State of Orissa Vs.
Sikhar Jena & Ors. [2008] INSC 2053 (1 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 564 OF 2002 State
of Orissa ...Appellant Versus Sikhar Jena and Ors. ...Respondents
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in this appeal is to the judgment of a Division Bench of the Orissa High Court
directing acquittal of the respondents.
2.
Background
facts, as projected by prosecution, in a nutshell, are as follows:
The occurrence took
place on 19.3.1984 between 9.30 A.M and 10.00 A.M. The FIR was drawn up by the
Circle Inspector of Police, Paradeep, purportedly on his own information on
19.3.1984 at 11.15 A.M.
and was formally
registered at the Paradeep Police Station at 12.15 P.M. on 19.3.1984. The
informant (The Circle Inspector) who has been examined as P.W. 49 is admittedly
not a witness to the occurrence, but it is evident from the F.I.R. as well as
his statement and statements of other witnesses that the F.I.R. was drawn-up on
the basis of narration given by some of the police officials and others. In the
FIR itself, it was mentioned that the informant had enquired into whole episode
from the police personnel and outsiders.
Prior to 19.3.1984
there was some internal dispute between the groups of labourers working in the
Paradeep Port area. It is further revealed that since tension was prevailing a
section of the Orissa State Armed Police (OSAP) had been deployed since
14.3.1984 near Atharbank, popularly known as "Iron ore plot" to maintain
law and order. In the F.I.R. it was mentioned that in the previous night, that
is to say, the night of 18.3.1984, a meeting had been held by accused Pandab
Swain (acquitted), Bata Samal (respondent no.2), Bishnu Pradhan (respondent
no.4), Sikhar Jena (respondent no.1), Sankar Sasmal (respondent no.3) and their
supporters wherein it was decided to finish Bhima Jena (one of the deceased).
It was also stated that in the said meeting it was further decided to kill
police personnel if they would come to the rescue of Bhima Jena, who was the
leader of the rival group. In the FIR it was further recited that at about 9.00
A.M. on 19.3.1984, Havaldar U.C. Jena (P.W.2) had informed at the police
station that Pandab Swain and his supporters were contemplating to attack the
rival members and they were armed with weapons like lathis, bombs, farsas
etcetera and had attacked brick-bats. It is further indicated that in view of
such development, the Officer-in-Charge of Paradeep Police Station
Sub-Inspector A.K. Kanungo (one of the deceased), proceeded towards the Iron
ore plot along with A.S.Is. K.T. Rao (P.W.3), S.K.Rout (P.W.8), Havaldar U.C.
Jena (P.W.2) and several other constables as well as personnel of APR Force in
a Trekker being driven by D.K. Das (P.W.9) to tackle the situation. After
reaching near Iron ore plot, these police officials found Pandab Swain,
respondents 1 to 4 and several others (named in the F.I.R.) and five hundred
others (not named in the F.I.R.), all of whom had assembled near the area. It was
further alleged that these people were armed with lathis, farsas, iron rods
etc. and were shouting to murder Bhima Jena and his supporters and had already
surrounded Bhima Jena. Seeing this, the police party rushed near the place of
assembly, but the mob became furious and started brick-batting the police
party. Immediately a group of the violent mob overturned the Trekker in which
the police officials had gone and assaulted the driver and set fire to the
Trekker.
Sikhar Jena
(respondent no.1) and hundred others chased the O.I.C. and party for assault
and simultaneously set fire to the OSAP Tent. Lathi charges affected by the
police party including the OSAP were over- powered by the turbulent mob and
police personnel including Bhima Jena were brutally assaulted by Maheswar Swain
(acquitted), Bipin Dalei (not an accused), GaganLenka (acquitted) and others by
iron rod and farsas. It was further recited that the O.I.C. having no other
alternative ordered for firing and himself fired from his revolver in the self-defence.
The mob attacked the O.I.C. and the police personnel and snatched away the
revolver from the O.I.C. and three rifles from OSAP Sepoys along with
ammunition and themselves fired from it. Simultaneously certain members of the
violent mob also inflicted fatal injuries on the head of the O.I.C. and other
police personnel. As a result, O.I.C. A.K.Kanungo, APR Mustaque Mohammad, APR
Constable Niranjan Sahu, OSAP Sepoy No. 3, P.K.Mohapatra and leader of the
opposite group Bhima Jena succumed to the injuries instantaneously at the spot.
Besides, A.S.Is, K.T.Rao, S.K.Rout, APR Constables, OSAP Sepoys and Havildar
U.C. Jena sustained severe injuries. The unruly mob also set fire to the
hutments of the rival labour group. Due to firing by the police, some of the
members of the mob also received injuries. The police Trekker number OSU 2847
and OSAP Tent were completely gutted by fire. The informant further recited
that after having received the information regarding serious law and order
situation involving loss of lives of police personnel he himself rushed to the
spot and after arrival found the mob escaping in different directions and he
saw the dead bodies of the police personnel and Bhima Jena lying scattered on
the road.
On the aforesaid
allegations, after completion of investigation, charge sheet was submitted
against all the accused persons who faced the trial and some others who had
absconded.
Accused persons
pleaded innocence. Accused Pandab Swain took the plea of alibi as he claimed
that he was attending a meeting in the office of the Chairman of Paradeep Port
Trust at the relevant time. Forty nine witnesses were examined to further the
prosecution version. PWs 2, 3, 8 to 11, 14 to 16, 25, 28 to 31 and 36 were
stated to be eye witnesses. Out of these witnesses PWs 2, 3, 8 to 10, 28 to 31
and 36 were police personnel whereas PW-11, 14, 15, 16 and 25 were stated to be
supporters of the deceased. Ten witnesses were examined by the accused persons
primarily to prove the plea of alibi. As noted above, five persons lost their
lives for which charges have been framed. The deaths took place at different
spots but in the same area. The trial Court disbelieved some of the witnesses
but convicted the respondents for having caused the death of A.K. Kanungo, the officer-in-charge
and in respect of other allied offences. The conviction of the said respondents
was primarily based on the evidence of PWs 2 and 8.
PW-2 was one of the
Havaldars of Paradeep Police station. Respondents 1 to 5 were convicted under
Section 302 read with Section 149 of the Indian Penal Code, 1860 (in short the
`IPC') and sentenced to undergo imprisonment for life. Those five respondents
were also convicted under Section 307 read with Section 149 IPC for attempting
to cause murder and sentenced to undergo RI for seven years; under Section 330
read with Section 149 I.P.C. and sentenced to undergo rigorous imprisonment for
five years and under Section 9 (b) of the Indian Explosives Act, (in short
`Explosive Act') read with Section 149 IPC and sentenced to undergo RI for two
years. Respondents 1 to 3 were further convicted under Section 148 IPC and
respondents 4 and 5 were convicted under Section 147 I.P.C and sentenced to
undergo rigorous imprisonment for three years and two years respectively. Respondent
No.6 has been convicted under section 353 I.P.C. and sentenced to undergo
rigorous imprisonment for two years.
Originally, 114
accused persons were prosecuted and faced trial under twenty nine heads of
charges. Out of the 114 accused persons, a few expired during the trial.
Ultimately, apart from the six respondents, all other accused persons have been
acquitted. In the absence of any appeal against acquittal at the instance of
the State, the acquittal of all other accused persons became final. The High
Court by the impugned judgment allowed the appeal discarding the evidence of
PW-2.
3.
Learned
counsel for the appellant submitted that by a cryptic practically non-reasoned
order the acquittal has been directed.
4.
Learned
counsel for the respondents on the other hand supported the judgment of the
High Court.
5.
We
find that the High Court has discussed in major parts of its judgment the
factual scenario as projected by the parties. Thereafter by abrupt conclusions
PW-2's evidence has been discarded. This certainly was not the proper way of
disposing of an appeal involving accusations relating to death of five persons.
On that limited ground, we set aside the impugned judgment and direct the High
Court to re-consider the matter afresh dealing with various points highlighted
by the prosecution and responses of the accused persons. If the High Court
intends to differ from the conclusions of the trial Court it has to indicate
reasons therefore. Merely stating that the evidence of a witness is not
believable would not suffice. We make it clear that we have not expressed any
opinion on the merits of the case.
6.
The
appeal is disposed of accordingly.
............................................J.
(Dr. ARIJIT PASAYAT)
............................................J
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