State Of Orissa vs Udeswar Pradhan And Others

The present petition by the State seeks leave to appeal against the judgment dated 12th May, 2011 passed by the learned Adhoc Additional Sessions Judge, Fast Track Court-II, Kandhamal-Phulbani in Sessions Trial Case No.12 of 2009 acquitting the Opposite Party-Accused persons of the offences punishable under Sections 147, 148, 302, 120-B, 153-A read with Section 149 of IPC and Sections 25 and 27 of the Arms Act.

The case of the prosecution is that in the aftermath of the assassination of Swami Laxmanananda Saraswati there were incidents of communal violence throughout the Kandhamal district. It was alleged that on 26th August, 2008 in the afternoon at around 3 pm, the four accused persons along with certain others in a mob armed with weapons started shouting slogans and entered Rugudi Sahi, a hamlet mostly inhabited by the people belonging to the Scheduled Castes who were Christians. The people of the sahi being scared for their lives started running helter and skelter. From among the mob, one Belarsen Dehury (Accused No.3) is stated to have emerged and fired from his gun. The bullet struck Ajiba Digal (the deceased) and he suffered an instantaneous death.

Arising out of the incident, PS Case No.73 of 2008 was registered at the Balliguda PS and in turn, G.R. Case No.190 of 2008 was registered in the file of the S.D.J.M., Balliguda. Sixteen number of witnesses were examined by the prosecution of which PWs-2, 3, 4, 5 and 7 were the eye-witnesses. PW-12 was the doctor who conducted the autopsy over the dead body. There were four Investigating Officers (IOs) (PWs-11, 13, 14 and 16).

On behalf of the defence, five witnesses were examined to refute the prosecution’s story that a gunshot was fired by Belarsen Dehury. The plea of alibi on behalf the two accused persons was also sought to be established.

On a careful analysis of the evidence, the trial Court found that the story of the prosecution that the firing took place at the instance of the accused that resulted an instantaneous death of the deceased as a result of gunshot wounds was not able to be established by the prosecution. While indeed the medical evidence showed that the death was homicidal, linking the crime to the Opposite Party-accused was not able to be demonstrated by the prosecution. For instance, the trajectory of the bullet from the upper portion to the lower portion of the body at an angle was not able to be explained by the prosecution. The witnesses appeared to have spoken in a parrot-like fashion without spelling out any particular overt act to parrot-like fashion to implicate each of the accused persons. As regards the three of the accused, i.e., Udeswar, Laxmi Narayan and Simanchal, two of the eye-witnesses, i.e., PW-3 (Subodh Digal) and PW-5 (Goutam Digal) claimed that they had not seen them at all.

The trial Court went into the aspects of the medical jurisprudence for the angle of the entry wound and the exit wound caused by the bullet and came to the conclusion that the prosecution story had too many loopholes which were not explained. Worse still there was no recovery of the fire arm or the fired bullet. There was no ballistic report. Further, there was no x-ray examination of the gun-shot wounds to determine the track of the bullet. The mob was shown to be present at a right angle to the deceased but according to the prosecution, the firing took place from the front of the deceased. This was inconsistent with the actual position of the entry wound and exit wound. The plea of alibi of two of the accused persons was perfectly established by the defense evidence which was unable to be shaken by the prosecution.

Consequently, on a careful analysis of the entire evidence, the trial Court came to the conclusion that the prosecution had failed to prove the case against the accused beyond all reasonable doubt.

Having again examined the entire evidence with the assistance of learned Additional Government Advocate for the State, this Court finds that the trial Court has committed no error in giving the Opposite Party-Accused the benefit of doubt.

No grounds have been made out for interference. Accordingly, the CRLLP is dismissed.

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