The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 128 of 1996 (In the matter of an application under Section 374 of Criminal Procedure Code) Chhota @ Gouranga Behera ……. and another Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Ms. Sartika Das, Advocate For the Respondent : Ms. Shiva Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 09.09.2025 : Date of Judgment: 25.09.2025 S.S. Mishra, J. The present Criminal Appeal is preferred by the convict Chhota @ Gouranga Behera and Madan Behera jointly questioning the judgment and order dated 18.04.1996 passed by the learned Additional Sessions Judge, Jajpur in Sessions Trial No. 59/4 of 1995, whereby the appellants are convicted for offence punishable under Section 436 of IPC and on that count each of them were sentenced to undergo R.I. for two years. During pendency of the present appeal, the appellant no.1-Chhota @ Gouranga Behera expired. Therefore, vide order dated 31.07.2025, the appeal qua appellant no.1 stood abated, in absence of any application under Section 394 Cr.P.C. moved by his legal heirs or next friend. Hence, the present appeal is confined to the appellant no.2. 2.
Legal Reasoning
Heard Ms. Sartika Das, learned counsel for the appellant and Ms. Shiva Mohanty, learned Additional Standing Counsel for the State. 3. The prosecution case, in brief, is that the accused persons have got previous enmity with the family of the informant (P.W.1) and P.W.5 (Khageswar Behera). On 14.12.1992 noon, the accused Subodh and Madan made some filthy comments to the wife of the nephew of the informant. The informant made objection to such misbehaviours. Thereafter, the accused persons had given threats for setting their house Page 2 of 12 on fire. At 2.00 P.M. on that day, the accused persons set fire to their house and subsequently they pelted stones at them. 4. On the basis of the aforesaid allegations, police registered the case for the offence punishable under Sections 436/336/34 of IPC. After investigation, charge sheet was filed and charges were framed. On the stance of denial and claim of trial, the appellants were put to trial. 5. The prosecution in order to bring home the charges, examined as many as eight witnesses. 6. In the present case, initially nine accused persons were put to trial after framing of charges against them for the offences under Sections 436/336/34 of IPC. On trial, all the accused persons have been acquitted of the charges, except the present appellant and the deceased appellant. Accordingly, they were also sentenced. The learned trial court after analyzing the evidence on record, returned the following findings:- “7. It is evident from the statements of the witnesses that the roof of the dwelling house and cow-shed of P.Ws.1 and 5 (P.W.1 is the wife of P.W.5) had been burnt. P.Ws.1 and 2 make statement that accused Madan and Gourang set fire the house. P.W.2 entangles accused Subodh besides the Page 3 of 12 above two accused persons in setting the house on fire. But both the witnesses have entangled and made positive statements against accused Madan and Gourang about setting of fire. As P.W.1 does not make statement against accused Subodha, his (accused Subodh) involvement in setting fire of the house, is said to have not been proved beyond doubt. xxx xxx xxx xxx 10. As regard delay, it needs mention that P.W.1 in her statement at paragraph-6 states that in the very night of occurrence police came and she was examined and the F.I.R. was scribed in the very night. Of course in the said paragraph she made a statement that in the next morning she lodged the F.I.R. in the police station. When that paragraph as a whole is read that in the night of occurrence police case, the F.I.R. was scribed and she was examined, obviously her statement that in the next morning she lodged F.I.R. is outcome of a confusion. The F.I.R. (Ext.1) reveals that in the very night around 7.30 P.M. it was lodged and such is also the statement of the I.0. The defence takes into evidence an endorsement of the I.0. (P.W.8) is a report vide Ext.A. revealing that a case of arson was made out in the said F.I.R. But the contents of the said report containing the endorsement Ext.A, has not been taken into evidence. Be that as it may Ext.A containing the endorsement was lodged at 9.30 P.M. So Ext. A cannot be considered as F.I.R. that was lodged prior to lodging of the F.I.R. Further F.I.R. is not a substantive evidence. It is to show that implication of the accused was not an afterthought. Thus few hours of delay in lodging the F.I.R. is not fatal to the prosecution case for the reasons that P.W.1 states that as there was no male member she could not lodge the report immediately. Further when there are witnesses to the occurrence, delay in lodging the F.I.R. is immaterial. The I.O. (P.W.8) has been confronted about some interpolation in the F.I.R. But the author of the F.I.R. (P.W.1) has not been confronted with any such Page 4 of 12 it does not change interpolation. Thus the interpolation of some words in the F.I.R. does not have any impact on the prosecution case. Further the prosecution case. Thus accused Madan and Gourang set fire to the thatched roof of the dwelling house and cow- shed of P.W.1, undoubtedly with an intention to cause destruction of the said house and/or roof.” the substratum of 7. Aggrieved by the aforementioned findings leading to the conviction of the appellants and sentence, they have challenged the said order by the appeal. 8. Ms. Sartika Das, learned counsel for the appellant submitted that in the present appeal the learned trial court has disbelieved the testimony of P.Ws.3 and 5 in paragraph-6 of the impugned judgment and she has read out the said paragraph, which reads as under:- “Learned Counsel for the accused persons has given suggestion to these witnesses that they have not made such statement before the 1.0. but it is evident from the statement of the I.0. (P.W.8) at paragraphs 3 and 4 that in fact they have made such statement before him. The other witnesses (P. Ws. 3 and 5 ) state that in their presence the house was set fire by accused Subodh being asked by accused Madan and Gouranga, but in fact it is evident from the statement of the I.0. (P.W.8) that this material statement has not been made before the 1.0. in their previous statements u/s. 161 Cr.P.C. This being the substratum of the prosecution case, to prove a case of arson, the omission to make such Page 5 of 12 statement amounts to vital contradiction striking at the root of the prosecution case. Thus the statement of P.Ws.3 and 5 that they are witnesses to the occurrence is not credible, but it is evident from their evidence that they are post occurrence witnesses and found the house was burnt. So also is the statement of P.Ws.4 and 6 that they found the roof of the house was partly burnt.” Ms. Das, also submitted that the learned trial court has partially disbelieved the testimony of P.W.1 and while disbelieving P.W.1, the learned trial court has acquitted Subodh Behera of the charges, although P.Ws.2, 3, 4 and 5 have categorically attributed the role to Subodh. The conjoint reading of the evidence of those witnesses reveals that it is Subodh, who had set the house on fire. She has also pointed out that the evidence of the prosecution reveals that the husband of P.W.1 had filed a civil suit against one Hrusi and others and the court found such circumstances adversely to the defence, as it may be a reason due to such enmity the accused persons might have committed the offence. At the same time, the court also observed that there was no positive evidence that the accused persons showed indecent behavior to the daughter-in- law of the family just before setting fire to the roof of the house. Ms. Das also pointed out various discrepancies in the evidence of the witnesses. Page 6 of 12 9. I have carefully gone through the evidence of the prosecution witnesses. P.W.1 in her statement has stated as under:- “My putura was newly married. At that time Subodh and Madan made obscene gesture to my Putura Bohu. Then my Putura Bohu complained before me regarding that. So those two accused persons abused her in obscene words. At that time myself and my Putura Bohu were present in the house. No male member was present in the house. The accused persons threatened in previous occasion to set our house on fire but they had not done so earlier on this occasion accused Gourang asked the other persons to set our house on fire.” She sustained extensive cross-examination. In the cross-examination, she has also stated as under:- “9. Accused Gouranga, Chunchi, Trilochan, Hrusi and Madan belong to one family. My husband had filed a title suit against Hrusi and others. I do not know the result of it. It is not a fact that the accused persons are innocent and they have been falsely implicated in this case. The F.I.R. is written by one person only. It is not a fact that And Suryamani Behera and another place at the instigation of others are subsequently written in different ink.” 10. P.W.2 in his testimony stated as under:- “The occurrence took place about 2 ½ years back at about 3 P.M. I was studying in my house. Hearing hulla I came to the house of my elder father Khageswar Behera. Then Madan and Gourang told to Subodh to set the house of Khageswar Behera on fire. Then Page 7 of 12 Subodh set the house situated on the south-west i.e. thatched house on fire by striking a match stick. So the house went on burning.” He has also stated in his cross examination that their family was not pulling on well with Subodh for the last 5 to 6 years so also with the accused Gouranga Behera, as there was civil litigation pending between the family. 11. Reading of the evidence of P.Ws.1 and 2 indicates that P.W.1 has stated that the kitchen of their house burnt in the incident, whereas P.W.2 stated that the room of about 10/12 feet length was burnt. He has also stated that besides the cowshed, the kitchen was also burnt. P.W.3 in his examination in chief has stated that:- “At that time I found all the accused present there armed with Thenga etc. At that time accused Gourang and Madan told to accused Subodh to set fire to the house and gave match box to him. Then Subodh set the fire on fire. Then we raised hulla villagers arrived. In that house, paddy, rice, cycle and untensils and earthen pots were kept.” He has also stated in his cross examination the fact that Madan and Gourang had asked Subodh to set the house on fire has not been stated by him to the I.O. P.W.4, who is an independent and post-occurrence Page 8 of 12 witness, has stated that he came to the spot and found that the cow-shed of Khageswar was burning and at that time there was hulla and people were extinguishing fire. He was cross-examined, but his testimony stood unshaken. P.W.5, Khageswar Behera, whose house was allegedly set on fire, has not seen the incident. As per his version, he learnt regarding the burning of the house from his wife and daughter-in-law. He has stated that his wife and daughter-in-law had informed him that Madan and Subodh entered into the house by the side of the wall and when they protested and shouted, the accused Subodh and Madan told to set the house on fire and then the accused Madan and Subodh set the house on fire to the kitchen consisting of two rooms. From his evidence, it is apparent that Subodh had set the fire on kitchen. 12. P.W.6 in his testimony has stated as under:- “I know all the accused persons standing in the dock who are of Vill. Alipur. My house is about 1 ½ miles away from the houses of the accused persons. The occurrence took place about 2 ½ years back. I had been for medicine to Alipur Hat. When I returned from the Hat, I heard hulla and stones were pelted by the accused persons to the house of Khageswar Behera. Madan Behera told to Subodh Behera to set the house on fire. Then Subodh Behera set the house of Khageswar Behera on fire. Then the house was Page 9 of 12 completely burnt. A burnt cycle was recovered from the said house. I was examined by the I.O.” 13. The trial court has convicted the appellants only on the strength of the evidence of P.W.1. However, partially not believing the said witness, acquitted the co-accused Subodh by recording as under:- “7. It is evident from the statements of the witnesses that the roof of the dwelling house and cow-shed of P.Ws.1 and 5 (P.W.1 is the wife of P.W.5) had been burnt. P.Ws.1 and 2 make statement that accused Madan and Gourang set fire the house. P.W.2 entangles accused Subodh besides the above two accused persons in setting the house on fire. But both the witnesses have entangled and made positive statements against accused Madan and Gourang about setting of fire. As P.W.1 does not make statement against accused Subodha, his (accused Subodh) involvement in setting fire of the house, is said to have not been proved beyond doubt.” In that light, if the evidence of P.W.8 is analyzed, it reveals that the said witness in his cross-examination has stated as under: “3. I examined P.W.1 on 14.12.92. It is a fact that P.W.1 has not stated before me that prior to the occurrence the accused persons had threatened to burn her house. It is a fact that P.W.1 has not stated before me that Gourang asked the other accused persons to set the house on fire, that the house which was burnt rice and other house-hold articles were stored there.” Page 10 of 12 14. Similarly, while the I.O. had examined P.W.3 under Section 161 Cr.P.C., he has also not stated what in fact he has deposed before the Court. P.W.8 in that regard has stated as under:- “5. I examined P.W.3 on15.12.92. It is a fact P.W.3 has not stated before me that hearing hulla he came to the spot and found the accused persons were armed with lathis. It is a fact that P.W.3 has not stated before me that accused Gourang and Madan asked Subodh to set the house on fire and they handed over a match box to him. It is a fact that P.W.3 has stated before me that he had been to Bari and when he came to the spot, at that time the occurrence was already over.” 15. Similar is the version of P.W.6. He also has not stated before the police, the facts what he has deposed before the court. In that regard paragraph-7, of the evidence of P.W.8 is relevant, which is as under:- “It is a fact that P.W.6 has not stated before me that the accused persons were pelting stones, Madan asked Subodh to set the house on fire that Subodh set the house on fire. I have not sent any C.D. or statements of the witnesses to the court, but I handed over the same to my successor on 7.2.93. It is not a fact I have not properly investigated the case. It is not a fact that at the instance of the informant I have foisted this case against the accused persons.” 16. The conjoint reading of all the evidence, as discussed above, would lead to the only conclusion that the version of P.Ws. 1, 2, 4, 5, and Page 11 of 12 6 are contradictory to each other and the trial court has disbelieved all the witnesses and recorded an acquittal not only in favour of the other accused persons but also the prime accused Subodh. Paragraph-7 of the impugned judgment already reproduced in the initial part of the judgment would reveal the same. 17. In that view of the matter, the present appellant is also entitled to the benefit of doubt. Accordingly, the impugned judgment and order dated 18.04.1996 passed by the learned Additional Sessions Judge, Jajpur in Sessions Trial No. 59/4 of 1995, is set aside and the appellant is acquitted of all the charges. The bail bond furnished stands discharged. 18. Accordingly, the Criminal Appeal is allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 25th September, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 26-Sep-2025 17:00:06 Page 12 of 12