High Court of Orissa
Case Details
IN THE E HIGH COURT OF ORISSA AT CUTTACK CRLMC No.790 of 2024 Akbar Khan …. Petitioner Pe Mr. S.C. Mohapatra, Senior Ad Advocate -Versus- State of Odisha …. Opposi osite party Mr. N.K. Prahar haraj, AGA CORAM: MR. JUSTICE R.K. PATTANAIK M ORDER 18.09.2024 Order No. 08. 1. HeardM Mr. Mohapatra, learned Senior Advocate for the petitioner and Mr. Mr. Praharaj, learned AGA for the State. 2. Instant petition is filed under Section 482 Cr.P.C .P.C.at the behest of the pe petitioner seeking quashment of the procee ceeding in connection with S
Facts
h S.A. Case No.50/45 of 2015-17 arising out of t of Komna P.S. Case No.191 o 91 of 2015 pending in the Court of learned Ad Additional District & Sessions ions Judge-cum-Special Judge (POCSO), Nuap uapada on the grounds stated ted therein. 3.
Legal Reasoning
eld by the Co-ordinate Bench of this Court in t in Deepak Oram (supra) that that it would not be proper to assume innocen cence of an accused merely co considering the evidence of the victim received ived during trial of other accu accused but in the case at hand, the evidence ence of the victim is out rightl ghtly hostile and she does not support the pro prosecution case at all, rather her, destroyed it in the whole, while claiming ing that the FIR was lodged af after an altercation of her parents with the pe petitioner without confirmin ming to the allegations made therein. Had the there been some evidence w with regard to the alleged incident even r n remotely showing involvem vement of the petitioner, the conclusion of th f the Court would have been en otherwise but such is not the case. Page 3 of 4 Pa 7. In such v ch view of the matter, having considered the e e evidence of P.W.5, as she she has not supported the prosecution ca case and testimony of othe thers, this Court is of the conclusion that the he decision in Deepak Oram am (supra) is not applicable to the present c t case and rather, it is distin stinguishable on facts. Being alive to the settl ettled legal position on the po point and the decision of Akhilesh Singh (supr upra) relied upon though the the same relates to a case of conspiracy hatch tched with the discharge of o f one of the accused and the fact that the sam same is not directly applicable able, the Court is of the considered view t w that the prosecution vis-à- -vis the petitioner is unlikely to achieve any ny result in view of the test testimony of P.W.5 and evidence of the e material witnesses receive ived during trial vis-à-vis co-accused per persons in S.A.No.50/45 of 2 of 2015-17 and there is a remote chance of co conviction against him due t e to the fact that the very edifice of the pro prosecution case stands destro stroyed, hence, therefore, it is inclined to acc accept the contention of M Mr. Mohapatra, learned Senior Advocate t te that the jurisdiction under der Section 482 Cr.P.C. is required to be exer xercised in the interest of just justice. 8. 9. Hence, i it is ordered. In the re e result, the petition filed under Section 482 82 Cr.P.C. stands allowed. A . As a necessary corollary, the criminal proce oceeding in connection with ith S.A No.50/45 of 2015-17 pending aga against the petitioner in the the Court of learned Additional District & Sessions Judge-cum-Special cial Judge (POCSO), Nuapada is hereby quashe shed. Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Reason: Authentication Location: ORISSA HIGH COURT Date: 20-Sep-2024 10:58:23 Alok (R.K. Pattanaik) Judge Page 4 of 4 Pa
Arguments
Mr. Moh ohapatra, learned Senior Advocate appearing ring for the petitioner submits mits that two other accused persons stand a d acquitted vide judgment da dated 7th October, 2023 in S.A. Case No.5 50/45 of 2015-17 as at An Annexure-4, which is based on the evidence nce of the informant/victim im examined as P.W.5, who turned hostile and and did not support the prose osecution case and while claiming so, he refer efers to her evidence as at An Annexure-3 series. Referring to the decision sion of the Apex Court in Cen Central Bureau of Investigation Vrs. Akhilesh S sh SinghAIR 2005 Supreme Co Court 268, Mr. Mohapatra, learned Senior A r Advocate contends that any any such further proceeding against the petit etitioner is unlikely to yield ld any result in view of the hostile evidence nce of the victim and others hers and therefore, the same should be qua quashed in exercise of the Cou Court’s inherent jurisdiction under Section 482 82 Cr.P.C. 4. Mr. Prah raharaj, learned AGA for the State, on the oth other hand, referring to a mem memo of citation of this Court in Deepak Or Oram Vrs. State of Orissa de decided in CRLMC No.3482 of 2016 dispose osed of on 6th June, 2023 su submits that the proceeding against the pe petitioner cannot be quashe shed notwithstanding any such order of acquit quittal vide judgment in S.A. N A. No.50/45 of 2015-17 and contends that un unless and until the petitione oner is subjected to trial, there is no reason to to assume that the informa rmant/victim is not to incriminate him. Th Therefore, according to Mr. P r. Praharaj, learned AGA for the State, the pro proceeding with the trial pen pending before the learned trial Court as aga against the petitioner cannot ot be quashed in view of decision in Deepa epak Oram (supra). It is lastly stly submitted that though the informant was as noticed, it was served on h n her brother and he is yet to receive any respo sponse. 5. Perused ed the evidence of the victim/informant exam xamined as P.W.5 as at Annex nexure-3 series. In fact, the victim, though adm admitted to have lodged the F e FIR, did not support the prosecution case and and turned hostile and was, h s, hence, put leading questions under Section tion 154 of Indian Evidence A e Act. On reading of the evidence of P.W.5, .5, she has denied about the a he alleged occurrence claiming that the FIR wa was lodged after her parents h ts had an altercation with one of the accused, ed, namely, the petitioner. So to say, the evidence on record does not sup support the allegations made de in the FIR and rather, the very genesis esis of the prosecution story tory is dismantled in view of evidence ce of the informant/victim. . In fact, referring to such evidence of the in e informant and other witne itnesses, who also turned hostile, Mr. Mo Mohapatra, learned Senior Ad no fruitful Advocate for the petitioner submits that no Page 2 of 4 Pa purpose would be be served, if the prosecution is allowed to c o continue, hence, therefore in re in the interest of justice and in exercise of jur jurisdiction under Section 48 482 Cr.P.C., the proceeding against the pe petitioner should be quashed hed. 6. Admitted ittedly, two other accused persons faced trial an l and it has resulted in an ord order of acquittal vide judgment at Annexure ure-4. Such acquittal is based ased on the hostile evidence of P.W.5 an and other witnesses. In the a he above backdrop, this Court is to consider er whether the further procee ceeding against the petitioner should continue nue or not. In the case of A Akhilesh Singh (supra), the Apex Court h held and observed that w when the main accused alleged to have ve hatched conspiracy and w who had motive to kill the deceased was as already discharged and t d the same has attained finality, the co-ac accused is entitled to be disc discharged as no real purpose would be serve rved, if the proceeding agains inst him is allowed to continue. Though Mr. P r. Praharaj, learned AGA relie relies on a decision in Deepak Oram (supra) ra), in the considered opinio inion of the Court, the further proceeding, if if directed to continue agains ainst the petitioner, no real purpose would be a be achieved although assumpti ption as to his innocence is not to be readily i ily inferred. It was rightly held