Orissa High Court: In a criminal appeal filed under Section 374(2) of Code of Criminal Procedure (CrPC), 1973 against the Trial Court’s decision, whereby the convict was sentenced to undergo lifetime imprisonment and fine of Rs. 5000 for offences under Sections 147,148 and 436 r/w Section 149 of Penal Code (“IPC”), 1860 and for offences under Sections 302/201 r/w Section 34 of the IPC was imposed. The Division Bench of G. Satapathy* and D. Dash, JJ. on analysis of oral and documentary evidence found that the prosecution case against the convict was questionable, the witnesses’ evidence was suspicious, and there were no clear and conclusive evidence to support the convict’s guilt. Hence, the order of conviction by the Trial Court was set aside.
The house of PW1/ informant was ransacked by a mob with no reason on the evening of 25-08-2008 by arsoning. On being attacked by the mob the PW1 along with his family ran to save their lives and the convict who was the headmaster of Luhuringia Primary School killed younger brother of PW1 by assaulting him with axe . The FIR was lodged on 26-08-2008.
The Trial Court convicted the convict relying upon various witness statements and evidence.
The Court noted that the deceased’s body was neither found or recovered, hence it was required to be decided that in absence of corpus delicti, any conclusion of homicidal death of the deceased can be arrived at. The Court said that it is settled position that in order to hold a person guilty of the charge of murder, it is not essential that the corpus delicti must be found, since death of the deceased is to be established like any other facts and if the evidence on record establishes beyond reasonable doubt that within all human probability, the deceased was found murdered.
The Court noted from the prosecution witnesses’ statements that the deceased was assaulted to death by the mob and his dead body was burnt. The Court found that the death of the deceased was caused by the mob. The Court on perusal of the FIR noted that the PW1 had himself mentioned that eye witnesses are PW4 (deceased’s sister) and PW1 himself yet PW 5 and 6 were examined as eye witness. The Court on examination of the statement of PW 5 noted that it was stated that the convict assaulted his maternal uncle – deceased with a Tangia over his right leg at Budamaha Ashram Chhaka. However, this statement was contradicted by PW 7 (IO), who confirmed that PW 5 did not state that the accused assaulted his maternal uncle. PW 6 (deceased’s wife) was also contradicted by the defence and there was also no explanation of the late examination of PW 5 and 6 witnesses, while they were available from the date of occurrence and the examination of PW 1 and 4 was done on the same day of lodging of FIR.
The Court said that there was a significant doubt regarding the presence of PW 5 and 6 at the place of occurrence when they have been contradicted on material points and also in a religious riot, it is unnatural for the mob to only pursue one person and leave the other family members unharmed. This is because the rioters would not normally leave anyone of the other community/religion unharmed or without attempting to attack or chase them. The Court noted that according to PW1 in the FIR said that the ‘convict and his associate’ killed the deceased by causing axe hits while they chased him. The Court clarified that the phrase ‘convict and his associates’ is not the same as “only convict.”
The Court on examining the statement of the sister of the deceased, found that she exaggerated the event in her evidence. The Court noted that the witness statements concluded that the convict led the mob and administered one axe blow to the deceased’s right leg, however, the prosecution claims that he killed him alone. The witnesses’ evidence suggests that other members of the mob also attacked and killed the deceased.
The Court discussed the ingredients that are necessary to prove to bring guilt under Section 149 of the IPC. The Court said that it mandates the presence of ‘common object’ as that of unlawful assembly but common object has nowhere been defined. The Court clarified that mere presence of a person at the place of occurrence where the members of an unlawful assembly have gathered for carrying out of their illegal common object does not incriminate such persons, since such person is neither proved to be a member of unlawful assembly nor does he share the common object of such unlawful assembly.
In the matter at hand, the Court said that it was not proved that the convict was a member of an unlawful assembly or had common object as that of unlawful assembly and that nothing showcased that he was a member of unlawful assembly or shared a common object with the mob to commit riots and kill others. The Court said that for the liability for offence under Sections 302/34 and 201/34 of the IPC, his participation in the crime is statutorily required to be proved beyond all reasonable doubt through convincing and reliable evidence, however, the contradictions found in the evidence of witnesses, participation of the convict in the crime was found to be not. Further, the Court said that no evidence was forthcoming with regard to convict sharing any common object with the mob for destroying the house of PW1 and, therefore, the conviction of the convict for offence under Section 436/149 of IPC was not maintainable.
The Court said there was no proof that the mob attempted to assault the deceased or his family in village Dakerpanga, where the informant’s house was destroyed. If the convict had intended to harm the deceased and his family, he could have joined the mob that destroyed the informant’s house in village Dakerpanga and assaulted the deceased or other family members of PW1.
Therefore, the Court held that the evidence was not enough to hold the convict guilty under Section 149 or 34 of the IPC and the decision given by the Trial Court was set aside as the convict has the fundamental right to not be convicted unless proven guilty beyond all reasonable doubt.
[Kartik Parimanik v. State of Orissa, 2024 SCC OnLine Ori 1446, Decided on: 21-05-2024]
*Authored by: Justice G. Satapathy
Advocates who appeared in this case :
Counsel for Petitioner: Advocate A.P. Bose
Counsel for Respondent: ASC G.N Rout
