Pramod Pradhan @ Pramod Kumar Pradhan & Five others vs State Of Odisha

D. Dash, J

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.26 of 2010/S.T.-52 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 Imprisonment (‘R.I.’) for a

period of three years and fine of Rs.2000/- in default (i.d.) 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 fine of Rs.2000/-i.d. to 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. to R.I. for one month with the stipulation that the

substantive sentences would run concurrently.

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, the members of the Hindu as

well as Christian community hurled attacks and counter attacks.

When such situation was prevailing; on 26.08.2008, around 9.20 a.m., the accused persons along with others consisting of more than sixty (60),

forming an unlawful assembly armed with deadly weapons giving slogans as Jay Bajrangbali etc came to the village Gasukia and ransacked the house

of Maisa Mallick and others. It is said that they trespassed into the dwelling house of Maisa Mallick, broke open the doors and windows, 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 under the signature of Maisa Mallick, the Informant who has been examined in the Trial as P.W.1, on receipt of the information in writing,

registered P.S. Case No.157 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.

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 from their side. The defence examined none.

The Trial Court, on scrutiny of the prosecution evidence and upon their critical examination at its level, has finally come to the conclusion that the

prosecution has established the charges against the accused persons (6 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.

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.

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 other surrounding circumstances, create grave doubt in 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.

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 out 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 having left his family members inside the jungle, was alone remaining in the house to guard the same and while

staying like that, he 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.

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 17.11.2008 by the Police Officer attached

to K.Nuagaon Police Outpost (P.W.6).

It reveals from the said Ext.1 that P.W.1 has put in the date as 08.10.2008 (Marked Ext.1/1). There has been an inordinate delay of more than two

and half months in receiving that FIR which was firstly of all was entered in the Station Dairy Book of the Police Outpost by (P.W.6) and on that

date, the same was sent to the IIC, Balliguda P.W. (P.W.7) who registered the case by drawing formal FIR. 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 unexplained. Moreover, when P.W.1 has stated

to have sent Ext.1, by Post, P.W.6 has made no endorsement in that regard in Ext.1. The Informant (P.W.1), in his evidence, has simply said that

since there was riots and curfew, he could not report the incident to the police. It is said that while in the relief camp, one Pravakar scribed the report

for him, which he sent by Post to the Police Outpost. However, this Ext.1 does not find mention of any endorsement of that Pravakar nor his signature

finds place thereon at any place. Said Pravakar has not been cited or examined as a witness from the side of the prosecution in saying to have written

said report under the instruction of P.W.1 and he has not come forward to say that the FIR version is that of P.W.1 and nonelse. P.W.1 is also not

saying that Ext.1 being written by said Pravakar had been readover to him and he finding the same to have been correctly written as stated by him, he

had put his signature thereon. On the other hand P.W.6, the Police Officer attached to the Police Outpost states to have received this Ext.1 from

P.W.1 who had presented the same to him. All these aspects of the case have also not been investigated by the Investigating Officer (I.O-P.W.7) to

dispel the doubts.

Careful look being given at Ext.1, it is seen that the names of ten persons have been given as the members of the mob putting them under the category

of “Dangakaris†and therein it has been stated that as if only those persons came there by giving slogans when it is not said that there were

indentified to be there in the assembly consisting of 60-70 persons. P.W.1 has, however, stated that there were 60-70 persons in the mob and they

came by raising hullah. He has simply stated that these accused persons who faced the Trial were there among them. It is not stated as to whether

they were holding any weapon, muchless as to their type. He has not also 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 has not stated as to how he could remember their names when they are not co-villagers and

hail from different villages. It is not further stated as to what they did and whether they were in any way active in any manner in their participation or

just silently watching. P.W.3 has also stated in the same direction, so also P.W.4. He, however, in addition to other witnesses has stated that the total

members of the mob were around 200-300 persons and they ransacked the house and burnt those. If that version is 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.

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 30.07.2010 passed by the learned Ad hoc Additional

Sessions Judge, F.T.C. No.II, Kandhamal, Phulbani, in S.T. Case No.26 of 2010/S.T.-52 of 2010 are liable to be set aisde which are hereby so done

and the accused persons stand acquitted of the charges.

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.

………………………