REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 564  OF 2002   

State of Orissa ...Appellant

Versus

Sikhar Jena and Ors. ...Respondents

J U D G M E N T

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

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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

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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

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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

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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

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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

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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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