Bhajaman Sahu vs State Of Orissa

V. Narasingh, J.

The petitioner-accused in this case under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.” for brevity) seeks quashing of criminal proceeding in G.R. Case No. 145 of 1995 on the file of the Learned S.D.J.M., Hindol, arising out of Balimi P.S. Case No. 48 of 1995.

The brief facts germane for just adjudication are stated hereunder.

(I) One Nabakishore Pradhan lodged an F.I.R registered as Balimi P.S. Case No. 48, dtd. 27.11.1995 registered under Sections-302/307/109 of the I.P.C against the petitioner as accused No.2, and One Rajkishore Sahu (Accused No.1) and Subarna Jena.

After investigation, charge-sheet was filed against the present petitioner and two other accused namely Rajkishore Sahu and Subarna Jena.

The present petitioner is admittedly an absconder.

On account of non-apprehension of the absconding accused persons, the case against Rajkishore Sahu was split up and was committed to the Court of Learned Sessions Judge, Dhenkanal-Angul and trial was numbered as S.T. No. 74-D of 1996.

During the pendency, one of the absconding accused-Subarna Jena surrendered before the learned S.D.J.M., Hindol and after commitment, faces trial in S.T. No.50-D of 1997.

Since, both the Sessions Trial No. 74-D of 1996 and 50-D of 1997 arise out of the same G.R. Case, both the cases were clubbed together and common judgment was passed by the learned Sessions Judge, Dhenkanal-Angul in S.T. No.74-D of 1996.

Both the accused were charged under Sections 302/307, I.P.C.

By judgment dtd. 07.04.1998 at Annexure-3, the learned Trial Court on evaluation of evidence while acquitting accused Subarna Jena of the charges levelled against her, found Rajkishore Sahu guilty under Section 302/307 of I.P.C and convicted him to undergo imprisonment for life.

It is apt to state here that accused Rajkishore Sahu was charged under Section-302, I.P.C. for having committed the murder of co-villager – Tankadhar Pradhan (the deceased), on 27.11.1995 at about 9.30 A.M. He was further charged under Section-307, I.P.C. for having attempted to cause murder of another co-villager-China Dei (referred to as injured) on the same day at about the same time.

Accused-Subarna Jena stand charged under Section-302, I.P.C read with Section 109, I.P.C for having abated accused-Rajkishore Sahu in causing the murder and attempting to caused death of the injured.

Learned counsel for the petitioner has strenuously urged that even accepting the F.I.R. at its face value no case is made out against the petitioner.

It is further stated that two other co-accused namely Rajkishore Sahu and one Subarna Jena, faced trial and by judgment dtd. 07.04.1998 at Annexure-3, while the learned Trial Court convicted Rajkishore Sahu-the accused No.1 therein, on scrutiny of the materials on record and analysing the evidence of P.Ws.6 and 7 acquitted Subarna Jena.

It is stated with vehemence that the petitioner is at all fours with the said Subarna Jena and since on scrutiny of materials vis-à-vis Subarna Jena the learned Trial Court has acquitted her, it is stated that asking the petitioner to face trial would be an exercise in futility.

It is stated at the Bar that, the judgment of acquittal vis-à-vis Subarna Jena has attained finality.

To substantiate his submission, the learned Counsel for the petitioner relies on the judgments reported in (2005) 30 OCR (SC) 201 in the case of Central Bureau of Investigation Vs. Akhilesh Singh, 2005 Vol-II OLR- 386 in the case of Kanhu Behera Vs. State of Orissa and also (2008) 41 OCR-233 Aditya Kumar Rath Vs. State of Orissa.

The learned Counsel for the petitioner has also taken this Court through the evidence of P.Ws.6, 7 & 8 who deposed about the previous enmity of Rajkishore Sahu qua the deceased and submitted that since on close scrutiny of the evidence of the said P.Ws. Subarna Jena was acquitted and since the present petitioner is similarly circumstanced, he ought not to be directed to face the rigours of trial after lapse of 24 years.

Per contra the learned counsel for the State submits that, it is trite law that the evidence on record is related to the accused who is in the dock and that the co-accused, who has not faced trial cannot take advantage of such evidence and has countered the arguments of the learned Counsel for the petitioner that factually also the petitioner is not similarly placed with the Subarna Jena who has been acquitted.

The standard and scale of evaluation of an order of acquittal to be relied upon in the case of a co-accused who has not gone through the grind of trial has been exhaustively dealt with by the Apex Court in Yanob Sheikh @ Gagu Vrs. State of West Bengal (2013) 6 SCC 428 Paras-24 & 26 are relevant for adjudication is quoted hereunder:

“ 24. xxx xxx xxx xxx

It is only where the entire case of the prosecution suffers from infirmities, discrepancies and where the prosecution is not able to establish its case, the acquittal of the co-accused would be of some relevancy for deciding the case of the other ”.

and in Para-26 it has been held thus;

“ 26. xxx  xxx  xxx  xxx

The Court has to screen the entire evidence and does not extend the threat of falsity to universal acquittal. The court must examine the entire prosecution evidence in its correct perspective before it can conclude the effect of acquittal of one accused on the other in the facts and circumstances of a given case”.

On the touchstone of Law laid down by the Apex Court in the case referred to above the case at hand needs to be scrutinized as to whether the proceedings vis-à-vis the petitioner can be quashed taking into account the submission of learned Counsel of the Petitioner that directing him to face trial would be an exercise in futility, in view of acquittal of one of the accused (Subarna Jena).

The analysis vis-à-vis the evidence of P.Ws. 6 and 7 is at Paragraph No. 20 of the Judgment.

But it can be seen that such analysis is in respect of the accused-Subarna Jena and there is no findings and in fact could not have been any findings relating to the absconding accused person, i.e. the petitioner.

The further contention of the petitioner that no case is made out even if the F.I.R is accepted at its face value does not merit consideration. It is the settled position of law that the F.I.R is not an encyclopedia and cannot be relied upon at face value to arrive at a finding relating to the guilt or innocence of accused. In this context reference can be made to the judgments of the Apex Court reported in Bishna Vs. State of West Bengal (2005)12 SCC 657 and Motiram Padu Joshi Vs. State of Maharashtra (2018) 9 SCC 429.

The Judgments relied on by the learned Counsel for the petitioner are distinguishable on facts.

(i) In first judgment reported in 2005 30 OCR (SC) 201 what weighed with the Apex Court is that the principal accused, who is alleged to have hatched the conspiracy was discharged.

Whereas in the case at hand, there is materials on record that the accused who faced trial and convicted was instigated by the present petitioner.

So far as the judgment reported in 2005 (II) OLR 386 is concerned from the nature of the accusation, this Court held that the principal accused having already been acquitted in a full fledged trial the continuance of the criminal proceeding against the petitioner therein would be an exercise in futility.

The nature of the allegations qua the petitioner in the case at hand have to be tested in the trial, more so when admittedly one of the accused who faced trial has been found guilty and convicted.

The 3rd judgment on which the reliance is placed by the learned counsel for the petitioner i.e. 2011 41 OCR 233, it can be seen that unlike in the present case, the principal accused therein Kailash Rath, who faced the trial was acquitted, whereas in the present case one of the accused was convicted.

On careful scrutiny, since Rajkishore Sahu, one of the accused persons has been convicted under Section-302 of the I.P.C, at this stage, on an analysis of evidence on record, it cannot be said that the acquittal of the co-accused-Subarna Jena would ennure to the benefit of the present petitioner accused of commission of offence inter alia under Section-302, I.P.C.

Accordingly, this Court is not inclined to admit this CRLMC and the same stands dismissed.

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