Criminal Appeal No. 18 of 2014 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.617 of 2015 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Achyutananda Naik & others ……. Petitioners -Versus- State of Odisha ……. Opp. Party For the Petitioners : Mr. Ashok Kumar Sarangi Advocate For the Opp. Party : Mr. J.P. Patra, Addl. Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 14.08.2024 : Date of Judgment: 29 .10.2024 S.S. Mishra, J. The present Criminal Revision, filed under Section 401 read with Section 397 of Cr.P.C., is directed against the judgment and order dated 12.08.2015 passed by the learned Additional Sessions Judge, Athagarh in Criminal Appeal No.18 of 2014 and Criminal Appeal No.28 of 2014, whereby the judgment of conviction and order of sentence dated 04.03.2014 passed by the learned Assistant Sessions Judge, Athagarh in
Legal Reasoning
S.T. Case No.420 of 2007/S.T. Case No.2 of 2008 has been confirmed. 2. The prosecution case, in brief, is that, on 21.12.2003, the informant, Jharia Naik, of Badabareni, P.S. Narsinghpur, District- Cuttack, was sleeping in his house along with his family members. In the midnight, he found hot smoke inside his house. He went out of the house to find that the back side of the thatch of the house had been set ablazed and that the accused persons were standing under a mango tree inside the bari. Seeing the same, the accused persons threatened the informant to throw him in the fire. Out of fear, the informant raised hulla, hearing the same, one Sanatan Naik and one Bamadeba Naik came running and the accused persons fled away from the spot. The household articles and the paddy of the informant were destroyed in the fire. Based on this incident, the informant lodged an F.I.R. at the Police Station and the case was registered vide Narasinghpur P.S. Case No.137 of 2003 and upon completion of the investigation, the charge sheet was submitted against the accused persons for the offences punishable under Sections 436/506/34 of the I.P.C. Page 2 of 12 3. The prosecution, in order to prove its case, examined as many as 10 witnesses and exhibited 2 documents, whereas, the defence presented a plea of complete denial and examined 1 witness in support of its defence. P.W.6 is the informant, P.W.7 is his son. P.Ws.1 and 3 to 5 are the witnesses to the occurrence. P.W.2 and 8 are the seizure witnesses. P.Ws. 9 and 10 were the I.Os. in the present case. 4. The learned trial Court carefully analyzed the evidence on record and found all the accused persons guilty of the offences punishable under Sections 436/506(ii)/34 of the I.P.C. and recorded its finding under relevant paragraphs 18,19 & 20 of the judgment, which read as under: “18. From the evidence, it is clear that all the accused persons in furtherance of their common intention had set fire on the house of the informant with an intention that wrongful loss would be caused to the informant who was residing in that house along with his family of more than five members. Moreover, nothing has been elicited from the mouth of the IO that the informant had no house at the spot and that he was not residing there with his family. Since the evidence at hand clearly reveals that the accused persons in furtherance of their common intention had committed mischief by setting fire. On the house of the informant, which is used as a dwelling house, I am to hold that the accused persons are liable to be punished for the offence u/s 436/34 IPC. 19. The next allegation of the prosecution that is taken up for discussion is the allegation u/s 506/34 IPC. As far as the question of criminal intimidation is concerned the accused persons by their conduct of setting fire to the house of the informant had indeed Page 3 of 12 created panic or alarm in the mind of the informant and his family members with an intent to cause destruction to the property of the informant. As such in view of the evidence and the discussion in the preceding paragraphs, I am to hold that the accused persons are liable to be convicted for the offence u/s 506(ii)/34 IPC. 20. Hence, in view of my above finding, I am to hold that the accused persons are found guilty for the offences u/s 436/506(ii)/34 IPC and they are convicted in terms of Sec. 235(2) Cr.P.C.” In view of the conviction, the learned trial Court accordingly sentenced the accused persons to undergo R.I. for a period of two years each for the offence under Section 436/34 of the I.P.C. and to pay a fine of Rs.500/- each, and in default, to undergo R.I. for a period of one month more and further sentenced the accused persons to simultaneously undergo R.I. for a period of one year for the offence under Section 506/34 of the I.P.C. 5. Being aggrieved by the judgment of conviction and order of sentence, the accused persons filed an appeal before the learned Additional Sessions Judge, Athagarh being Criminal Appeal Nos.18 of 2014 and 28 of 2014. The learned Appellate Court appreciated the entire evidence on record and confirmed the judgment of conviction and order Page 4 of 12 of sentence and recorded its finding under Paragraph 15 of its judgment which is quoted hereunder: “15. D.W.1 has stated that on 22.12.03 in the mid-night the house of the informant was not burnt. His evidence is not believable inasmuch as P.w.10 has stated that he seized burnt ash from the spot vide seizure list Ext.1/2. So, the house of the informant was burnt is well proved from the evidence of I.O. and from the seizure list vide Ext.1/2. Ext.1/2 also revealed that some burnt ash along with half burnt rafter and one half burnt aluminum spot was seized from the spot. Thus, from the aforesaid evidence of all the P.Ws coupled with seizure list Ext-1/2 it is amply proved that the accused persons burnt the house of the informant and also threatened him put to in the fire. The cause of the commission of the alleged crime is also well proved by the prosecution that the accused persons set fire in the house of the informant when the informant deposed against them in a murder case. Thus, I found no interference in the finding of the learned lower court holding the accused persons guilty of the offence under Sections 436/506/34 IPC. Accordingly, the conviction and sentence thereunder is confirmed.” 6. Having failed in their appeal before the learned appellate Court, the petitioners have filed the present Revision Petition assailing the judgment of conviction and order of sentence. 7.
Legal Reasoning
Heard Mr. Ashok Kumar Sarangi, learned counsel appearing for the petitioners, and Mr. J.P. Patra, learned counsel appearing for the opposite party-State. 8. The learned counsel for the petitioners submitted that the version of the informant (P.W.6) in the FIR contradicts his statement during his Page 5 of 12 deposition. The learned counsel for the petitioners further submitted that after securing the judgment of conviction from both the Courts below, the petitioners have settled the dispute amicably with the informant in the presence of the local gentries to the effect that the informant now has no objection if the petitioners are acquitted. 9. I have perused the evidence on record in the present case and have found that the informant (P.W.6), in the FIR, has, inter alia, stated that he found hot smoke invading his house at around midnight and he woke up to find the source of the smoke then he found that the accused persons had set up his house on fire. He further stated in the FIR that the accused persons were standing under a mango tree inside his bari. However, this is inconsistent with the statement of the informant in his deposition where he has stated that his daughter, Tofani, who has been examined as P.W.7, and his mother, whom the prosecution has failed to cite as a witness, first woke up due to the smoke from the fire and raised hulla which woke the informant up. In the light of this inconsistency in the statement of the informant, who is a vital witness in the present case, the trustworthiness of P.W.6 lacks confidence. Page 6 of 12 10. Furthermore, P.W.6 alleged in the FIR that when he discovered that his house had been set on fire by the accused persons, the said accused persons were standing under the mango tree inside his bari. P.Ws.3 and 5, Sanatan Naik and Rashmita Naik, who were the witnesses to the occurrence, came to the spot at the same time. P.W.3, Sanatan Naik, deposed in his evidence that the accused persons were standing under a mango tree inside the bari of the informant which was at a distance of around 40 feet. However, P.W.5, Rashmita Naik, the wife of P.W.3, stated in her deposition that the accused persons were holding burning straw with which they were setting fire to the house of the informant. Thus, the deposition of these eye witnesses to the occurrence are varying with respect to the most important aspect at the time of the occurrence and this lays heavy doubt on the guilt of the accused persons. 11. Moreover, the learned counsel for the petitioners submitted that the accused-petitioners in the present case have reached a willfully consented compromise with the informant which has been effected by the informant vide an Affidavit dated 11.01.2024 signed at Cuttack. The learned counsel for the petitioners relied on the judgment of the Hon’ble Page 7 of 12 High Court of Himachal Pradesh at Shimla in the case of Tara Chand & Ors. v. State of Himachal Pradesh & Ors., reported in 2017 SCC Online HP 947, whereby, in a similar case, the judgment of conviction and order of sentence awarded to the accused-petitioners under Sections 436/34 of the IPC was quashed and set aside by the Hon’ble High Court under Section 482 of the Cr.P.C. Relevant paragraph 12 of the said judgment is quoted hereunder: “12. Consequently, in view of the peculiar facts and circumstances of the case, wherein parties have compromised the matter at hand, this Court while exercising power vested in under Section 482 Cr.P.C. deems it fit to accept the prayer having been made by the learned counsel representing the petitioner. Accordingly, in view of the decision made hereinabove, the FIR No. 44/01, dated 26.02.2006, registered at Police Station Manali, District Kullu, H.P., under Section 436 and 34 of the IPC against the petitioners as well as the conviction and sentence recorded by the learned Sessions Judge, Kullu in Sessions Trial No. 54 of 2006 are ordered to be quashed and set aside.” 12. In the present case, since the informant is no longer willing to support the prosecution case, it would not be in the interest of justice to proceed with the case and having so in mind, I am of the considered view that the criminal proceeding against the petitioners must fail and lead to their acquittal. It would be apposite to rely on the observation of the Hon’ble Bombay High Court in the case of Kiran Tulshiram Ingale Page 8 of 12 v. Anupama P. Gaikwad, reported in 2006 SCC OnLine Bom 1391, the relevant paragraphs 16 and 17 of which read as under: “16. Therefore, it is clear that firstly in this case the parties have compromised even after conviction and, the object of compromise to live happily, peacefully though separately after divorce. The Sessions Court has taken cognizance of this compromise and has reduced the conviction and altered it to a bond under the Probation of Offenders Act. Secondly, conviction by the first Court is not end of the matter and appeal therefrom is continuation of proceeding and if a revision is filed, in case conviction is maintained, altered, reduced, then the High Court in revision does get power to pass effective orders in consonance with the judgment of the Supreme Court. Conviction does not attain finality if the appeal is filed and, if the revision is filed against conviction by appellate Court, there also all issues become opened before the High Court. 17. Since the Supreme Court had approached this issue with a broader perspective and the Issue was whether it is permissible to quash criminal proceedings (Stress Added) or complaint or FIR and in our opinion, even the criminal proceedings can be quashed irrespective of whether there is conviction or otherwise. We, therefore, answer both the Issues as under:— “Ans. to Issue No. 1:— The decision of the Supreme Court gives powers to the High Court to permit compounding of matrimonial offences and the High Court has powers to quash the criminal proceedings or FIR or complaint.” “Ans. to Issue No. 2:— Even in case of conviction, inherent powers can be exercised and criminal proceedings can be quashed.” Similarly, in a reference case arising out of conviction under Section 436 of the IPC before this Hon’ble Court in the case of Basanta Kumar Baral v. State of Orissa, reported in 1998 SCC OnLine Ori 266, the Bench quashed the conviction of the accused on the ground of Page 9 of 12 the settlement of the matter by way of a compromise. The relevant paragraph 16 of the said judgment is hereby reproduced for reference: is in by the trial satisfied to meet to prevent ends of justice or exercise of it delay that unnecessary “16. In the background of what has been stated above, it is clear that section 482 of the Code can be utilised to secure the ends of justice in cases where compounding is not permissible under section 320 of the Code, But it is not to be exercised in a routine manner. As was observed by the Apex Court in Krishnan's case (supra), it can be utilised the abuse of process of law. It has to be sparingly used and only when the needless Court multiplicity of proceedings, and protraction of proceedings can be avoided, it can be done. Merely because an affidavit or petition has been filed by the parties that they have sorted out their differences,that would not suffice. In every case, the Court has to be satisfied that the compromise was voluntary and was not the result of any intimidation, threat, coercion or undue influence. In large number of cases it is noticed that compromises are obtained by intimidation, show of muscle and money power. In cases where there is scope for a suspicion that apparent is not the real, Court should not exercise power under section 482. That would not be a step for securing ends of justice, but on the other hand it would amount to destruction of credibility of the institution, and its ultimate the result would be compromise, the Court should ask the parties to appear before the lower court for verification of the statements regarding compromise and the investigating agency should be directed to submit a report expeditiously, in order to avoid unnecessary delay in the trial and protraction of proceedings. Court has to lift the veil of so-called restoration of follow- feeling, desire to wipe out differences and clearance of mis-understanding. The truth has to be unravelled. Only when the Court is satisfied about the bona fides, then it can entertain the prayer to exercise inherent power. Normally relevant materials are to be scanned through which would not be an easy job. Therefore, the correctness of the statements regarding compromise can be more effectively examined by the trial court and if necessary trial can be taken up immediately to put an end to the litigation. Only when the High Court is satisfied about the genuineness of the compromise immoral. Notwith-standing ignoble and Page 10 of 12 beyond shadow of doubt, it can exercise inherent power. The Court in such matters has to adopt strong attitude and no liberal attitude is to be shown, as there is every possibility of the victim being made to suffer further on account of machinations by the offender. Our answer, therefore, is that there is no bar for exercise of power under section 482 in respect of a case which involves non-compoundable offence in terms of section 320 of the Code. But the power has to be most sparingly used in appropriate cases. It has to be the exception and not the rule.” 13. Regard being had to the aforementioned discussion and the evidence adduced by the prosecution, this Court is of the considered view that the testimony of P.W.6 lacks corroboration with the testimony of P.Ws.3 & 5 those who are the witnesses to the occurrence. The prosecution evidence in this case does not inspire confidence to sustain conviction recorded against the petitioners. Moreover, in the changing circumstances, when the petitioners have settled their dispute, they deserve to be acquitted from all the charges. 14. After meticulous evaluation of the circumstances of the present case and the compromise arrived at by the parties, I am of the view that this revision petition deserves to be allowed. Hence, the order of conviction dated 04.03.2014 passed by the learned Assistant Sessions Judge, Athagarh in S.T. Case No.420 of 2007/S.T. Case No.2 of 2008 Page 11 of 12 which was confirmed by the learned Additional Sessions Judge, Athagarh in Criminal Appeal No.18 of 2014 and Criminal Appeal No.28 of 2014 vide judgment dated 12.08.2015 is set aside.
Decision
15. The CRLREV is accordingly disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 29th October, 2024/Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Designation: Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Nov-2024 10:01:49 Page 12 of 12