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2019 DIGILAW 612 (ORI)

Balaram Bhumia v. State of Odisha

2019-10-15

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. This revision from the judgment dated 18.07.2019 passed by the learned Sessions Judge, Malkangiri in Criminal Appeal No. 06 of 2015. By the said Judgment, the appeal filed by these petitioners challenging the Judgment of the conviction and order of sentence dated 24.07.2015 passed by the learned Asst. Sessions Judge (STC), Malkangin in C T. Case No. 16 of 2013 has been dismissed. The petitioners (accused persons) have been convicted for offence under Section 506(II)/201/34 of the IPC and each has been sentenced to undergo rigorous imprisonment for a period of two years for offence under Section 506(H) of the IPC and pay fine of Rs. 500/- in default to undergo rigorous imprisonment for a period of two months for the offence under Section 201 of the IPC 2. Prosecution case in short is that- On 05.05.2010 night when the deceased was witnessing a video show at village Durumaguda, a boy (Juvenile in Conflict with Law, as he then was; hereinafter, for short, called as "the JCL" called and took her with him. Thereafter, the deceased girl did not return home. So the informant (who happens to be the mother of the deceased) and one Parvati went in ' search of her at different places. During the search, they found the dead body of the deceased to be hanging from the branch of a Mahula tree at one such place in that village. It is stated that the JCL- who happens to be a native of village Kolipalli and his co-villagers threatened the informant with confinement and compelled her and others present to bring down the dead body from the tree. The informant being helped by others who were present there, so brought down the dead body of the deceased girl. It is further stated after the dead body was brought down and placed on the ground, the JCL and his family members threatened the informant with action through police against her, if the dead body was not cremated. It is the further case of the prosecution that Balaram Bhumia and Manika Bachhar, these two revisionist-petitioners had hurled threat at the informant to take the life of her son unless, she cremated the dead body of her daughter. So, it is said that the informant finally cremated the dead body with the help of some other villagers. It is the further case of the prosecution that Balaram Bhumia and Manika Bachhar, these two revisionist-petitioners had hurled threat at the informant to take the life of her son unless, she cremated the dead body of her daughter. So, it is said that the informant finally cremated the dead body with the help of some other villagers. Later, having suspected that her daughter had been raped and murdered, she lodged a written report with the Inspector-in-Charge of Malkangiri P.S. Based on that, Malkangiri P.S. Case No. 62 of 2010 was registered and investigation commenced. On completion of investigation, charge-sheet was placed against the JCL so as to face the charges before the appropriate forum as provided in law Simultaneously, charge-sheet was also placed against these petitioners being arraigned as accused persons putting them to trial for commission of offence under Section 506(11)/201 read with Section 34 of the IPC. 3. In the trial, the accused persons took the plea of complete denial. From the side of the prosecution, altogether twenty witnesses have been examined, when the defence has examined two. The F.I.R. Ext. 1; seizure lists, Ext. 2, 3, 4, 5 & 6; medical examination report, Ext. 7; spot map, Ext. 9 etc. have also admitted in evidence. 4. The trial Court upon examination of the evidence and evaluation of the same has rendered a finding that these accused persons have committed offence under Section 506(II)/201 read with Section 34 of the IPC. Accordingly, they have been sentenced as afore-stated. The appellate Court being moved by these accused persons in assailing the finding of conviction and consequential order of sentence, no such fruitful result has yield. Hence, this revision. 5. At this juncture, before proceeding to take note of the submission of the learned counsel for the accused persons and the State, on the merit of the finding of conviction; one important facet which had emerged before the conclusion of the trial of the case needs its mention. The JCL had faced the enquiry as provided under the special legislation meant for the said category of offenders. The Juvenile Justice Board being presided over by the learned Chief Judicial Magistrate-cum-Principal Magistrate on examination and evaluation of the evidence recorded therein has rendered a finding against the prosecution that it has not been able to establish the charges under Section 376/306/506/201/34 of the IPC against said JCL. The Juvenile Justice Board being presided over by the learned Chief Judicial Magistrate-cum-Principal Magistrate on examination and evaluation of the evidence recorded therein has rendered a finding against the prosecution that it has not been able to establish the charges under Section 376/306/506/201/34 of the IPC against said JCL. In the said trial, besides the finding against the prosecution as regards lack of acceptable evidence against the JCL for commission of offence under Section 376/36/506 of the IPC, specific finding has been recorded that the prosecution evidence is not convincing to conclude that the JCL had participated in the cremation of dead body of the deceased girl. Learned counsel for the petitioners (accused persons) during hearing has filed the certified copy of the judgment dated 22.10.2011 passed by the learned Juvenile Justice Board, Malkangiri in Juvenile Case No. 20 of 2010 (G.R. Case No. 126 of 2010), which is on record. 6. Learned counsel for the petitioners (accused persons) submitted that the Courts below has completely erred both on fact and law by elbowing the findings rendered by the Juvenile Justice Board in the statutory enquiry which the JCL who is said to have committed the principal offerees had faced. According to him, said judgment being a part of the record, the courts below have not at all discussed its impact in so far as these' accused persons who have been charged for offence under Section 506(H)/201 read with 34 of the IPC are concerned. He further submitted that JCL in the enquiry having not been found to have the involvement in the commission of offence under Section 376/306/506/201 of the IPC, no finding ought to have been recorded against these accused persons that they had intimidated the informant and had the knowledge or reason to believe that offence under Section 376/306 of the IPC had been committed by the JCL and with such knowledge or belief, they caused the evidence as to commission of said offences to disappear with the intention of screening the offender, here the JCL from legal punishment and had succeeded in that mission by getting the dead body of the deceased girl, cremated through the informant and others. He thus urged that the finding of conviction even though concurrent is not sustainable in the eye of law and now in view of the acquittal of the JCL of all the charges, it not permissible to so hold these accused persons guilty of commission- of offence under Section 506(II)/201 read with Section 34 of the IPC. 7. Learned counsel for the State submits that the appellate Court having bestowed due attention on this aspect of acquittal of the JCL in the enquiry held under the Juvenile Justice (Care and Protection of Children) Act, 2000 has rightly distinguished the role attributed to these accused persons in the entire crime scenario in holding that said acquittal of the JCL has no such legal impact in the trial against these accused persons where if the evidence on record so justify findings can be given contrary to the findings returned in the enquiry against the JCL. 8. Admittedly, the prosecution allegation as to commission of offence under Section 376/306 of the IPC runs against that JCL and in addition to that he is also alleged to have committed the offence under Section 506/201 read with Section 34 of the IPC. These accused persons have been charged for offence under Section 506(II)/201 red with Section 34 of the IPC. The JCL has been acquitted of all the charges in the enquiry held under the JJ(CPC) Act and that has attained finality. In that enquiry, in total eleven witnesses from the side of the prosecution had been examined' and out of those eleven witnesses ten added with few more have been brought to the witness box in the trial against these accused persons. In that enquiry, the Juvenile Justice Board on examination of the evidence and their assessment with respect to each of the charges, has held that' the prosecution:- (i) has not been able to prove the charge under Section 376 of the IPC against the JCL; (ii) has failed to make out a case for offence under Section 306 of the IPC against the JCL; (iii) case for offence under Section 506(11) of the IPC against the JCL has not been established; and (iv) no case for commission of offence under Section 201 of the IPC against the JCL; has not been proved. 9. 9. These accused persons in the trial have been found guilty for offences under Section 506(II)/201 read with Section 34 of the IPC. It is stated that the informant-P.W. 2 was criminally intimidated by the JCL who was very much present at the place where dead body was hanging and these accused persons compelled her to bring down the dead body of her daughter from the branch of the tree and forced them for its cremation. As per the prosecution case, the intimidation was first from the side of the JCL and that being told by him, these accused persons joined. The next charge against them is that, they had the knowledge and the reasons to believe that offence under Section 376/306 of the IPC had been committed by the JCL and with such knowledge and belief they with the JCL had participated in causing disappearance of the evidence of commission of said offences with an intention to screen the JCL from the legal punishment. It is seen that the JCL has not been found guilty of that offence of criminal intimidation. These accused persons have been charged for commission of offence under Section 506 with the aid of Section 34 of the IPC to. have shared the common intention with the JCL who was present and initiated the act of intimidation. The findings returned in the enquiry held against the JCL are to be given due weight age and regard. When the JCL has been acquitted of the charges under Section 506/201 of the IPC; the charge against these accused persons for commission of offence under Section 506/201 of the IPC with the aid of Section 34 of the IPC, on the admitted factual setting of the prosecution as to fail. When the JCL has been acquitted of the charges under Section 506/201 of the IPC; the charge against these accused persons for commission of offence under Section 506/201 of the IPC with the aid of Section 34 of the IPC, on the admitted factual setting of the prosecution as to fail. The so called principal offender i.e. the JCL having been acquitted of the charges under Section 376/306 of the IPC, the knowledge or reason to believe that offence under Section 376/306 of the IPC had been committed by the said JCL are no more attributable to these accused persons and it cannot be said that they and with such knowledge had proceeded further in causing the evidence of commission of offences disappear with the intention of screening that JCL from legal consequences In the premises as above, the findings returned by the Courts below holding these accused persons guilty for commission of offence under Section 506(11)/201 read with Section 34 of the IPC cannot be sustained and the conviction for the said offences as has been recorded against them by the trial Court as confirmed by the appellate Court are liable to be set aside; so also the consequential order of sentence. 10. In the wake of aforesaid, the revision stands allowed. The judgment of conviction and order of sentence passed in C.T. Case No. 16 of 20.13 which have been confirmed in Crl. Appeal No. 06 of 2015 are hereby set aside. The petitioners (accused persons) stand acquitted of the charges under Section 506(II)/201/34 of the IPC. The bail bonds executed by them shall stand discharged. The judgment be forthwith communicated to the court below.