The Orissa High Court on Tuesday (1st September) set aside 34 years old judgment and order dated 21.07.1988 passed by Sessions Judge, Dhenkanal in S.T. Case No.53-D of 1986.
The said judgment and order of conviction of the appellant no.1 Nitia @ Nityananda Behera under section 304 Part II of the Indian Penal Code and that of the appellant no.2 Madhia @ Madhab Behera under section 324 of the Indian Penal Code and the sentence passed thereunder was found to be "not sustainable in the eye of the law".
The bench of Justice S. K. Sahoo in his Judgment noted,
"I am reminded of the oft-quoted legal maxim, 'Justice delayed is justice denied'. The right to speedy trial is a fundamental right. An appeal is a continuation of the trial. After fighting the legal battle for more than thirty-four years, the appellants have won the case."
The Background of the Case
In the said trial, appellant no.1 Nitya @ Nityananda Behera was charged under section 302 of the Indian Penal Code on the accusation of committing the murder of Raghaba Behera (hereafter 'the deceased') 2 on 18.02.1986 at about 2.00 p.m. at village Dighi under Kamakhyanagar police station in the district of Dhenkanal
On the other hand, appellant no.2 Madhia @ Madhaba Behera was charged under section 324 of the Indian Penal Code for voluntarily causing hurt to Rohita Behera (P.W.2) at the same time, place, and during the course of the same occurrence.
The learned Trial Court vide impugned judgment and order dated 21.07.1988 found the appellant no.1 Nitya @ Nityananda Behera guilty under section 304 Part-II of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for three years and appellant no.2 Madhia @ Madhaba Behera was found guilty under section 324 of the Indian Penal Code and he was sentenced to undergo rigorous imprisonment for six months.
The sequence of the facts presented by the Prosecution and the Court's observations thereby:-
Sequence No. I - A decision was taken in the village meeting in the presence of five shareholders to cut the Jamun tree and to utilize the trunk for making of doors and windows of the village high school and the branches of the tree to be taken by the five shareholders. Accordingly, the tree was cut by the villagers.
Court's Observation - In view of poor financial condition and their claim, it sounds improbable that the appellants would have agreed for donating the trunk of the tree to the village school and distributing the branches among the five shareholders.
The court held that the prosecution had failed to prove that any decision was taken in the village meeting relating to the cutting of the Jamun tree and its distribution.
Sequence No. II - The appellants took a cartload of branches of the tree in the morning hours to their house and again they came to the spot in the afternoon with a cart to take more branches and loaded the branches.
Court's Observation - The Investigating Officer had not seized any cart loaded with branches at the spot. He only seized one bullock cart on the village road of Dighi as per the seizure list.
P.W.2 had stated that he did not notice any cart at the spot during the spot visit of the Investigating Officer and all the branches of the Jamun tree which he had seen on the date of occurrence at the spot were as usual when the I.O. visited the spot.
Therefore, the prosecution evidence that the appellants at the time of occurrence had taken their cart to the spot and loaded it with the branches is not acceptable.
Sequence No. III – The deceased along with P.Ws.2, 4, and 5 arrived at the spot with a cart to take the branches and found the appellants loading the branches in their cart and they also tried to take the branches but the appellants prevented them.
Court's Observation - As the court had already disbelieved the prosecution case that the appellants had taken a cartload of branches earlier to their house and again trying to take another cartload of branches, if the prosecution party members came to the spot with the cart, ropes and axes to take away the branches and the appellants protested to them as because they were claiming shares over the Jamun tree, it cannot be said that they had committed any wrong in raising their protest to the prosecution party members.
Sequence No. IV - A quarrel ensued between the parties and the deceased was assaulted by the appellant no.1 Nityananda Behera and P.W.2 was assaulted by appellant no.2 Madhab 33 Behera. Appellant no.1 Nityananda Behera also sustained the injury during the course of occurrence.
Court's Observation - Looking at the manner in which the prosecution party members including the deceased had gone to the spot with a cart, ropes, and axes to bring the branches of the Jamun tree and they got annoyed with the appellants when they protested and that there was an exchange of words and a quarrel ensued between the parties.
The appellant no.1 had sustained an incised wound on his left shoulder for which he was hospitalized in the Jiral Hospital and the said injury has not been explained by the prosecution, even if it is accepted that the appellant no.1 in such a situation gave one blow to the deceased on his head and that to with the branch of the tree which appears to be more probable in view of the evidence of the doctor (P.W.1), it cannot be said that he has exceeded his right of private defence.
Similarly the appellant Madhaba Behera cannot be said to have exceeded his right of private defence of property in causing two simple injuries to P.W.2. The manner in which the prosecution projected its case of assault on the deceased as well as P.W.2 appears to be a doubtful feature.
No one from the prosecution side had tried to lodge any first information report on the date of occurrence which was lodged twenty-two hours after the occurrence.
Finally, the court said,
"In view of the glaring inconsistencies in the evidence of the prosecution witnesses and when the case as was projected by the appellants appears to be more probable, I am of the humble view that it is a fit case where the benefit of doubt should be extended in favour of the appellants." (emphasis supplied)
Final observation and verdict of the Court
As mentioned above, the appellants were acquitted of all such charges. The appellants were on bail under the orders of the Court. They were discharged from liability of their bail bonds. The personal bonds and the surety bonds stood cancelled.
Consequently, the court noted,
"The passage of time must have brought wrinkles on their faces and dark hairs turning grey. No one can restore the lost years to them. Changes are being made in the criminal justice delivery system from time to time to deal with the serious problems of delay and arrears and for quicker disposal of cases. Let us hope for a better result in the future with the extra efforts put by all concerned in that regard with active support and participation from the members of the Bar."
Case Title: Nitya @ Nityananda Behera & Madhia @ Madhaba Behera v. State of Orissa
Case No.: Criminal Appeal No. 195 of 1988
Quorum: Justice S. K. Sahoo
Appearance: Advocate Saktidhar Das (for the Appellants); Addl. Govt. Advocate Lalatendu Samantaray (for the respondent-state)
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