learned Additional Standing Counsel submitted that at that point of time, the entire area was under surcharged atmosphere and all were panic striken for the communal violence that had broken in the District and in that situation, P.W.1, the Informant, who happens to the victim in the case, has also stated that he was in fear of life and saw the incident as also the parts played by the accused persons. He contended that under the circumstances, minor discrepancies in the evidence would stand ignored. He further submitted that the evidence of P.W.1 stand well corroborated by the evidence of other witnesses to the extent that these accused persons were the members of the unlawful assembly and they having come near the house of P.W.1 holding deadly weapons made their entry inside, damaged the household articles, looted away the movables and finally set the house ablaze. He, thus, submitted that the Trial Court did commit no wrong in convicting the accused persons and sentencing them.
8. Bearing the above submissions in mind, this Court is now called upon to judge the sustainability of the finding of the Trial Court as regards the incident and the parts played by these accused persons.
Before going to approach the evidence on record in searching out the complicity of the accused persons; some surrounding circumstances as those emerge from the evidence let in by the prosecution are required to be culled out to ascertain as to what extent, those may impact upon the substratum of the case. Here, the incident is said to have taken place on 26.08.2008 and the FIR has been received on 06.11.2008 by the Police // 5 // Officer of K.Nuagaon Police Outpost (P.W.7). It reveals from the said Ext.1 that P.W.1 has put the date under his signature as 04.11.2008. However, on a close scrutiny and to the nacked eye, there appears manipulation as to the date and month. The figure '10' denoting the month changed as '11' is apparent. Here again when P.W.7 say to have received the same by Post on 06.11.2008; his endorsement (Ext.1/2) is to the effect that it was received through 'Dak'. P.W.1 is not saying as to who scribed the FIR (Ext.1). Name of the scribe or his signature is not mentioned anywhere in that Ext.1. When admittedly this P.W.1 himself has not written the same. No investigation has also been conducted to ascertain that this Ext.1 had been scribed to the dictation of P.W.1 as by whom and that scribe is withheld from the witness box. After this P.W.1's signature in Ext.1, the list of accused persons has been given therein below and interestingly, P.W.1 has not signed below the same. There has been an inordinate delay of more than two months in receiving this Ext.1. Nothing is stated as regards the said delay and the FIR (Ext.1) is silent as to any explanation on that score. All the above are going wholly unexaplained. P.W.1 even in his evidence also does not whisper in putting forward any sort of explanation in that regard. Careful look being given at Ext.1, it is seen that the names of seven (7) persons have been given as the members of the mob placing under the category of "Danga Karis" and therein it has been stated as if those persons could be known. Be that as it may, it is not said that they were indentified to be there in the assembly consisting of more than 40 or 60 to 70. P.W.1 has, however, stated that there were more than 40 persons in the mob and they came by raising hullah. He has merely stated that these accused persons who faced the trial were there among them. This P.W.1 says that being under fear of life, he with others had left the house and concealed in the jungle side. But it is said that he had seen the accused persons in the said gathering // 6 // when the mob come and drove them out of the house. It is not stated as to whether they were holding any weapon muchless as to their type. He has also not stated as to what overt act they specifically did at any point of time right from the beginning till their departure from the spot. The evidence of P.W.2 is also in the same vein. This P.W.2 while has stated that he could identify these accused person to be there in the mob, he is not saying as to how he could remember their names when they hail from different village. It is further not stated as to what they did and whether they were in any way active in any manner in their participation or just silently watching. The evidence as to the following mob and watching by taking a position in a secret manner appears to be doubtful and does not appeal to the common sense being against normal behavior in that highly surcharged atmosphere when it was then 11 p.m. P.W.3 has stated in the general manner that accused persons with others came. If all these versions are taken into account then the evidence as to the identification of these accused persons as deposed to by all the above witnesses get pushed under the thick clouds and doubt in mind on that score without any other strong corroborative evidence coming to surface from their lips does not get repelled as under the circumstances the Court has also a duty to guard from all such angles so as to be doubly certain on the score that scope of false implication in the case stands wholly eliminated.
9. Above said evidence on record coupled with the surrounding circumstances as already discussed, in my considered view are enough to hold that the prosecution has not been able to prove the charges against the accused persons beyond reasonable doubt by leading clear, cogent and acceptable evidence. Therefore, the finding of guilt against these accused persons for the offences for which they have so held guilty by the Trial Court cannot be sustained. In that view of the matter, the judgment of conviction and order of sentence dated 17.07.2010 passed by the learned // 7 // Ad hoc Additional Sessions Judge, F.T.C. No.II, Kandhamal, Phulbani, in S.T. Case No.25 of 2010/S.T.-51 of 2010 are liable to be set aisde which are hereby so done and the accused persons stand acquitted of the charges.
10. In the result, the CRLA is allowed. The bail bonds executed by the accused persons shall stand discharged.
The LCR be returned forthwith.
As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.
(D. Dash) Judge B.Nayak