SK. YAQUINUDDIN AND ANOTHER vs STATE OF ORISSA

S. K. SAHOO, J. Â

This is an application under section 482 of Cr.P.C. filed by the petitioners Sk. Yaquinuddin & Sk. Mahiuddin challenging the first information report in

Soro P.S. Case No.87 of 1991 and also continuance of further proceeding in G.R. Case No. 161(A) of 1991 which arises out of the said first

information report pending in the Court of learned Judicial Magistrate First Class, Soro. On 08.04.1991 the case was instituted on the first information

report submitted by one Giridhari Prusty wherein it was alleged that on 28.03.1991 in between 1.30 p.m. to 2 p.m., six persons committed house

breaking during day time breaking open the lock of the house of the informant, voluntarily causing hurt and committing theft of cash and gold

ornaments worth of rupees one lakh in the house of the informant. After completion of investigation, charge sheet was submitted on 07.04.1992

against eight accused persons including the petitioners who were shown as accused nos. 6 and 7 in the charge sheet.

It appears that some of the co-accused persons have faced trial in the Court of learned Addl. Sessions Judge, Balasore in Sessions Trial No.32/175 of

1995 for offences punishable under sections 454, 395 and 436 of the Indian Penal Code and learned trial Court vide judgment and order dated

20.02.1997 has been pleased to acquit the accused persons of all the charges. Mr. Sanjay Kumar Das, learned counsel for the petitioners filing the

certified copy of the judgment in respect of the co-accused persons contended that there is no specific overt act alleged against the petitioners and

when the co-accused persons have been acquitted of all the charges, no fruitful purpose would be served in allowing the proceeding to continue in

respect of the petitioners and it would be a sheer wastage of valuable time of the Court. He further submitted that as per the charge sheet, the

nicknames of the accused nos.6 and 7 are Sk. Kalla and Sk. Lalla and the two petitioners Sk.Yaquinuddin and Sk.Mahiuddin are not known with such

nicknames and therefore, it would not been proper to allow the proceeding to continue in respect of the petitioners. To substantiate such aspects, he

drew the attention of this Court to the voter identity card, residential certificate, H.S.C. certificate and other documents. He placed reliance in the

case of Santosh Kumar Maity -Vrs-. State of Orissa reported in 2006 (II) Orisa Law Reviews 308. Mr. Arupananda Das, learned Addl. Government

Advocate for the State on the other hand submitted that in the first information report, it is mentioned that the eldest son of Sk. Sallamuddin has

committed the crime along with other coaccused persons and the petitioners are the sons of Sk. Sallamuddin and the Investigating Officer also found

materials against eight accused persons and submitted charge sheet and therefore, it cannot be said that there is no prima facie case against the

petitioners. Learned counsel for the State further submitted that merely because the co-accused have been acquitted after facing trial, the same

cannot be a ground to quash the proceeding in respect of the petitioners.

The background of the case is communal riot at Soro in the district of Balasore which commenced on 28.03.1991 and continued for three days.

Several houses belonging to Hindu and Muslim communities were burnt by fire and people belonging to different communities were assaulted and got

injured. The death of the people belonging to Muslim community occurred during riot and about 30 to 40 criminal cases were registered relating to the

communal disturbances including this case. As many as eight murder cases occurred during communal riot at Soro which were also investigated and

those murder cases relate to death of the people of Muslim community. The first information report which was lodged on 08.04.1991 relates to the

incident dated 28.03.1991 and it has been registered against four named persons and also against the eldest son of Sk. Sallamuddin and another

unknown person. The Investigating Officer during course of investigation examined the witnesses and found prima facie evidence against the eight

accused persons including the petitioners and accordingly submitted charge sheet.

The petitioners were shown as accused nos.6 and 7 in the charge sheet for the offences under sections 454, 395 and 436 of the Indian Penal Code.

On perusal of the judgment in respect of the co-accused persons produced by the learned counsel for the petitioners, it appears that the informant was

examined as P.W.1 and he supported the prosecution case and he stated that the accused persons along with some others came towards his house

and they broke open the window and door and entered inside his house and broke the window railing and pelted stone towards his house and they

threw broken glass towards his house and he along with his nephew Susanta Kumar Prusty (P.W.2) were present in the ground floor of his house and

his family members out of fear went to the upstairs. He further stated that as a result of stone pelting, two to three teeth of his lower jaw were

uprooted. He further stated that the accused Jahir Hussain poured petrol and set fire to his house and thereafter he went to another room and the

accused persons broke the window railing and entered inside that room and they were armed with sword, iron rod and knives etc. and assaulted him

as a result of which his left hand wrist was fractured. He further stated that the accused persons also inflicted blows by means of knives on his left

hand and left leg and as a result of assault, he fell down on the ground and then the accused persons broke open his iron chest and took away cash of

Rs.25,000/- along with twenty bharis of gold ornaments and thereafter they decamped with the cash and gold ornaments. P.W.1 was hospitalized at

S.C.B.

Medical College and Hospital, Cuttack. Learned trial Court after assessing the evidence of the informant and other witnesses examined on behalf of

the prosecution has been pleased to hold that the incident in question took place on 28.03.1991 and the F.I.R. was lodged on 08.04.1991 after long

lapse of time. There is no reasonable explanation forthcoming from the side of prosecution to explain such inordinate delay in lodging F.I.R. Learned

trial Court further held that the evidence of P.Ws.2 and 3 who are said to be the witnesses to the occurrence do not inspire confidence as they do not

corroborate the evidence of P.W.1 in material particulars. After considering the evidence, it was held that the prosecution has not been able to prove

the charges against the accused persons beyond all reasonable doubt.In case of Santosh Kumar Maity -Vrs.- State of Orissa reported in 2006 (II)

Orissa Law Reviews 308, it has been held as follows:-

 “5……..Giving conscious thought to the facts of the present case in the touch stone of the aforesaid decisions, this Court feels that the

prosecution has totally failed to substantiate their case even against the main accused, i.e., the son of the present petitioner, Sidheswar Maity,

inasmuch as neither the eye witnesses or relatives nor any other independent witnesses supported the prosecution case. In fact no eyewitness was

examined by the prosecution. The Sessions Court after threadbare discussion of the entire evidence and on being satisfied that the prosecution has

failed to establish the case against the said accused was pleased to acquit him and the said order has attained finality. Perusal of the materials of U.D.

case and other materials also reveal that no specific allegations have been made against the present petitioner, who is the father and an old man. No

overt act has been attributed nor any nexus has been found out between the present petitioner and the alleged commission of offences. Thus, this

Court is satisfied that no prima facie case against the petitioner for commission of the alleged offences has been made. The principal accused having

already faced trial and having been acquitted, this Court feels that continuance of the 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 acquittalâ€. After hearing the learned counsel for the petitioners and learned counsel for the State, there is no dispute that the Investigating

Officer after going through the statement of the informant and other witnesses and materials collected during investigation found prima facie case

against the two petitioners and others and accordingly submitted charge sheet against them. Whether the nicknames of the petitioners have been

incorrectly reflected or not has to be adjudicated by the learned trial Court. If the witnesses to the occurrence who have named the petitioners identify

them during trial, merely because the nicknames reflected in the charge sheet is incorrect, that cannot be a ground to disbelieve the prosecution case.

This is not a case like the case of Santosh Kumar Maity (supra) where the eye witnesses, the relatives of the deceased and other independent

witnesses did not support the prosecution case.

At the stage of quashing the F.I.R. or the criminal proceeding invoking the power under section 482 Cr.P.C., this Court is not required to conduct a

mini trial and meticulously weigh the evidence on record and appreciate the same to arrive at a finding whether there are sufficient materials to

convict the accused persons or not. That is the domain of the trial Court. When the informant has supported the prosecution case while deposing in the

case of co-accused persons and the learned trial Court has assigned some reasons for acquitting the co-accused persons, what materials would come

against the petitioners in the trial cannot be forecast and whether those materials would be sufficient to convict the petitioners or not are to be taken

care of by the learned trial Court, not by this Court exercising power under section 482 of Cr.P.C.

I had the occasion to deal with a similar point in case of Hidayat Khan @ Hidayatullah Khan -Vrs.- State of Orissa reported in (2017) 68 Orissa

Criminal Reports 945, wherein I have held as follows:-

“7......There is no settled principle of law that whenever some accused persons are acquitted after facing trial or discharged by the trial Court, the

co-accused should also be discharged or the proceeding in respect of such co-accused should also be quashed. Absconding accused cannot be given

premium to frustrate the justice or to misuse the process of law by treating him at par with those accused who have shown respect for legal processes

and have appeared and have not evaded their arrest.....â€​

In view of the foregoing discussions, I am of the view that merely because the co-accused persons have been acquitted after facing trial and the

nicknames of the persons shown as accused nos.6 and 7 in the charge sheet is stated to be not of the petitioners, it would not be proper to hold that

the continuance of the criminal proceeding against the petitioners in spite of acquittal of the co-accused persons would be an abuse of

process.Accordingly, the CRLMC application under section 482 Cr.P.C. being devoid of merits, stands dismissed. Â Â Â Â Â Â Â Â Â Â Â