STATE OF ORISSA Vs. TRINATH DASH

JUDGEMENT

(1.) THE appellants in Criminal Appeals Nos. 105, 106 and 112 of 1977, who figure as respondents in Government Appeal No. 101 of 1977, while functioning as police personnel attached to the Nuagaon Police Station in the district of Puri, stood charged Under Sections 302, 342, 201, 203, 331 and 323, all read with Section 34 of the Indian Penal Code, for having wrongfully confined Muli Naik (hereinafter referred to as the 'deceased') a resident of village Mahitama, for committing murder of the deceased, causing evidence of the offence of murder to disappear by hanging the dead body of the murdered deceased to a tree in order to screen themselves, from legal punishment, giving false information that the deceased had committed suicide, causing grievous hurt to the deceased for the purpose of extorting from him a confessional statement in a case Under Sections 457 and 380 of the Indian Penal Code (hereinafter called the Code) in which the deceased and Magi Naik (P.W, 5) were the suspects and causing hurt to Magi Naik while he was in the Police lock -up.

(2.) WE would now proceed to state the case of the prosecution. In July, 1975, the accused Trinath Dash, accused Brundaban Swain and the accused Kalandi Charan Patro were functioning as Officer -in -Charge, Assistant Sub -Inspector and Write Constable respectively and the remaining accused persons were functioning as Constables being attached to the Nuagaon Police Station in the district of Puri, In a case of theft committed on 26 -7 -1975 at Mahitama in the house of Shankar Naik (P.W. 1) reported by him verbally to the Officer -in -Charge, the deceased and Magi Naik (P.W. 5) were the suspects. Under the direction of the Officer -in -Charge Trinath Dash, Sahadev Naik (P.W. 2, the Grama Rakshi of village Mahitama, of which village the two suspects were residents, produced Magi Naik (P.W. 5) and the deceased before the Officer -in -Charge Trinath Dash on 27 -7 -1975 and after their personal search, the suspects were kept confined in the Police lock -up although they had not been arrested. Magi Naik (P.W. 5) and the deceased were tortured at the police station with a view to obtaining confessional statements from them. On 28 -7 -1975, P.W. 5 and the deceased were asked to pay Rs. 400. but as they refused, they were assaulted by means of fist blows, slaps, sticks and boots by the accused Trinath Dash, Brundaban Swain, Kalandi Charan Patra, Madhab Sahu and Agadhu Champati for which P.W. 5 sustained injuries and the deceased became unconscious. On 29 -7 -1975, P.W. 5 was forwarded to the court when the deceased had still been kept in the police lock -up. On 29 -7 -1975, during the night time, the deceased was further assaulted inside the police station. On the day following, i.e., on 30 -7 -1975, no one was allowed to enter the police station. Even the sweepress attached to the police station and the Grama Rakshis who had come on duty were not allowed to go inside the police station. PW 4 Annapurna Dei (the wife of the deceased) and PW 12 Bhagaban Naik, the brother of the deceased, had come with food for Muli Naik, but neither of them was allowed to meet Muli or give food to him. During the night of the 3Qth/31'st July, 1975, the accused persons, with the help of Kansa Naik (PW 13) and Rama Naik (PW 14, two Grama Rakshis, who had come on duty on 29 -7 -1975 and had been asked to wait, brought the dead body of Muli Naik from inside the male Hazat and kept on a bamboo Tati on which two sacks had been spread and the dead body was tied to the bamboo Tati by means of ropes. The dead body was carried from the police station to a mango grove near village Mudrang falling on the way to village Sikargochha and was hung to a mango tree by means of a Gamuchha (napkin) tied to its neck to give a colour of suicide. The accused Trinath Dash told all of them not to disclose as to what had happened. He asked the Grama Rakshi Ram Naik (PW 14) to go to Sikargochha in the morning to the house of his relative and on return from that, village, lodge a report that a dead body was hanging from a mango tree. Although no such report was made by Rama Naik, the accused Trinath Dash made out a case that such a report had been lodged and he (Trinath Dash) proceeded towards Sikargochha for investigation. At the spot, the accused Trinath Dash held inquest over the dead body as per the inquest report (Ext. 2/2) and sent the dead body to Nuagaon for postmortem examination without informing any of the relations of the deceased about his death. Before dissection of the dead body at the post -mortem house at Nuagaon, Bhagaban Naik (PW 12) complained before the doctor (PW 30) that the deceased had died owing to assault by the police people. PW 30 held postmortem examination as per Ext. 10, the post -mortem report. According to the Doctor, the death of the deceased could be homicidal and he might have been strangulated when he was in a state of unconsciousness. PW 12 reported to the Subdivisional Police Officer, Nayagarh, regarding the homicidal nature of the death of the deceased on account of assault by the police people and this police officer enquired into the matter and suspected foul play by the police staff. Later the Circle Inspector of Khandapara (PW 32) took up the enquiry, drew up the formal first information report (Ext. 24) having found a prima facie case under Sees. 302, 342 and 201 of the Code against the accused persons and a case was registered against them. In the course of investigation, Magi Naik (PW 5) and the accused Agadhu Champati were examined by the Doctor for having injuries on their persons. First PW 32 and then PW 33, the Inspector of Police of the Crime Branch, took charge of the investigation in the course of which a number of witnesses were examined and a number of documents and articles in eluding the Dhoti of Magi Naik (PW 5) suspected to have stains of blood were seized. Steps were taken for the identification of the culprits. On the completion of investigation, PW 33 submitted a charge -sheet against the accused persons.

(3.) AT the trial, the prosecution examined thirty -three witnesses to bring home the charges. No witness had been examined on behalf of the defence. Both the sides placed reliance on a large number of documents. On a consideration of the oral and documentary evidence, the learned Additional Sessions Judge found that the charges against the accused persons Under Sections 302, 331 and 323 read with Section 34 of the Code, the charge Under Section 203 read with Section 34 of the Code against the accused persons other than the accused Trinath Dash and Brundaban Swain and the charge Under Section 342 read with Section 34 of the Code against the accused persons other than the accused Trinath Dash had not been established and they were accordingly acquitted of those charges. All the accused persons were convicted Under Section 201 of the Code and the accused Trinath Dash and Brundaban Swain were sentenced thereunder to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 2,000/ - and in default of payment thereof, to undergo rigorous imprisonment for a further period of nine months and the other accused persons were sentenced thereunder to undergo rigorous imprisonment for a period of one year and six months and to pay a fine of Rupees 500/ - and in default of payment thereof, to undergo rigorous imprisonment for a further period of six months. Accused Trinath Dash and Brundaban Swain were convicted Under Section 203 of the Code, but no separate sentence was passed against them thereunder. The accused Trinath Dash was convicted Under Section 342 of the Code and sentenced thereunder to pay a fine of Rs. 500/ - and in default of payment thereof, to undergo rigorous imprisonment for a period of three months.