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2009 DIGILAW 284 (ORI)

BIPIN MAHAKUD v. STATE OF ORISSA

2009-03-27

B.K.PATEL

body2009
JUDGMENT : B.K. Patel, J. - In Criminal Appeal No. 213 of 1999 as well as Jail Criminal Appeal No. 219 of 1999 the Appellants have assailed the judgment and order passed by the learned Additional Sessions Judge, Nayagarh in S.T. Case No. 27/19/51 of 97/95/94 convicting and sentencing them u/s 302 read with 34 I.P.C. 2. Both the appeals were heard by a Division Bench of this Court and both the Hon'ble Judges constituting the Bench held the order of conviction to be unsustainable and accordingly set the conviction set aside. However, while Hon'ble Sri Justice P.K. Tripathy was of the opinion that the case had to be remanded for retrial, Hon'ble Sri Justice B.P. Ray was of the opinion that the impugned judgment of conviction and sentence had to be simply set aside. In view of such divided opinions, the appeals with the opinions of their Lordships, Hon'ble Sri Justice P.K. Tripathy and Hon'ble Sri Justice B.P. Ray, have been assigned to me for opinion u/s 392 of the Code of Criminal Procedure. 3. I have gone through the lower court records and the opinions of my esteemed brothers, Hon'ble Sri Justice P.K. Tripathy and Hon'ble Sri Justice B.P. Ray. Learned Counsel for the Appellants and learned Counsel for the State were also heard at length. Keeping in view the conspectus of the entire case, I also find that the impugned judgment and order is not legally sustainable and has to be set aside. 4. I also further respectfully agree with my esteemed brother Hon'ble Sri Justice B.P. Ray that the facts and circumstances of the case do not warrant remand of the case for retrial. As has been observed by Hon'ble Sri Justice B.P. Ray, such conclusion finds support from the decisions in State of West Bengal and Another Vs. Laisal Haque and Others, and Ukha Kolhe v. State of Maharashtra, AIR 1963 SC 1531 . 5. The Appellants were implicated in the case for the occurrence which took place in the year 1993. As it appears, both the Appellants are in jail custody since the date of their production before the learned J.M.F.C., Daspalla on 23.09.1993 in G.R. Case No. 479 of 1993 out of which the Sessions Trial arose. Trial commenced upon framing of charge on 5.8.1996. In course of trial prosecution examined 8 witnesses of whom P.W.8 was examined on 8.12.1998. As it appears, both the Appellants are in jail custody since the date of their production before the learned J.M.F.C., Daspalla on 23.09.1993 in G.R. Case No. 479 of 1993 out of which the Sessions Trial arose. Trial commenced upon framing of charge on 5.8.1996. In course of trial prosecution examined 8 witnesses of whom P.W.8 was examined on 8.12.1998. Thereafter the case was posted on different dates for appearance and examination of other witnesses including the Medical Officer who conducted autopsy of the dead body of the deceased and the Investigating Officer. Neither of them appeared upon which the Director of Health Services, Orissa and the A.I.G.(Supplies), Cuttack were requested on 3.4.1999 as well as 19.4.1999 to direct them to appear in Court. Thereafter, Director of Public Prosecution as well as the Secretaries of the Home and the Health Departments also appear to have been apprised of the situation and requested to ensure attendance of the two witnesses. All such efforts having failed to yield any result, learned trial court on 25.6.1999 appears to have passed a detailed order indicating the circumstances under which the prosecution was closed. Thus, it is found that the trial court having made all attempts and efforts to procure attendance of the Investigating Officer and the Medical Officer to be examined as prosecution witnesses in court, was constrained to dispense with their evidence. 6. It is well settled that retrial should not be directed to simply allow the prosecution to fill in the gaps. In the case of Machander Vs. State of Hyderabad, while declining to accept the motion to remand the case and reopen the trial, it was held by Hon'ble Supreme Court: We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is not one sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. Justice is not one sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detections of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go. 7. In Rasjeswar Prasad Mishra v. The State of West Bengal and Anr. AIR 1965 S.C. 1887 , while considering the ambit of the power of the appellate court to order receipt of additional evidence, the Hon'ble Supreme Court held that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise. The power has to be exercised sparingly and only in suitable cases. The Hon'ble Supreme Court in Akalu Ahir and Others Vs. Ramdeo Ram, also held that normally retrial should not be ordered unless there is some infirmity rendering me trial defective. 8. Learned Counsel for the Appellants also brought to my notice a recent decision of this Court in Santa ' Saman Tudu and Ors. v. State of Orissa (2009) 42 OCR 659, wherein this Court, while setting aside conviction of the Appellant u/s 302 I.P.C., held that the prosecution has signally failed to prove that the deceased suffered homicidal death since post-mortem report was not available as evidence and the doctor had not been examined. 9. In such view of the matter, the impugned judgment of conviction and sentence is set aside. The Appellants be set at liberty forth with, if not required to be detained otherwise. Both the appeals are, accordingly, allowed. Final Result : Allowed