Aditya Kumar Rath vs State of Orissa

S.C. Parija, J.—Heard Learned Counsel for the Petitioner and learned Addl. Standing Counsel.

This application u/s 482 Code of Criminal Procedure has been filed by the Petitioner challenging the continuance of the criminal proceeding against him under Sections 307/34 I.P.C. in G.A.Case No. 515 of 1994 pending before the learned S.D.J.M., Bhubaneswar.

The case of the prosecution, in brief, is that the informant Dibakar Rath (P.W. 2) was running shop No. 2 in Market No. 1 of M.L.A. Colony, Unit-4, Bhubaneswar. On 14.2.1994 at about 6.30 A.M. while the informant was working inside his shop, all of a sudden accused Kailash being armed with a sword, accused Landa with a katari, accused Madan with a thenga and other some unknown accused persons being armed with some deadly weapons forcibly entered into the shop of the informant by abusing filthy language and started assaulting the informant. While informant tried to save himself, accused Kailash assaulted him on shin on left leg and on left palm by means of the sword. Accused Land assaulted the informant on his right hand by means of Katari Other two unknown accused persons assaulted the informant on his person and hill of right leg by means of farsa and thenga respectively. The informant was rescued by Dibakar Mohapatra (P.W. 1) and Ors. who were present there. Thereafter, informant lodged the F.I.R. at Kharvelanagar Police Station, on the basis of which P.S. Case No. 52 of 1994 was registered and investigation was undertaken and subsequently charge sheet was filed and cognizance was taken under zs 307/34 I.P.C.

The main contention of the Petitioner is that in the meantime, the main accused, namely, Kailash Rath, who is the son of the informant, i.e., Dibakar Rath, faced trial and the learned Trial Court after considering the evidence on record, as adduced by the prosecution and after taking into consideration the case of the prosecution in entirety, acquitted said Kailash Rath '' Kaya on the ground that the prosecution failed to prove the charges against the accused beyond reasonable doubt. Hence, the Petitioner submits that the continuance of the criminal proceeding in the split up case against the present Petitioner would serve no useful purpose, as there is bleak chance of ultimate conviction.

The Trial Court after examination of witnesses came to the following findings:

From the discussions above, the following circumstances create grave doubt on the prosecution case against the accused persons:

(i) The evidence of P.W. 2 does not reveal when he lodged the F.I.R. whether before he was medically examined or after medically examined;

(ii) The neighbouring shop owners, the inmates of M.L.A. Colony and the workers of shop No. 2 have not been examined by the prosecution;

(iii) All the witnesses those who are claimed to be eye-witnesses have been turned hostile;

(iv) The medical requisition being Ext. 2 revealed of falling down of P.W. 2 on the ground and he sustained injuries;

(v) There is no explanation of Exts. 2 and 3 to be used in the plain paper, though prescribed form is available;

(vi) P.W. 2 has the enimical term with the accused since 1991 as revealed from his evidence;

(vii) No weapons of offence has been seized by the prosecution.

Accordingly, the learned Trial Court came to hold that the prosecution has failed to prove the charges against the accused beyond reasonable doubt and proceeded to hold that the accused is not guilty of offence under Sections 307/ 34 I.P;C. and accordingly acquitted him.

The Petitioner contents that when the main accused person has already been acquitted by the learned Trial Court on the findings as detailed above and having acquitted the main accused Kailash Rath on the ground that the prosecution failed to prove the charges against the said accused, no useful purpose would be served in continuing the proceeding against the Petitioner in the split up case. The Petitioner in this regard relies on a decision of this Court in the case of Santosh Kumar Malty Vs. State of Orissa, wherein this Court came to the conclusion that the principal accused having already faced trial and having been acquitted, the continuance of criminal proceeding against the Petitioner after lapse of six years would undoubtedly amount to abuse of the process of law inasmuch as there is bleak chance of conviction and there is every likelihood that the case will end in acquittal.

The Petitioner also relies on a decision of the Supreme Court in the case of Central Bureau of Investigation Vs. Akhilesh Singh, in support of his said contention that when the main accused has already been acquitted in trial, the continuance of the criminal proceeding against the present Petitioner would be an abuse of process of law, especially when there is bleak possibility of ultimate conviction. The Petitioner also relies on another decision of this Court in the case of Upendra Sahoo '' Upendra Kumar Sahoo v. State of Orissa reported in (2006) 35 OCR 171, wherein this Court took the similar view and quashed the criminal proceeding.

In the instant case, the main accused, namely, Kailash Rath having already been acquitted by the judgment of the Trial Court dated 28.02.2005 with the specific finding that the prosecution has failed to prove the charges against the accused beyond reasonable doubt as already detailed above and accordingly the Trial Court having found the accused not guilty of offence under Sections 307/34 I.P.C., I feel that continuance of the criminal proceeding against the present Petitioner, in the split up case, would be an abuse of process of law, especially when there is bleak possibility of conviction.

In view of the aforesaid facts and circumstances, this Court feels that no useful purpose will be served by allowing continuance of the criminal proceeding against the Petitioner and ends of justice would be better served if the proceeding in the split up G.R. Case No. 515 of 1994 pending in the Court of S.D.J.M., Bhubaneswar is quashed.

Accordingly, this application u/s 482 Code of Criminal Procedure is allowed and the proceeding in G.R. Case No. 515 of 1994 pending against the Petitioner in the Court of S.D.J.M., Bhubaneswar is hereby quashed.

The Crl.M.C. is accordingly allowed.

Appeal allowed.