The High Court · 2025
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GOVERNMENT APPEAL NO.7 OF 2002 judgment dated 21.01.1999 passed by (From learned Second Additional Sessions Judge, Cuttack in Sessions Trial No.69 of 1997 (15/97) State of Orissa …. Appellant -versus- Shankar Behera (since dead) & others …. Respondents Advocate(s) appeared in this case:- For Appellant : Mr. Satyabrata Mohanty, AGA For Respondent No.3
Legal Reasoning
: Mr. Sudipta Panda, Advocate CORAM: JUSTICE B.P. ROUTRAY JUSTICE MURAHARI SRI RAMAN B.P. Routray, J. JUDGMENT 27th January 2025 1. Heard Mr. Satyabrata Mohanty, learned Additional Government Advocate for the Appellant-State and Mr. Sudipta Panda, learned counsel for Respondent No.3. 2. During pendency of the present appeal, Respondents No.1, 2, 5, 10 and 11 have died. As such, the appeal has been abated against them and confined in respect of Respondents No.3, 4 and 6 to 9 only. G.A.No.7 of 2002 Page 1 of 8 3. Mr. Sudipta Panda, learned counsel appears for Respondent No.3 and rest of the Respondents are left unrepresented. 4. The charges arrayed against all the accused persons are under Sections 148, 364, 302, 201 read with Section 149 of the Indian Penal Code and Section 27 of the Indian Arms Act. 5. It is alleged, as per the prosecution case, that on 08.03.1996 at around 9 p.m. a fire accident broke out in the house of one Dharamananda Behera of Jobra Majhi Sahi under Malgodown Police Station. The village people were while engaged in extinguishing the fire, at that time, the accused persons entered and searched for one Babu Sethi. Without finding him there, his brother, namely, Bijaya Kumar Sethi (Dhana) (hereinafter referred to as “the deceased”) was kidnapped by the accused persons at gun point. Later on, his dead body was found from a Septic tank near the house of one Lahir Babu on next morning. Accordingly, F.I.R. was registered by P.W.4 scribed by P.W.1. 6. The prosecution in order to establish the charges, examined ten witnesses in total and exhibited twelve documents including the F.I.R. (Ext.1), Inquest Report (Ext.3), Spot Map (Ext.12), Chemical Examination Report (Ext.9) etc. Defence did not examine any witness nor did adduce any sort of evidence on their behalf. G.A.No.7 of 2002 Page 2 of 8 7. Amongst the witnesses examined on behalf of prosecution, P.W. 8, 9 and 10 are the Investigating Officers. P.W.3 is the Doctor, who conducted postmortem examination over the dead body of the deceased. P.W. 5 and 6 are Police Photographer and Scientific Officer respectively. P.W. 1, 2, 4 and 7 are stated to be the eyewitnesses to the occurrence. 8. The entire prosecution case relies on the evidence of those alleged eye witnesses Viz. P.W. 1, 2, 4 and 7 and out of them, P.W.2 is stated to be the key witness, who claimed to have not only seen the kidnapping, but also the alleged assault on the deceased resulting his death. P.W.1, 2 and 7 have claimed to be the eyewitnesses of kidnapping of the deceased by the accused persons. In the opinion of learned Trial Judge, the evidence of those alleged eyewitnesses are unworthy of credibility to bring home the charges against accused persons. The learned trial Judge has vividly discussed the evidences of such witnesses to test their credibility and worthiness in proving the prosecution case. 9. It needs to be mentioned here that homicidal nature of death of the deceased is undisputed and has been established through the evidences of prosecution witnesses including P.W.3 and his report under Ext.4, as well as the inquest report and other documents. G.A.No.7 of 2002 Page 3 of 8 10. Next coming to see complicity of the accused persons, as stated by those alleged eyewitnesses Viz. P.W. 1, 2, 4 and 7, the accused persons, namely, Biju, Babula, Sukana, Sankar and Susa have been named specifically in kidnapping the deceased and committing his murder. Among the afore-stated accused persons, Biju (Respondent No.10), Babula (Respondent No.2) and Sankar (Respondent No.1) died and the appeal has been abated against them. The only remaining accused, as named by those prosecution witnesses, is Sukuna (Respondent No.3). 11. As it found from the prosecution case, the offences have been committed in two phases, first „kidnapping‟ and secondly, „murder‟. So far as „kidnapping‟ is concerned, as per prosecution allegation, the deceased was kidnapped at gun point and he was forced to sit on a Scooter to flee away. This part of the story as narrated in the F.I.R. (Ext.1) is found uncorroborated in the evidence of witnesses. As per evidence of P.W.4 (the Informant), the deceased was kidnapped by pointing a revolver and was indicated to proceed towards Nuasahi Gali Lane to a bushy area. Apart from this, no gun/pistol was recovered in course of investigation nor any reason has been explained by the prosecution to satisfy non-recovery of the same. This nullifies the case of the prosecution to establish the case under Section 27 of the Indian Arms G.A.No.7 of 2002 Page 4 of 8 Act and, as such, no charge can be said to have established under Section 27 of the Indian Arms Act against any of the accused persons. 12. So far as offences relating to kidnapping and murder are concerned, it is seen that P.W.2 being the key eyewitness has stated in his evidence that he followed the kidnappers after the deceased was taken by them and witnessing the assault, he then proceeded to Kaliabooda Math and slept there. He did not report the matter either to any other person or to the nearby Police Outpost which is situating very close to the place of occurrence. It is also found strange on his part that instead of going to his house for sleeping, he had been to the Math without any explanation. It is important to note here that this witness (P.W.2) has criminal antecedents and he was involved in several offences prior to this occurrence. It is true that having of criminal antecedents on the part of a witness does not take away his credibility, had the same been found trustworthy and up-to standard. What needs to be seen is the conduct of the witness and impact of the same on his worthiness of statement. A person who claims to be the eyewitness of kidnapping as well as the murder remains silent for the entire night and even did not spoke to anyone about the same till the Police examined him on the second occasion. Before meeting the police he though met the Informant (P.W.4) and the Scribe (P.W.1), but he did not choose to say a single word about G.A.No.7 of 2002 Page 5 of 8 the occurrence to them. It is not that this witness was under threat or afraid of the accused persons. The most important factor is, this witness who claimed to be the key witness, was not examined immediately after the occurrence but only on 15.03.1996, where the date of occurrence is on 08.03.1996. 13. In Kanthia Singh and another Vrs. State of Orissa, 1986 (I) OLR 8, it is observed that belated examination of a witness by the Investigating Officer without any valid explanation coupled with the fact that he has not disclosed about the occurrence to anyone else before being stated to Police would seriously affect the credibility of his testimony. 14. In the instant case, with given facts, the conduct of this witness (P.W.2) is found doubtful before relying upon his testimony to proceed for establishing the charge. While agreeing with the discussions and reasons stated by learned Trial Jude, without reiterating the same here, we do agree with his finding that this witness (P.W.2) is not above the cloud of suspicion and he might have been planted subsequently to develop prosecution case. So far as rest of witnesses Viz. P.Ws.1, 4 and 7 are concerned, we do agree with the finding of the leaned trial Judge that when P.W.4 and P.W.1 are the Informant and Scribe respectively and G.A.No.7 of 2002 Page 6 of 8 had stated in the F.I.R. that the deceased was kidnapped in a Scooter, but the same is found missing in their statements before the Court. P.W.4 has said, instead, that the deceased was taken in a specific direction towards a busy area contrary to his own statement made in the F.I.R. According to the spot map, the place of occurrence is surrounded by dwelling houses and if the entire circumstances, as narrated by different witnesses, is co-related with each other, the version of these witnesses are not found reliable to substantiate the charge against accused persons, particularly Respondent No.3. The fact narrated in the F.I.R. being found conflicting to the evidence of P.W.1 and 4, the testimony of these witnesses are not found safe to be relied on to establish prosecution case. 15. With regard to P.W.7, the circumstances narrated by him in his cross-examination, while answering the questions of defence, do not whisper any reliability about his presence at the spot and therefore, we do agree with the finding of the learned trial Judge to the effect that setting up of this witness by the prosecution cannot be ruled out. 16. Thus, the conclusions arrived by learned trial Judge, particularly at paragraph-15 of the impugned judgment that the prosecution has relied evidences of such witnesses without having sufficient credibility and without any reasonable explanation for delay in examining those G.A.No.7 of 2002 Page 7 of 8 witnesses, particularly P.W.2, and non-examination of some other probable witnesses nearby the spot would lead finger towards innocence of the Respondents is fully justified. As such, the Appeal is found without merit. 17.
Decision
In the result, the Appeal is dismissed. (B.P. Routray) Judge (M.S.Raman) Judge M.R.Samal., P.A. Signature Not Verified Digitally Signed Signed by: MANORANJAN SAMAL Designation: PERSONAL ASSISTANT Reason: Authentication Location: Orissa High Court, Cuttack Date: 30-Jan-2025 16:43:20 G.A.No.7 of 2002 Page 8 of 8