The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.3494 OF 2023 Mandakini Sahoo …. Petitioner(s) State of Odisha & Others Mr. Biswaranjan Dalai, Advocate -versus- …. Opposite Party(s) Mr. B. K. Ragada, AGA CORAM: JUSTICE SIBO SANKAR MISHRA
Decision
ORDER 02.02.2024 Order No. 01. 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner is the informant and claiming to be the brother of the alleged victim. On 25.09.2011 an F.I.R. was registered by the petitioner against the accused persons, namely, the Opposite Party Nos.2 to 4. It is alleged that on 24.09.2011 at about 12.00 P.M. all the accused persons came near the house of the complainant/petitioner and abused his brother Bibekananda Sahoo in filthy language. Accused No.2 dragged Bibekananda Sahoo by holding his neck and forced him to go to Tahasil office. Accused No.3 caught hold of his hand and pulled him outside, whereas accused No.1 pushed his neck from the back side and all of them started abusing the victim. Though the victim expressed his Page 1 of 6 uneasiness and requested them to allow him to free, yet the accused persons took him to Tahasil office and left the victim there and fled away. With the help of the witnesses, the complainant shifted the victim to C.H.C. hospital. It is alleged, on the way he died. It is contended by the petitioner that the accused persons were responsible in killing the victim namely his brother Bibekananda Sahoo. Accordingly, in the F.I.R. offences under Sections 341/294/506/302/34 IPC were alleged. After the investigation, the police submitted a charge-sheet under Sections 341/294/304-A/34 I.P.C. Learned court below accordingly took cognizance of the said offences against the accused persons. 3. The petitioner being the informant and the brother of the alleged victim, filed a protest petition being 1.C.C. Case No.179 of 2014. Under Section 202 Cr.P.C. statement of witnesses were recorded. Relevant would be to reproduce important part of the statement of the complainant and one of independent witnesses which reads as under: “On the day of occurrence during the time of flood, Batakrushna, Nandakishore and Siba Prasad came to my house and abused by brother in obscene words saying “sala Sarapanch ghare basichhu, paala dei parunu” etc. They forcible took away my brother Vivekananda by pulling him. He felt pain in his body. The accused persons took my brother up to Bari Tahasil.” Page 2 of 6 “Bibekananda was the then Sarapanch of his G.P. The accused persons pulled Bibekananda upto the Tahasil Office, Bari. He requested the accused persons in order to left him due to pain in his chest.” 4. It is relevant to mention here that two other witnesses examined under Section 202 Cr.P.C. have merely reiterated the version of the complainant as mentioned above. The learned S.D.J.M., Jajpur vide his order dated 15.02.2016 rejected the protest petition filed by the petitioner-complainant inter alia stated as under: “The case record is put up today for order on the point of cognizance. Perused the complaint petition, initial statement of the complainant, statement of 13 witnesses examined U/s. 202 Cr.P.C. and other connected materials available with the case record. On perusal of the case record and its connected papers, I found existence of prima facie case against the accused persons namely Ramakanta Mallik, Bata @ Nandakishore Barik and Sibaprasad Nayak U/s.341/294/34 IPC. It reveals from the case record that there is no prima facie case against the accused persons U/s.506/302 IPC. The statement of all the witnesses examined U/s.202 Cr.P.C. and initial statement of the complainant reveals that the brother of the complainant was suffering from heart diseases prior to this occurrence. The statement of some of the deceased the witnesses also reveals Bibekananda Sahoo died due to heart problem, for which he felt pain on the day of occurrence. The case record further reveals that this is a protest case of G.R. Case No.595/2011, where basing on self same occurrence the informant lodged a written report before the OIC Bari Ramchandrapur P.S. which was registered as Bari Ramchandrapur P.S. Case No.64 dtd.25.09.2011 and SI of Police Bansidhar Baral was entrusted with the investigation that Page 3 of 6 in the aforesaid IPC and of that case. He has submitted charge sheet against the accused persons namely Ramakanta Mallik, Bata @ Nandakishore Barik and Sibaprasad Nayak U/s.341/294/304(A)/34 that case cognizance has already been taken by this Court order against dtd.17.08.2012. So for the instant case and for the self same occurrence, no further cognizance will be taken U/s.341/294 IPC. Thus analyzing the above facts and circumstances of this case and taking into account, the statements and materials collected in this case, I hold that there is no prima facie case against the accused persons U/s. 506/302/34 IPC. Hence the case is closed.” offence vide 5. The petitioner took the matter to the Revisional Court. The learned District and Sessions Judge, Jajpur vide its order dated 03.05.2023 dismissed the revision petition being Criminal Revision No.11 of 2016 and upheld the order of the trial court taking cognizance for the offences under Sections 341/294/304-A/34 I.P.C. The relevant would be to reproduce para-5 of the Revisional Court order: “5. It is an admitted fact that relating to this occurrence, the complainant had lodged FIR on 24.09.2011 before IIC, Bari-Ramachandrapur P.S. basing on which PS case No.64/2011 U/s.341/294/ 506/302/34 IPC was registered and investigation was taken up. After completion of investigation, the IO submitted charge-sheet U/s.341/294/304(A)/34 of IPC and accordingly cognizance of the offence there under was taken by the learned SDJM, Jajpur vide order dated 17.08.2012. Examined the statement of the complainant recorded U/s.200 Cr.P.C. and the statement of witnesses recorded U/s. 202 Cr.P.C. None of the witness has stated that the accused the deceased persons had knowledge that Page 4 of 6 Bibekananda Sahoo was a heart patient and if he will be assaulted, abused or humiliated, he will suffer instant heart attack and die. There is no material on record to suggest that the push and pull given to Bibekananda Sahoo are correlated to his heart attack particularly when the copy of FIR filed by the complainant does not disclose that she was informed by deceased Bibekananda that when the accused persons gave him push and pull or assaulted him, he sustained chest pain. Rather, the FIR reveals that after returning to his house, the deceased narrated the incident to complainant and at that time he expressed his chest pain. Moreover, the FIR does not disclose that the accused persons had knowledge that the deceased was suffering from heart problem and with an intension of causing death, they did such acts. The post-mortem examination report reveals that the external injury on the person of the deceased are not fatal in ordinary course of nature. When the witnesses including the complainant do not state that the the accused persons had knowledge deceased was a heart patient and with an intention to kill him, they gave push and pull and assaulted him, as a result of which he died and when the external injury on the person of the deceased was not fatal in ordinary course of nature, this Court is of the view that a prima facie case U/s. 302 of the IPC is not made out. Neither the complainant nor the witnesses have stated that the threatening given by the accused persons to Bibekananda caused alarm in his mind. In that view of the matter also a case U/s.506 of the IPC is not made out.” that 6. The petitioner is aggrieved by the aforementioned order and assails the same. 7. Learned counsel for the petitioner contended that knowing fully well that the victim is a heart patient, the accused persons have forcibly taken him to the Tahasil office and left him there when the Page 5 of 6 entire village was flooded. The victim suffered a heart attack leading to his death. Therefore, intentionally the accused persons have pulled the victim from his house and left him helpless in the flooded water. Accordingly, the ingredient of Section 302 IPC is clearly attracted and accordingly the trial court should have taken cognizance of the said offence. 8. I have carefully considered the documents placed before me. Perused the evidence recorded by the complainant in the protest petition. I am of the considered view that no material come on record to establish a prima facie case under Section 302 IPC. Therefore, the trial court has rightly taken cognizance for the offence under Section 304-A IPC and other offence barring offence under Section 302 IPC. The Revisional Court has upheld the order of cognizance. No infirmity could be found from the impugned orders. 9. In that view of the matter, no interference is called for. The CRLMC is accordingly dismissed. (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: ASISH KUMAR KAR Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Feb-2024 13:33:34 Page 6 of 6