State Of Orissa vs Sikhar Jena & Ors

State of Orissa ...Appellant

Versus

Sikhar Jena and Ors. ...Respondents

JUDGMENT

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

2 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

3 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

4 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

5 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

6 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

7 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. (Dr. MUKUNDAKAM SHARMA)

New Delhi, December 1, 2008

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