Orissa High Court
Kala Ram vs State Of Orissa .... Opp. Party on 30 May, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRL REV No. 138 of 2006
From the judgment and order dated 16.02.2006 passed by the learned
Addl. Sessions Judge, Rayagada in Criminal Appeal No.61 of 2001
confirming the judgment and order dated 29.11.2001 passed by the
learned Asst. Sessions Judge-cum-C.J.M., Rayagda in Sessions Case
No.14 of 2001.
1.Kala Ram
2.Sukanta Singh @ Landa @ Nanda @
Sukant Kumar Singh .... Petitioners
-versus-
State of Orissa .... Opp. Party
Advocates appeared in this case through Hybrid Mode :
For Petitioners : Mr. B.S.Das Parida, Advocate
on behalf of Mr.D.P.Dhal,
Senior Advocate
For Opp. Party : Mr. M.R.Mishra, ASC
CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
....................................................................................
Date of Judgment : 30.05.2025 ................................................................................... Savitri Ratho, J. This revision has been filed challenging the judgment and order of conviction dated 29.11.2001 passed by the learned Asst. Sessions Judge-cum-C.J.M., Rayagada in Sessions Case No.14 of CRL REV No.138 of 2006 Page 1 of 19 2001 convicting the petitioners for commission of offences punishable under Sections 399/402 of IPC and sentencing them to undergo R.I. for seven years and to pay a fine of Rs.3,000/- each, in default of payment to undergo R.I. for three months each for the offence under Section 399 of IPC and to undergo R.I. for a period of five years and to pay a fine of Rs.2,000/- each, in default of payment to undergo R.I. for two months each under Section 402 of IPC with a further direction that the substantive sentences are to run concurrently, and the judgment and order dated 16.02.2006 by the learned Addl. Sessions Judge, Rayagada in Criminal Appeal No.61 of 2001 confirming the conviction and sentence of the petitioners passed by the learned trial Court.
PROSECUTION CASE
2. The prosecution allegation in brief is that on 13/14.08.2000 night while the informant, S.I. of police Rayagada P.S. along with A.S.I. Dileswar Das, Constable 424-Santosh Kumar Deo, Constable- 44-Apartinath Jena and Constable-391-Brundaban Dora were performing anti dacoity patrolling, they received reliable information that a group of persons have assembled in a half constructed building located on the eastern side of Jagannath complex, New Colony, CRL REV No.138 of 2006 Page 2 of 19 Rayagada and were making preparation to commit dacoity. They rushed to the spot with two local witnesses, namely, Jagannath Jena (P.W.1) and Basanta Jena (P.W.5) of Rayagada town and found a group of persons were sitting inside the half constructed building. It was then 1.15 a.m. The place of assembly of the accused persons is a secluded place located on the eastern side of Jagannath complex, which is situated in new colony area of Rayagada town. Seeing the Police, the persons started running towards the nearby bushes. The Police chased them and could apprehend two accused persons. The other three managed to escape into the bushes in the dark. The two accused persons gave their identity and confessed that they had assembled and were making preparation to commit dacoity in the house of one Mr. Sharma, Bank cashier located in New Colony, Rayagada. Thereafter, the informant-S.I., Mr. Mund took personal search of these two accused persons and recovered red chilli powder packets, knife, sword, a toy pistol, which were concealed by them and were kept in their pant pockets and waist under the shirts worn by them. He recovered from their possession a bottle containing petrol, 11 pieces of tube light glass pieces, some iron nails and cotton, which were kept for using for preparation of petrol bomb. The informant seized those articles from them in presence of the witnesses. The two CRL REV No.138 of 2006 Page 3 of 19 accused persons were brought to the police station and the other accused persons could not be apprehended P.W.2, the S.I., K.C. Mund, lodged a written report at the Police Station on 14.8.2000 at 2.30 a.m. before the IIC of Rayagada P.S. and produced the accused persons before him.
DEFENCE PLEA
3. The defence plea is a complete denial of the occurrence. In their statements recorded under Section-313 of the Cr.P.C., they took the plea that they were selling fruits in the market and on account of rush near their shops, police assaulted them and when they protested, a false case was started against them.
WITNESSES
4. The prosecution has examined 10 witnesses while the defence did not examine any witness.
P.W.1-Jagannath Jena is an independent witness who had accompanied the informant and other police staffs to the place of occurrence in the relevant night and witness to seizure but did not support the prosecution case. P.W.2-Kishore Chandra Mund is the then S.I. of police, Rayagada Police Station and informant. P.W.3- Dileswar Das is the ASI of Police, Rayagada P.S. P.W.4 Aparti Nath Jena is the police constable who had accompanied the informant to CRL REV No.138 of 2006 Page 4 of 19 the spot. P.W.5-Basant Jena is an independent witness to seizure but did not support the prosecution case. P.W.6-S.V.T.N. Sharma and P.W.7-Visalaxmi are the persons of LIC Colony Rayagada town are the independent witnesses. P.W.8-Brundaban Dora and P.W.9- Santosh Kumar Deo are the police constables who had accompanied the informant to the spot. P.W.10-Kishore Kumar Dangayat is the IIC of Rayagada P.S. who is the I.O. of this case.
P.W.1 and P.W 5 have stated that on 14.08.2000, they were called in the night by the police and police seized one packet and they were asked to sign on the seizure list which they did. They denied the other suggestions given to them.
P.W.2, the informant has proved the FIR, Ext 4. He has stated that on 13.8.2000 he was S.I. of Police at Rayagada police station. On that day as per the direction of the I.I.C. along with P.W.3 Dileswar Das, the then A.S.I. of Police of Rayagada police station. P.W.4 constable No.44-A.N.Jena, P.W.8 constable No.391-B.B.Dora and P.W.9 constable No.424-S.K.Deo was performing anti dacoity patrolling at Rayagada town. At 12:50 A.M. he received reliable information that a group of persons had assembled in a half constructed house near eastern side of Jagannath complex at new colony, Rayagada and making preparation for committing dacoity. CRL REV No.138 of 2006 Page 5 of 19 He arranged two local witnesses P.W.1 Jagannath Jena and P.W.5 Basanta Jena and proceeded along with his staff to the spot of occurrence. At the spot, they found that five persons sitting inside the half constructed house talking something. At about 1:15 A.M., they went to them but seeing the police the culprits started running. They chased them and apprehended two of them while three escaped in the dark. The two accused persons gave their identity as Kala Ram and Sukanta Singh @ Landa. On personal search in presence of witnesses, he recovered one chilli powder packet from the right side Pant Pocket of accused Kala Ram and a knife, which was concealed inside his shirt. He prepared seizure list Ext. 1/1 in presence of the witnesses and his signature as Ext. 1/2. He made personal search of accused Sukanta Singh @ Landa and recovered one red chilli powder packet from his right side pant pocket and a toy pistol from his waist and a small sword, which was kept inside his shirt at the back. He seized the said articles and prepared the seizure list. He proved the same and marked as Ext.2/1 and his signature therein marked as Ext. 2/2. He took the two accused persons to the spot of occurrence i.e. inside that half constructed house and found that they had kept some iron nails, some tube pieces, some petrol in a bottle, some glass pieces and cotton pieces for preparation of petrol bomb. The accused persons CRL REV No.138 of 2006 Page 6 of 19 admitted that they had assembled there for committing dacoity in the house of one Mr. Sharma of Rayagada town. He seized the articles in presence of the witnesses and prepared seizure list at the spot. He has proved the seizure list Ext. 3/1 and his signature therein marked as Ext. 3/2. He brought the accused persons to the I.I.C. of Rayagada police station and lodged written report. He has proved the F.I.R. Ext.4 and his signature on the report Ext. 4/1. He has proved the articles, which have been seized, by identifying them in the court. M.O.-I is the knife, which was seized from accused Kala Ram. M.O.- II is the sword, which was recovered and seized from accused Sukanta Singh. M.O.-III is the toy pistol, which was recovered and seized from accused Sukanta Singh. MO.-IV is the bottle containing some petrol, which was also seized by him from the spot of occurrence. M.O.-V is some pieces of rubber tube, glass pieces, chilli powder packet and iron nails with cotton pieces.
The cashier of Indian Overseas Bank who has been examined as P.W 6 has stated that prior to the night of occurrence some persons were ringing his calling bell and going away on seeing the police patrolling party. His wife, P.W.7 has stated that prior to 12.08.2000, some persons were ringing their bell and trying to break open the door but on hearing the sound of police patrol jeep, they were going away. CRL REV No.138 of 2006 Page 7 of 19 EXHIBITS and M.Os.
5. The prosecution exhibited five exhibits. Ext.1/1 is the seizure list. Ext 2/1 seizure list. Ext 3/1 is another seizure list. Ext.4 is the F.I.R and Ext. 5 is the Spot Map.
M.O.I is the knife, M.O. II is the sword, M.O.III is the pistol, M.O. IV is the bottle containing petrol, M.O.V are the rubber tube, cotton, glass pieces and chilli packets.
JUDGMENT OF THE LEARNED TRIAL COURT
6. The learned trial court framed two issues for determination, namely:
i) Whether these accused persons were assembled along with other three persons, (who fled away from the spot), in a half constructed building near Jagannath complex of new colony, Rayagada for the purpose of committing dacoity?
ii) Whether these accused persons along with other three persons, who fled away from the spot, were making preparation for committing dacoity in the said half constructed building situated at New Colony, Rayagada near Jagannath temple?
7. The findings of the learned trial court are as under :
i) Excepting two independent witnesses - P.W.1-Jagannath Jena and P.W.5-Basanta Jena, all other prosecution witnesses have CRL REV No.138 of 2006 Page 8 of 19 supported the case of the prosecution and have also corroborated the testimony of the informant-P.W. 2.
ii) P.W. 2, the informant has specifically stated substantiating the facts in the F.I.R. which has been proved by him and marked as Ext.4.
iii) P.Ws. 4, 8 and 9 had accompanied P.W. 2 to the spot of occurrence and are eye witnesses to the occurrence and have fully corroborated the testimony of P.W. 2.
iv) They have stated that five persons were sitting and discussing something and seeing the police, they ran away but two were caught.
v) The two accused persons were searched and chili powder packet, toy pistol, sword and knife were covered from them.
vi) From inside the house where they were sitting, some petrol kept in a bottle, iron nails, cotton pieces, broken glass, small pieces of rubber tube were recovered which are used for preparing bomb.
vii) Evidence of P.Ws. 6 and 7 seems to be probable in view of evidence of P.W. 2 that prior to lodging of FIR, the accused admitted that they were preparing themselves to commit dacoity in house of P.W. 6.
viii) P.W. 10, the I.O has proved the spot map, Ext. 5.
ix) The accused persons were sitting in the dark place making preparation of petrol bomb.CRL REV No.138 of 2006 Page 9 of 19
x) Dacoits are usually using petrol bomb while committing dacoity.
xi) Evidence of P.Ws. 6 and 7 corroborates the testimony of the informant P.W.2 that accused were making preparation for committing dacoity in house of P.W.6.
xii) The admission of accused before the informant was made before the filing of FIR and hence will not be hit by Section 25 of the Indian Evidence Act. It is admissible under Section 21 of the Evidence Act as decided in the case of Bijaya Kumar Swain vs State of Orissa : 1992 OCR 289.
xiii) Prosecution has been able to prove its case beyond reasonable doubt.
xiv) In view of the nature of the offence, benefit under the Probation of Offenders Act should not be given to the petitioners.
JUDGMENT OF THE LEARNED APPELLATE COURT
8. The learned appellate Court confirmed the finding of the learned trial court that the admissions made by the accused before the police were made before lodging of FIR and hence were admissible under Section 21 of the Evidence Act. It also held that the police officers had no reason to falsely implicate the accused persons and mere suggestions given to them was not sufficient to prove the CRL REV No.138 of 2006 Page 10 of 19 defence plea. It confirmed the conviction and sentence of the petitioners and dismissed the appeal.
SUBMISSIONS
9. Mr. B.S. Das Parida, learned counsel for the petitioner has submitted that in absence of five persons, these two petitioners cannot be convicted under Sections 399 and 402 of IPC. It is also submitted that merely showing that five persons including the appellants were found in a place quite close to the residential locality of the town at 1.00 A.M. cannot establish that they had assembled for the purpose of committing dacoity or making preparation to that effect and therefore, the learned court below has committed an error by convicting them under Sections 399 and 402 of IPC. He has also submitted that the alleged admission of the petitioners before the police that they had assembled to commit dacoity and were making preparations is not admissible against them as because even though FIR was registered later but they were had been apprehended by the police while the other co-accused allegedly escaped.
10. Mr. M.R. Mishra, learned Addl. Standing Counsel submitted that basing on the statement of the witnesses and material facts, the learned trial Court has rightly passed the impugned order CRL REV No.138 of 2006 Page 11 of 19 and the same has been rightly affirmed by the learned appellate Court which may not be interfered with at this stage.
STATUTORY PROVISIONS
11. Sections 21 and 25 of the Indian Evidence Act, which relevant are extracted below.
"21. Proof of admissions against persons making them, and by or on their behalf.-
Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:-
(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32. (2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. (3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission."CRL REV No.138 of 2006 Page 12 of 19
"25. Confession to police-officer not to be proved.--No confession made to a police-officer, shall be proved as against a person accused of any offence."
JUDICIAL PRONOUNCEMENTS
12. In the case of Bijaya Kumar Swain ( supra) the accused had earlier reported the matter in the police station and a station diary entry had been made. This had been proved by the I.O. and had been marked as an exhibit and the same was held to be an admission of the accused relevant under Section 21 of the Indian Evidence Act .
In the case of Chaturi Yadav vs State of Bihar : (1979) 3 SCC 430, the Supreme Court in similar circumstances has held as under : -
"The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 A.M. does not, by itself, prove the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous CRL REV No.138 of 2006 Page 13 of 19 place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of, by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Section 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court."
In the case of Aghnoo Nagesia vs State of Bihar : 1965 SCC OnLine SC 109, the appellant had murdered his aunt, her daughter, her son-in-law and her grandson. He then went to the police station and lodged the FIR, stating how he had murdered them, where he had hidden their bodies, and with which weapon he had murdered them. Relying on his confessional statements, the trial Court convicted him under Section 302 of the I.P.C. The High Court upheld the conviction. By special leave, he appealed to the Supreme Court. The Supreme Court held that the confession given in the FIR by the appellant to the police officer is barred by Section 25 of the Indian Evidence Act and CRL REV No.138 of 2006 Page 14 of 19 cannot be admitted as evidence. The relevant portions of the decision are extracted below :-
"For the purposes of the case, we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the tan,-', the discovery of the dead bodies and the tangi in consequence of the information, the discovery of a blood-stained chadar from the appellant's house and the fact that he had gone to Dungi Jharan Hills on the morning of August 11, 1963. This evidence is not sufficient to convict the appellant of the offenses under s. 302 of the Indian Penal Code.
In the result, the appeal is allowed, the conviction and sentence passed by the Courts below are set aside, and the appellant is directed to be set at liberty forthwith. Appeal allowed."
ANALYSIS AND CONCLUSION
13. I have gone through the judgments of both the courts below and perused the evidence of the witnesses and the exhibits. CRL REV No.138 of 2006 Page 15 of 19
14. In criminal jurisprudence, it is the settled principle of law that the evidence on record must conclusively point to the guilt of the accused beyond reasonable doubt and in case in absence of independent corroboration, if the evidence of official witnesses does not inspire confidence, then the charges framed against the accused must fail and the accused will be entitled for acquittal.
15. The two independent witnesses have not supported the prosecution case other than saying that they have signed on a packet and on a document. But merely because the independent witnesses have not supported the prosecution case cannot be a ground to disbelieve the prosecution case. But the evidence of the official witnesses has to be carefully scrutinized.
16. In the present case, scrutiny of the evidence of the official witnesses will not be required in view of the error committed by the both the Courts below who have placed reliance on the purported "admission" of the petitioners before P.W.2 the informant who is a police officer.
17. The facts of the case of Bijaya Kumar Swain ( supra) and this case are total different and the ratio of that decision has been incorrectly utilised in this case by the learned trial court. The so called CRL REV No.138 of 2006 Page 16 of 19 "admission" of the accused persons in this case were in the nature of a confession before the police and squarely hit by Section 25 of the Indian Evidence Act. The petitioners were in actual custody of the police as they had tried to run away but had been caught and detailed by the police.
18. For proving an "admission", the admission has to be marked as an exhibit and confronted to the maker. In the facts of the present case the admission of the petitioners was a confession before the police and hence question of proving it did not arise.
19. P.W.6 (the cashier) and P.W.7 (his wife) have stated that prior to 12.08.2000 (the date of occurrence) some persons were pressing their calling bell and trying to break open their door, but going away on seeing the police patrol Party. But these two witnesses have neither reported the matter to the police, nor claimed to have seen the petitioners or identified them, hence their evidence cannot be held to implicate the petitioners.
20. Another feature of the prosecution case which raises a doubt in the mind of the Court is regarding the circumstances of seizure. No charge-sheet has been filed against the petitioners under the Arms Act nor has any charge been framed against them for committing any CRL REV No.138 of 2006 Page 17 of 19 offence under the Arms Act. This was imperative as it is the case of the prosecution that a sword and a knife (which are dangerous weapons) were allegedly recovered from them.
21. The seizure of sword and knife from the petitioners therefore does not inspire confidence.
22. In this case, there is no worthy evidence to connect the petitioners with the commission of the crime but the trial court and appellate court have erroneously recorded finding of conviction and awarded sentence against the appellants under Sections 399 and 402 IPC. Their conviction and sentence are, therefore, not sustainable in the eye of law and liable to be set aside.
23. In view of the above discussion, the decisions referred to and the submissions of the learned counsel, the impugned judgments are liable for interference.
24. The judgment and order of conviction dated 29.11.2001 passed by the learned Asst. Sessions Judge-Cum-C.J.M., Rayagada, in Sessions Case No.14 of 2001 and judgment dated 16.02.2006 passed by the learned Addl. Sessions Judge, Rayagada in Criminal Appeal No.61 of 2001 are set aside.
25. The Criminal Revision is allowed.
CRL REV No.138 of 2006 Page 18 of 19
26. As the petitioners are stated to be on bail, their bail bonds are discharged.
27. The trial Court records be returned forthwith to the learned trial court with a copy of this judgment.
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(Savitri Ratho) Judge Orissa High Court, Cuttack Dated, the 30th May 2025/RKS Signature Not Verified Digitally Signed Signed by: RANJAN KUMAR SETHI Reason: Authentication Location: ORISSA HIGH COURT Date: 09-Jun-2025 19:57:19 CRL REV No.138 of 2006 Page 19 of 19