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2019 DIGILAW 459 (ORI)

Sanatan Sarangi v. State of Orissa

2019-07-17

D.DASH

body2019
JUDGMENT : 1. The appellant by filing this appeal has assailed the judgment of conviction and order of sentence dated 20.07.1990 passed by the learned Addl. Sessions Judge, Bhadrak in S.T. Case No. 32/94 of 1989. By the said judgment, this appellant has been convicted for commission of offence under section 304(A) of the IPC and order has been passed that he would undergo rigorous imprisonment for a period of two years. At this juncture, it may be mentioned that along with the appellant, two other persons namely, Kata Chandra Behera and Prafulla Kumar Biswal being arraigned as accused had faced the trial and they have been acquitted of the charges. The appeal being admitted on 07.08.1990, on 14.11.2007 when it came to be heard by this Court, having heard the appeal in part, this Court then appointed Mr. G. Mishra, Advocate to address as to whether it is a fit case for exercise of suo moto revisional power as against the acquittal of the appellant and those two accused of the charge under section 302/114 read with section 34 of the IPC. On 20.11.2007, this Court upon hearing learned counsel for the appellant, learned Adll. Government Advocate and Mr. G. Mishra who had been engaged on the earlier date and on perusal of the evidence of eye witnesses as also the dying declaration, Ext.3 took a view that it is a fit case for exercise of suo moto revisional jurisdiction under section 401 of the Cr.P.C. Accordingly, notice has been issued to the appellant as well as the acquitted accused persons namely, Kata Chandra Behera and Prafulla Kumar Biswal to show-cause as to why the order of acquittal under section 302/114 read with section 34 of the IPC shall not be set aside. Pursuant to the said notice, the acquitted accused persons have entered appearance through their learned counsel. 2. Prosecution case in short is that on 01.03.1989 around 2.00 pm, the informant who was the Principal of Saheed Smruti College, Iram was sitting in his office, when accused persons namely, Kata Chandra Behera and Prafulla Kumar Biswal entered inside the room with some students as named. It is said that then they asked for Admit Cards. When the informant was giving the Admit Cards, the accused persons forcibly took to him to the Jeep bearing registration No. OIX-4646 which was standing outside. It is said that then they asked for Admit Cards. When the informant was giving the Admit Cards, the accused persons forcibly took to him to the Jeep bearing registration No. OIX-4646 which was standing outside. They tried to snatch away the Admit Cards from him. At this hour, the Headmaster of Saheed Smruti School came to the spot and wanted to ascertain the reason for the occurrence which was going on. The informant then came down and started talking with him. It is stated that at that point of time, the students came running to the Headmaster and abused him in filthy languages, when the Jeep which was facing towards village “Padhua” was given a turn by its driver. The students then threatened the Headmaster and so saying they dragged the informant to the Jeep. The Headmaster had then came closer to the Jeep. It is stated that the students sitting in the Jeep started abusing him and told him to see after their return. The Headmaster then asked the driver to detain the vehicle by coming to stand in front of the Jeep and know as to why the students were abusing. It is alleged that at that time, accused Kata Chandra Behera and Prafulla Kumar Biswal sitting in the Jeep told the driver-Sanatan to drive the Jeep and run over the deceased. The driver acting upon the direction of those two accused persons drove the vehicle at a high speed. Because of such driving, the Jeep ran over the Headmaster which has ultimately led to his death. The informant rushed to Basudevpur Hospital and saw the Headmaster lying in a critical condition with multiple injuries and blood oozing out of his mouth. It is further stated that accused persons-Kata Chandra Behera and Prafulla Kumar Biswal had so directed the driver to drive the vehicle solely with an intention to kill the Headmaster. On receiving the report with regard to above incident in writing from the P.W.1, police registered the case and the investigation commenced. During investigation, the witnesses were examined and the Jeep in question was seized. The incriminating articles seized were also sent for chemical examination. On completion of investigation, charge-sheet having been submitted, all the accused persons finally faced their trial after the case stood committed to the court of Sessions. 4. The defence plea is one of denial. During investigation, the witnesses were examined and the Jeep in question was seized. The incriminating articles seized were also sent for chemical examination. On completion of investigation, charge-sheet having been submitted, all the accused persons finally faced their trial after the case stood committed to the court of Sessions. 4. The defence plea is one of denial. Accused persons-Kata Chandra Behera and Prafulla Kumar Biswal had also taken a plea of alibi and to substantiate that plea, they had examined one witness from their side. 5. The trial court on analysis of evidence let in by the prosecution mainly the evidence of P.W. 1 and 3 projected by the prosecution as the eye witnesses to the occurrence has ultimately come to hold that no case under section 302 of the IPC is established so also the offence under section 112 of the M.V. Act. Finding that the prosecution has failed to establish the complicity of accused Kata Chandra Behera and Prafulla Kumar Biswal in the said incident leading to the death of the Headmaster of Saheed Smruti School, Iram, they have been acquitted Proceeding to further analyse the evidence, the trial court has found that the prosecution has established the case beyond reasonable doubt that accused-Sanatan Sarangi, had driven the Jeep in a rash and negligent manner in causing the death of said Headmaster. Accordingly, said accused Sanatan Sarangi has been convicted for offence under section 304(A) of the IPC and sentenced as aforesaid. 6. Mr. S.C. Palai, learned counsel for the appellant-Sanatan Sarangi submits that the finding of the trial court is based on detail analysis of the evidence of P.W. 1 & 3 as also the dying declaration, Ext.3 in so far as the acquittal of all the accused of the charge under section 302/114 of the IPC is concerned. Placing the deposition of those witnesses as also the dying declaration (Ext.3), he submits that the trial court did commit no mistake in holding that the prosecution has not been able prove the case for commission of offence under section 302/114 of the IPC. Placing the deposition of those witnesses as also the dying declaration (Ext.3), he submits that the trial court did commit no mistake in holding that the prosecution has not been able prove the case for commission of offence under section 302/114 of the IPC. It is his submission that there was no prior enmity of the accused persons with the deceased and the appearance of the deceased at the scene of the occurrence was all of a sudden and it is also never said that he had actively participated there or acted therein any such manner raising his voice against any of these accused persons. It is his submission that in view of the evidence, the trial court has rightly held that the accused had no intention to kill him. He further submits that finding of the trial court, that the death in the case is accidental not homicidal is also based on just and proper appreciation of evidence; further keeping in view the surrounding circumstances emanating from the evidence. He therefore, submits that there is absolutely no justification for interfering with the said order of acquittal of the accused persons of the charge offence under section 302/114 of the IPC. Next coming to the conviction recorded against accused-Sanatan for commission of offence under section 304(A) of the IPC as also the consequential order of sentence, he submits that the evidence on record is wholly insufficient to conclude that the death of the Headmaster has been the direct result of the rash and negligent act on the part of the accused-Sanatan Sarangi in driving the Jeep. He submits that none of the witnesses have stated that the vehicle was then at a high speed. Referring to the evidence of P.W. 1 & 3, it is his submission that the possibility of the deceased suddenly coming and getting dashed against the vehicle and then being pushed underneath is not ruled out. So, he submits that in the absence of any evidence that the accused-Sanatan Sarangi had driven the vehicle in order to dash the deceased in running over him, the trial court has erred both in fact and law in fastening the guilt upon accused-Sanatan Sarangi for offence under section 304(A) of the IPC. 7. Mr. So, he submits that in the absence of any evidence that the accused-Sanatan Sarangi had driven the vehicle in order to dash the deceased in running over him, the trial court has erred both in fact and law in fastening the guilt upon accused-Sanatan Sarangi for offence under section 304(A) of the IPC. 7. Mr. H.M. Dhal, learned counsel appearing on behalf of other two accused persons namely, Kata Chandra Behera and Prafulla Kumar Biswal who have been noticed by virtue of the order dated 14.11.2007 passed by this Court submits that in so far these accused persons are concerned, the trial court having taken the pain of analyzing the evidence in great detail has rightly found that these accused persons had absolutely no role in causing the death of the deceased. The very case of the prosecution that accused-Sanatan had driven the vehicle being instigated by these accused persons has been disbelieved. According to him, keeping in view the evidence of P.W. 1 & 3 as also accepting the dying declaration, Ext. 3 on its face value, the trial court has not found any complicity of these accused persons. He further submits that when the State had not preferred any appeal against the order of acquittal which had been passed on 20.07.1990, after long lapse of time i.e. seventeen and half years after the order of acquittal and that too without assigning strong reasons and pointing the legality if any to have been so committed by the trial court in recording the finding, there was no justification to initiate suo moto revision in issuing notice to these acquitted accused persons as also to the accused who had preferred appeal. He, therefore, submits that it is a fit case where the acquitted accused persons namely, Kata Chandra Behera and Prafulla Kumar Biswal be discharged of the notice. Learned Additional Standing Counsel submits all in favour of the order dated 20.11.2007 passed by this court. According to him, the trial court in view of the evidence on record ought not to have acquitted the accused persons of the charge of offence under section 302 /114 of the IPC. Learned Additional Standing Counsel submits all in favour of the order dated 20.11.2007 passed by this court. According to him, the trial court in view of the evidence on record ought not to have acquitted the accused persons of the charge of offence under section 302 /114 of the IPC. It is his submission that when there remains reliable evidence to show that accused Sanatan being directed by other two accused persons had driven the Jeep in such a manner at the particular place which was then crowded, the death of the Headmaster having been caused by the dash of the vehicle, the accused persons ought to be held guilty for commission of offence under section 302 of the IPC. Alternatively, he submits that when accused Sanatan who was on the driver’s seat of the Jeep at the relevant time and was having the knowledge about the consequences of the act of driving the Jeep in that particular place looking at the positioning of that deceased, his conviction under section 304(A) IPC under no circumstance is liable to be disturbed. The learned Amicus Curie reiterates the submission of the learned counsel for the State. 7. In view of above rival submissions, let’s straightway approach the evidence let in by the prosecution for their evaluation so as to judge the sustainability of the findings recorded by the trial court. The specific case of the prosecution is that accused-Kata Chandra Behera and Prafulla Kumar Biswal being in the Jeep directed that accused –Sanatan to drive and run over the deceased. It is not there in the evidence to show that any of these accused persons had prior enmity with the deceased. The deceased was also not present from the time when this accused persons arrived at the place. He arrived at the scene of the occurrence at later stage. As per the prosecution case, he was trying to ascertain the reasons for the said occurrence going on at the place. The evidence recorded reveal that when the deceased followed the students as to why they had scolded him, the Jeep started moving. At that point of time as has been stated by the witnesses examined by the prosecution, the deceased was behind the Jeep and not at its front. The evidence of P.W. 1 & 3 as also the dying declaration (Ext. At that point of time as has been stated by the witnesses examined by the prosecution, the deceased was behind the Jeep and not at its front. The evidence of P.W. 1 & 3 as also the dying declaration (Ext. 3) being read as whole do not inspire the confidence in the mind that accused Kata Chandra Behera and Prafulla Kumar Biswal had directed or instigated accused Sanatan to drive the Jeep at the relevant point of time so as to run over the deceased. The trial court has made thread bare discussion of the evidence of P.W. 1 and 3 as also the narration in the dying declaration, Ext.3 so as to come to that very conclusion. This Court finds no such justifiable reason to accord any dissent to the same. In that view of the matter, the exoneration of accused Kata Chandra Behera and Prafulla Kumar Biswal as per the judgment of the trial court cannot be said to be based on perverse appreciation of evidence or to be having any such infirmity so as to be interfered with in exercise of revisional jurisdiction. That is also the situation in so far as the acquittal of accused-Sanatan Sarangi of the charge under section 302 of the IPC is concerned. 8. Now coming to the finding as to commission of offence under section 304(A) IPC by accused Sanatan Sarangi, upon perusal of the judgment of the trial court, it is seen that the evidence on record run to the effect that when exchange of words was going on between the students, the deceased was very close to the Jeep. It has been noted by the trial court that evidence of P.W. 1 and others run on the score that since the students boarded the Jeep, accused-Sanatan drove the vehicle. The trial court has drawn an inference therefrom that accused-Sanatan was thus rash and negligent in driving the vehicle as a result of which the vehicle dashed against the deceased who fell down and then the vehicle ran over him. The trial court has drawn an inference therefrom that accused-Sanatan was thus rash and negligent in driving the vehicle as a result of which the vehicle dashed against the deceased who fell down and then the vehicle ran over him. In drawing such inference, the trial court as it appears has lost a sight of the surrounding circumstances and the situation that was prevailing in that of place which was remaining surcharged in view of the disturbance between the students and the authority of the College when it was not that easy or possible on the part of the driver to give any indication to all so as to see that nobody comes in front of the Jeep. The evidence on record has not been touched on the score that at that moment, the students having boarded the Jeep, this accused being on the driver’s seat had to move to avoid any untoward incident. On careful scrutiny of the evidence on record, this Court finds that the conclusion of the trial court that the death of the deceased had taken place or to have been caused due to rash and negligent act of driving of the Jeep by this accused –Sanatan cannot be sustained. The trial court as it appears has failed to appreciate the evidence on record in the backdrop of the entire scenario right from the beginning till the end. 9. For the aforesaid discussion, the finding of conviction of the accused Sanatan Sarangi and the order of sentence as imposed on him are liable to set aside. Said accused Sanatan being thus acquitted, the bail bonds executed by him shall stand discharged. 10. In the result, all the accused persons acquitted of the charge under section 302/114 of the IPC and under section 112 of the M.V. Act stand discharged of the notice issued against them pursuant to the order dated 20.11.2007 and the appeal filed by accused-Sanatan stands allowed.