BISWANATH SASAMAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant Biswanath Sasamal along with coaccused Tiki @ Anwar Khan and Sk. Mustaqe Ali faced trial in the Court of learned Adhoc Addl. Sessions Judge, F.T.C. No. 3, Bhubaneswar in S.T. Case No.6/8/283 of 2009/03 and S.T. Case No.7/12/355 of 2009/04 for offences punishable under sections 364, 302, 394 and 201 read with section 34 Indian Penal Code for kidnapping and committing murder of one Prafulla Mohanty (hereafter "the deceased") on 09.10.2002, for committing robbery of the auto rickshaw of the informant Balaram Samantaray (P.W.1) and also for causing disappearance of evidence of offence in furtherance of common intention. The learned trial Court vide impugned judgment and order dated 27.04.2012 held the appellant and the co-accused persons guilty under sections 364, 302, 394, 201 read with section 34 of Indian Penal Code. Since the co-accused persons remained absent on the date of pronouncement of judgment, non-bailable warrant of arrest was issued against them. The appellant was however sentenced to undergo imprisonment for life under section 302 of Indian Penal Code, R.I. for ten years on each count under sections 364 and 394 of Indian Penal Code and R.I. for seven years under section 201 of Indian Penal Code and the sentences were directed to run concurrently.

(2.) The prosecution case, as per the F.I.R. lodged by Balaram Samantaray (P.W.1) on 10.10.2002 before Inspector-incharge, Khandagiri Police Station, Bhubaneswar was that he was the owner of one auto rickshaw bearing Registration No. OR-02- K-8224 which was plying from Khandagiri Auto rickshaw Stand and he had engaged the deceased as the driver of his auto rickshaw. On 09.10.2002 the informant returned home in the night and found that the auto rickshaw had not returned back and accordingly he searched for the auto rickshaw but could not locate the same. On 10.10.2002 the informant went to Khandagiri auto rickshaw stand and ascertained from one Ramesh Mohanty and Muna Samantaray that on the previous day night at about 9.30 p.m., two Muslim boys namely Tiki and Tuku along with another young man took the auto rickshaw of the deceased on hire towards Salia Sahi. The informant along with one Jitan Jena went towards Salia Sahi for the search of the deceased and auto rickshaw. As they could not locate the deceased and the auto rickshaw, suspecting that the deceased might have been kidnapped and the auto rickshaw might have been taken forcibly from him, the F.I.R. was lodged.

(3.) On receipt of the written report of P.W.1, Khandagiri P.S. Case No. 333 dated 10.10.2002 was registered under sections 363, 392 read with section 34 of Indian Penal Code against one Tiki, Tuku and another. P.W.16 Manoranjan Mohanty, Inspector-in-charge of Khandagiri Police Station himself took up investigation of the case. He examined the informant, visited the spot and sent V.H.F. message to all the Police Stations of the district intimating them regarding missing of the auto rickshaw and its driver (deceased). He received V.H.F. message from officer-in-charge of Chandaka Police Station that the missing auto rickshaw had been traced out and it had been detained in Mendhasala out post. P.W.16 proceeded to Mendhasala out post and found the auto rickshaw there and accordingly seized the same. The appellant had also been detained at the Police Station and basing on the confessional statement of the appellant, the dead body of the deceased was recovered. P.W.16 seized the auto rickshaw, sword and katari under seizure list Ext. 13 and the wearing apparels of the appellant under seizure list Ext.14. P.W.16 prepared the spot map and held inquest of the dead body under inquest report Ext.2. He also seized blood stained earth, sample earth, a pair of chappals lying at the spot under seizure list Ext.4. He also sent the dead body to Capital Hospital, Bhubaneswar for post mortem examination. The Investigating Officer searched for the absconding co-accused persons but could not locate them. The informant produced the original documents of the auto rickshaw bearing Registration No. OR-02-K-8224 along with the driving licence of the deceased which were seized under seizure list Ext.19. On 25.10.2002 the I.O. arrested the absconding accused Tiki @ Sk. Anwar Khan at Baramunda Bus Stand and arrested him. On the confessional statement of co-accused Tiki @ Sk. Anwar Khan on 26.10.2002, the Investigating Officer recovered one colour full pant and full shirt and seized the same under seizure list Ext.21. He made a prayer to S.D.J.M., Bhubaneswar for sending the seized materials for chemical examination to State F.S.L., Rasulgarh, Bhubaneswar. On completion of investigation, the Investigating Officer submitted charge sheet against the accused persons including the appellant under sections 364, 302, 394, 201 read with section 34 of Indian Penal Code showing accused Tuku @ Mustaqe Ali as absconder.