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2016 DIGILAW 830 (ORI)

Dhusasana Jena v. State of Orissa

2016-09-19

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. 1. Mr. Soura Chandra Mahapatra, learned Senior Counsel files his appearance memo on behalf of the petitioner in Court today which is taken on record. 2. Heard Mr. Soura Chandra Mahapatra, learned counsel for the petitioner, Mr. Aparesh Bhoi, learned counsel for the opposite parties nos. 2 and 3 and Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel for the State. 3. The petitioner Dhusasana Jena is the informant in Basudevpur P.S. Case No.151 of 2002 which was instituted on 04.11.2002 for commission of offences under Sections 341/ 342/325/364/307/109/34 of the Indian Penal Code against six accused persons namely Muktikanta Mandal (opposite party no.2), Basanta Nayak, Kailash Nayak, Raghunath Jena, Jaya Krushna Rout and Nepal Barik (opposite party no.3). After completion of investigation, charge-sheet was submitted against four accused persons namely Raghunath Jena, Jaya Krushna Rout, Basanta Nayak and Kailash Nayak on 21.02.2003 for offences punishable under Sections 342/364/304/34 of the Indian Penal Code. The case was committed to the Court of Session and on 10.07.2006, the learned Trial Court framed charges under sections 342/34, 364/34 and 302/34 against four charge sheeted accused persons. 4. During course of trial, one Sulochana Jena who is the mother of the deceased Niranjan Jena was examined as P.W.1, the informant Dhusasana Jena was examined as P.W.2 and one doctor namely Subash Ch. Biswal who was the Medical Officer attached to District Headquarters Hospital, Bhadrak was examined vide P.W.3. An application under Section 319 Cr.P.C. was filed by the prosecution for impleading the opposite parties nos. 2 and 3 as accused and to proceed against them. The learned Trial Court vide impugned order dated 23.07.2007 has been pleased to reject such application, hence this revision. 5. Learned counsel for the petitioner, Mr. Soura Chandra Mahapatra contended that the learned Trial Court was not justified in rejecting the application under section 319 Cr.P.C. filed to implead the opposite parties nos. 2 and 3 as accused persons inasmuch as from the evidence of P.Ws.1 and 2, sufficient materials are available against those two persons to have participated in the assault of the deceased. He further contended that in the dying declaration, the deceased has implicated not only four persons who are facing trial but also opposite parties nos. 2 and 3 and such dying declaration had been deposed to by P.W.1 and P.W.2. He further contended that in the dying declaration, the deceased has implicated not only four persons who are facing trial but also opposite parties nos. 2 and 3 and such dying declaration had been deposed to by P.W.1 and P.W.2. Learned counsel for the petitioner further contended that even the informant who has been examined as P.W.2 has mentioned about the dying declaration in the F.I.R. which was lodged on 04.11.2002, wherein these two opposite parties nos. 2 and 3 have also been named as accused persons along with other co-accused persons who are facing trial. He has further contended that the learned Trial Court has committed error of record in holding that P.W.2 has not implicated opposite party no.2 as the assailant of the deceased and therefore, it is a fit case where the impugned order should be set aside and the opposite parties nos.2 and 3 should be summoned to face trial along with other co-accused persons who are facing trial. 6. Learned counsel for opposite parties nos. 2 and 3, Mr. Aparesh Bhoi on the other hand contended that the Medical Officer who has been examined as P.W.3 in his evidence has stated that the deceased was irritable and was not replying to the command. He has further submitted that if that was the condition of the deceased at the time of examination by P.W.3 then the question of making dying declaration before P.W.1 and P.W.2 appears to be an improbable feature. Learned counsel for the opposite parties no.2 and 3 placed reliance in the case of Chandramani Guru -Vrs.-State of Odisha & another reported in (2010) 47 Orissa Criminal Reports 945, Y. Saraba Reddy -Vrs.-Puthur Rami Reddy and others reported in (2007) 37 Orissa Criminal Reports (SC) 565 and Lal Suraj @ Suraj Singh -Vrs.-State of Jharkhand reported in (2009) 42 Orissa Criminal Reports (SC) 860. 7. Learned counsel for the State supported the contentions raised by the learned counsel for the petitioner and submitted that in view of the materials available on record, the opposite parties nos. 2 and 3 should face trial along with the co-accused persons. 8. 7. Learned counsel for the State supported the contentions raised by the learned counsel for the petitioner and submitted that in view of the materials available on record, the opposite parties nos. 2 and 3 should face trial along with the co-accused persons. 8. In view of the decisions cited by the learned counsel for opposite parties nos.2 and 3, it is the settled principle of law that power under Section 319 Cr.P.C. is an extraordinary power which is conferred on the Court and should be used sparingly only if compelling reasons exists for taking action against a person against whom action had not been taken earlier. The word ‘evidence’ in section 319 of the Code contemplates the evidence of witnesses given in Court. Even if a person has not been charge sheeted, he may come within the purview of definition of such a person as contained in section 319 of the Code. The Trial Court has undoubted jurisdiction to add any person not being the accused before it to face trial along with other accused persons, if the Court is satisfied at any stage of the proceedings on the evidence adduced before it that the persons who have not been arrayed as accused should face the trial. A person who was initially named in the F.I.R. as an accused, but not charge sheeted, can also be added as accused to face the trial under section 319 of the Code and the Trial Court can take such a step to add such persons as accused only on the basis of “evidence” adduced before it and not on the basis of the materials available in the charge sheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute the “evidence”. 9. Coming to the factual aspect of this case, not only in the First Information Report which has been lodged by P.W.2 Dhusasana Jena indicates about the dying declaration made by the deceased in which apart from the co-accused persons who are facing trial, opposite parties nos. 2 and 3 have been named as the assailants of the deceased but also during course of trial, P.W.1 and P.W.2 have implicated the opposite parties nos. 2 and 3. 10. 2 and 3 have been named as the assailants of the deceased but also during course of trial, P.W.1 and P.W.2 have implicated the opposite parties nos. 2 and 3. 10. P.W.1 Sulochana Jena has stated that when the informant asked about the incident to the deceased, the deceased told that Kuna @ Raghunath Jena, Jaya Krushna Rout, Basant Nayak, Kailash Nayak, Nepal Barik (opposite party no.3) and Muktikanta Mandal (opposite party no.2) had assaulted him, when he was returning from Anantapur by a cycle taking food for driver Babuli Barik on the road where they stopped him. The deceased further told that five to six persons reached there by a trekker holding hockey sticks and iron rods and assaulted him and took him inside the trekker and inside the trekker, they also assaulted him and when the deceased requested them to leave him, they told that they shall act as per the direction of their boss, Muktikanta Mandal (opposite party no.2) and took him to Balinagar field. At Balinagar field, opposite party no.2 Muktikanta Mandal was present and on his direction, they assaulted him and gagged his mouth by a cloth. Thereafter, the deceased became unconscious. 11. P.W.2 Dusashan Jena (petitioner) has also stated that on asking by his mother and himself, the deceased told that he had gone to village Anantapur for loading of bamboo in his truck with the driver, Babuli Barik. When they were loading bamboo at village Anantapur, Babuli told him to bring food for him. Thereafter, he went to Anantapur market and after bringing food for Babuli, he was returning by a bicycle. On the way, a trekker obstructed his way. About six to seven persons got down from the trekker and forcibly took him inside the trekker and assaulted him. The persons who got down from the trekker were, Basanta Nayak, Kailash Nayak, Raghunath Jena, Jaykrushna Rout and Nepal Barik (opposite party no.3). They assaulted the deceased inside the trekker by means of hockey sticks, iron rods. Thereafter, they took him to “Balinagar Padia” where one Muktikanta Manda (opposite party no.2) was present and he instructed the persons who had kidnapped the deceased to finish him or to make him permanently disabled and went away. Thereafter, the accused persons along with Nepal Barik (opposite party no.3) assaulted the deceased and gagged his mouth by a cloth. Thereafter, they took him to “Balinagar Padia” where one Muktikanta Manda (opposite party no.2) was present and he instructed the persons who had kidnapped the deceased to finish him or to make him permanently disabled and went away. Thereafter, the accused persons along with Nepal Barik (opposite party no.3) assaulted the deceased and gagged his mouth by a cloth. After the assault, the accused persons and Nepal Barik (opposite party no.3) took the deceased to village Sugo and threw him in front of the house of Braja Nayak. 12. The contention raised by the learned counsel for the opposite parties nos. 2 and 3 that since P.W.3 Dr. Subash Ch. Biswal stated that when he examined the patient (deceased), he was irritable and not replying to the command and therefore, the dying declaration cannot be accepted is a matter of appreciation of evidence which is to be dealt by the learned Trial Court at the appropriate stage. At this stage, I am not expressing any opinion on such aspect. 13. Considering the materials available on record, particularly the evidence of P.W.1 and P.W.2, I find that in the dying declaration, the deceased has not only implicated four accused persons who are facing trial but also the opposite parties nos.2 and 3 to have participated in his assault. Law is well settled that conviction can be based if the Court is satisfied that the dying declaration is true and voluntary even without corroboration. The dying declaration must not be the result of tutoring, prompting or imagination. The Court has to be satisfied that the deceased was in a fit mental state to make the dying declaration for which the Court may look into the medical evidence or the surrounding circumstances. In view of the evidence of P.W.1 and P.W.2, I am of the view that the order of rejection of the petition under section 319 Cr.P.C. is not proper and justified as there are compelling reasons to proceed against opposite parties nos. 2 and 3. 14. Therefore, the impugned order under Annexure-3 dated 23.07.2007 passed by the Addl. Sessions Judge (F.T.C.-II), Bhadrak in S.T. Case No.28/128 of 2003 is set aside and the learned Trial Court is directed to array the opposite parties nos. 2 and 3 namely Muktikanta Mandal and Nepal Barik as accused persons and proceed against them in accordance with law. 15. 14. Therefore, the impugned order under Annexure-3 dated 23.07.2007 passed by the Addl. Sessions Judge (F.T.C.-II), Bhadrak in S.T. Case No.28/128 of 2003 is set aside and the learned Trial Court is directed to array the opposite parties nos. 2 and 3 namely Muktikanta Mandal and Nepal Barik as accused persons and proceed against them in accordance with law. 15. It appears that the F.I.R. was lodged on 04.11.2002 and the Sessions Trial is of the year 2003 and therefore, I direct the learned Trial Court to expedite the trial and conclude the same within a period of six months from the date of receipt of this order of this Court keeping in view the provision under section 309 of Cr.P.C. 16. A copy of the order be forwarded to the learned Trial Court for compliance. Accordingly, the CRLREV is allowed.