The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.292 of 1995 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 26th September, 1995 passed by the learned Additional Sessions Judge, Parlakhemundi in Sessions Case No.12 of 1995 (Sessions Case No.252 of 1994-GDC). 1. Santi Naik ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr.Debasis Das, Advocate For Respondent - Mr.G.N. Rout, Additional Standing Counsel CORAM MR. JUSTICE D.DASH Date of Hearing : 03.07.2024 : Date of Judgment : 10.07.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 26th September, 1995 passed by the learned Additional Sessions Judge, Parlakhemundi in Sessions Case No.12 of 1995 (Sessions Case No.252 of 1994-GDC) arising out of G.R. Case No.26 of 1994 pending on the file of the learned Judicial Magistrate First Class, (J.M.F.C.), R. Udayagiri. CRA No.292 of 1995 Page 1 of 6 By the impugned judgment, the Appellant (accused) has been convicted for commission of the offence under section 436 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo rigorous imprisonment for three (3) years and pay fine of Rs.500/- (Rupees Five Hundred) in default to undergo rigorous imprisonment for one (1) month for commission of the said offence. 2. Prosecution Case:- Sometime past in the mid night of 16.03.1994, the accused set fire to the thatched of the house of one Sana Para Mallick by lighting a match stick. The matter, being orally reported by the Informant (P.W.1) at Mohana Police Station, the same was reduced into writing and being treated as FIR, criminal case was registered and investigation commenced. On completion of the investigation, the Final Form has been submitted placing this accused to face the trial for commission of the offence under section 436 of the IPC and section 3(2)(v) of the S.C. and S.T. (POA) Act. The Trial Court, on going through the evidence of the prosecution witnesses (P.Ws.1 to 8) and the documents admitted in evidence on their behalf (Exts.1 to 4), having held the prosecution case to have been established for commission of the CRA No.292 of 1995 Page 2 of 6 offence under section 436 of the IPC, has held this accused guilty for the said offence and sentenced him as afore-stated. 3. The defence plea is that of complete denial and false implication. The accused, however, has not tendered any evidence in support of such plea. 4. Mr.Debasis Das, learned counsel for the Appellant (accused) submitted that the prosecution case is based on the evidence of P.W.5, who has been projected as the sole eye witness to the incident. He submitted that the evidence of P.W.5, being critically examined, cannot be held to be reliable so as to base the conviction without any corroboration from any quarter. He further submitted that the Trial Court has failed to take note of the contradictions, which surface in the evidence of P.W.5, which is material that he in his earlier version before the I.O. (P.W.8) recorded during investigation under section 161 Cr.P.c. had not so stated implicating this particular accused to be the author of the crime. He also invited the attention of the Court as regards the factum of delay in lodging the FIR in stating that the explanation given by the Informant (P.W.1) on the score is wholly unacceptable, which again gives rise to grave doubt on the veracity of the prosecution case. He, therefore, urged that the CRA No.292 of 1995 Page 3 of 6 judgment of conviction and order of sentence cannot be sustained. 5. Mr.G.N. Rout, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against the accused, as has been returned by the Trial Court, submitted that the evidence of P.W.5 receives full corroboration from the evidence of P.W.1 and the I.O. (P.W.8) and thus the Trial Court did commit no mistake in holding the accused guilty for coming the offence under section 436 of the IPC. He further submitted that under the circumstances as have emerged in evidence, the delay in lodging the FIR and delayed examination of P.W.5 are of no significance and that on the face of the narration in the FIR (Ext.1), the contradiction in the evidence of P.W.5 as pointed out, loses of its impact. 6. Keeping in view the submissions made, I have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.Ws.1 to P.W.8) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.4. 7. The star witness for the prosecution here is P.W.5, who has been brought to the witness box as an eye witness. So, in order to address the rival submission, it will be apposite to straight way CRA No.292 of 1995 Page 4 of 6 proceed to analyze the evidence of P.W.5 so as to see how far the same is reliable in implicating this accused to have set fire to the thatched of the house of Sana Para (P.W.3). Some background facts, however, are required first for appreciation of evidence of P.W.5 and then P.W.1, the informant for proper appreciation of the evidence as to the criminal liability of this accused. The incident, having taken place on 16.03.1994 around 1.00 p.m, the FIR (Ext.3) has been lodged on 18.03.1994 at 7.00 p.m. It has been stated by P.W.1 that relation of the accused with other residents of that Sahi where P.W.3 resides was bitter as on prior occasion, the pigs kept by the residents of that Sahi had damaged the paddy crops. When it is stated that the delay was caused, the Information (P.W.1) says to have first of all reported to the local Sarpanch, but then no such material is placed in support of the same. P.W.1 has stated nothing in that regard during evidence. He simply states that having been asked the local Ward Member, had accompanied him to the police station. Thus, the explanation for such delay as provided is not forthcoming in the evidence and for such delay in lodging the FIR, we find the delay in recording of the statement of P.W.1 as well as P.W.5, which have also remained unexplained. Furthermore, the Ward Member CRA No.292 of 1995 Page 5 of 6 examined as P.W.2 is not stating anything in support of such explanation for the delay in lodging the FIR. When P.W.5 states to have seen the accused setting fire to the house of Sana Para, it is her version that hearing the hullah, P.W.1 came. But P.W.1 in her evidence does not state to have rushed to the spot. Hearing the hullah of P.W.5, she says that hearing from P.W.1, the villagers had gone to the spot and she told that the accused had set fire to the house. When this accused was arrested on 22.03.1994, it is not stated that despite search, the accused being not available in the village, was not arrested. None says about the absence of accused after the incident. All these, give rise to serious doubt in mind and stand as the impediments to accept the evidence on records as to the complicity of the accused beyond reasonable doubt. 8. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 26th September, 1995 passed by the learned Additional Sessions Judge, Parlakhemundi in Sessions Case No.12 of 1995 (Sessions Case No.252 of 1994- GDC), are hereby set aside. Signature Not Verified Digitally Signed Basu Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 12-Jul-2024 11:34:30 CRA No.292 of 1995 (D. Dash), Judge. Page 6 of 6