RAJKISHORE SINGH Vs. STATE OF ORISSA

JUDGEMENT

(1.) This application under Section 482, Cr.P.C. has been filed challenging the order dated 3-10-1993 passed by the learned S.D.J.M., Jagatsinghpur in G.R. Case No. 497 of 1993 taking cognizance of offences under Sections 302/201/109/34 of the Penal Code.

(2.) As it appears from the record an F.I.R. was lodged alleging therein that deceased Lingaraj Moharana was the eldest son of accused Banchhanidhi Moharana and elder brother of accused Kedarnath Moharana. He was brought up by his paternal uncle and got the properties of the paternal uncle. It is also alleged that the accused persons quarrelled with regard to the properties and assaulted the deceased. It is also alleged that once the above two accused persons tried to set fire to the wife of the deceased by pouring kerosene and because of the above reasons, she was compelled to leave the matrimonial house and resided with her parents at Manpur. On the date of occurrence when the deceased returned home after attending a dinner hosted by a co-villager, both the aforesaid accused persons killed him and hurriedly cremated the dead body in a paddy field situated near the backyard of their house. It is also alleged that the present petitioners assisted in cremating the dead body.

(3.) Out of the four accused persons, Banchhanidhi Moharana and Kedarnath Moharana were put to trial for commission of offences u/Ss. 302/201/109 and 34 of the Penal Code whereas the present petitioners had not faced the trial as they did not appear before the Court. The aforesaid two co-accused persons were acquitted by the learned Second Additional Sessions Judge, Cuttack vide judgment dated 27-1-1995. This application has been filed for quashing the order taking cognizance on the ground that the principal accused persons against whom there was allegation of causing death of the deceased, have been acquitted and that against the present petitioners material available on record is that they assisted in cremating the dead body and therefore cannot stand and, consequently, the proceeding should be quashed. Though this Court has held that acquittal of co-accused persons shall not be a ground for quashing of proceeding and/or an order taking cognizance in respect of the absconding co-accused persons, on perusal of the judgment in the said Sessions Trial where the co-accused persons have faced trial and got acquitted, I am of the view that this case stands on a different footing. The learned Second Addl. Sessions Judge in paragraph-7 of his judgment has held that the prosecution has not led any evidence to show if there was any injury or mark of violence on the dead body at the time of cremation. The I.O. also did not mark any sign of violence or struggle in the house of the accused or in the vicinity. No common metallic poison was detected on chemical examination of the charred bone of the deceased seized from the place of cremation by the I.O. There being no conclusive material pointing at guilt of the accused, the learned Second Additional Sessions Judge acquitted the co-accused persons. In view of the findings of the trial Court in the aforesaid judgment that the offence under Section 302/34 of the Penal Code has not been made out and that the prosecution failed to prove the said charge, I am of the view that the order taking cognizance under Section 201 of the Penal Code cannot also be sustained. So far as the present petitioners are concerned, the only allegation in the entire case diary, as it appears, is that they were involved in cremation of the dead body. There is absolutely no allegation whatsoever to involve the present petitioners participating in the alleged offence of commission of murder. In any event, the learned Second Addl. Sessions Judge having found that the prosecution failed to prove the charge of murder under Section 302 of the Penal Code as well as Section 201 of the Penal Code against the co-accused persons. I, therefore, do not think that any truthful purpose will be served by directing the present petitioners to face trial.