STATE OF ORISSA Vs. DURJO ALIAS DURYODHANA SANAMAJHI

JUDGEMENT

(1.) The State of Orissa has filed the present application under Section 482 Code of Criminal Procedure seeking to challenge the order dated 20.2.2010 passed by the learned Adhoc Addl. Sessions Judge, FTC-II, Phulbani in Sessions Trial No. 18 of 2009 (ST 3/09-FTC-II) with a prayer to allow P.Ws. 17 and 18 to be recalled for further examination in course of the trial.

(2.) The brief facts leading to the present case is that on 23.8.2008, an F.I.R. was filed by one Brahmachari Madhab Chaitanya regarding the murder of Swami Laxmanananda Saraswati. Investigation was taken up by the police and Final Form was filed against the opposite parties. The police placed reliance on the evidence recorded under Section 161 Code of Criminal Procedure of a number of witnesses including Mahasing Kanhar (P.W. 17) and Birendra Kanhar (P.W. 18), both the are residents of the district of Kandhamal and were cited to be examined as prosecution witnesses, since the investigation revealed that they had narrated crucial evidence leading to the homicidal death of Swami Laxmanananda as well as regarding the post-occurrence events pointing out to the involvement of the accused persons in the commission of the crime.

(3.) The investigation of the case had been handed over to the Superintendent of Police, CID-CB, Orissa, Cuttack vide P.S. Case No. 37 of 2008 was registered. On 13.11.2008, the statements of Mahasingh Kanhar (P.W. 17) and Birendra Kanhar (P.W. 18) were recorded under Section 161 Code of Criminal Procedure by the Investigating Officer. On 30.1.2009, chargesheet was filed against the accused-opposite parties, while keeping the investigation open under Section 173(8) Code of Criminal Procedure. On 17.3.2009, the Jnvestigating Officer in a related case recorded the statement of one Prabhat Panigrahi under Section 161 Code of Criminal Procedure and on 18/19.3.2009, the said Prabhat Panigrahi was killed. On 23.4.2009, the Investigating Officer recorded the statement of one Gopinath Lima under Section 161 Code of Criminal Procedure in a related case and on 4.8.2009 the said Gopinath Lima was killed. On 5.9.2009 both Mahasingh Kanhar and Birendra Kanhar were examined as P.Ws. 17 and 18 respectively and resiled from their statements recorded under Section 161 Code of Criminal Procedure.