SIKHAR JENA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Appellants 1 to 5 have been convicted under S. 302/149, Indian Penal Code (in short, the "IPC"), for having caused the death of deceased A. K. Kanungo and sentenced to undergo imprisonment for life. Those five appellants have also been convicted under S. 307/149, IPC for attempting to cause murder and sentenced to undergo rigorous imprisonment for seven years; under S. 338/149, IPC and sentenced to undergo rigorous imprisonment for two years; under S. 333/149, IPC, and sentenced to undergo rigorous imprisonment for five years and u/S. 9(b) of the Indian Explosives Act read with S. 149, IPC and sentenced to undergo rigorous imprisonment for two years. Appellants 1 to 3 have further been convicted u/S. 148, IPC and appellants 4 and 5 have been convicted under S. 147, IPC and sentenced to undergo rigorous imprisonment for three years and two years respectively. All the sentences have been directed to run concurrently. Appellant No. 6 has been convicted under S. 353, IPC and sentenced to undergo rigorous imprisonment for two years. Originally, 114 accused persons were prosecuted and faced trial under twentynine heads of charges. Out of the 114 accused persons, a few expired during the trial. Ultimately, apart from the six appellants, all other accused persons have been acquitted. In the absence of any appeal against acquittal at the instance of the State, the acquittal of all other accused persons has become final.

(2.) The occurrence took place on 19-3-1984 between 9-30 a.m. and 10.00 a.m. The FIR was drawn-up by the Circle Inspector of Police, Paradeep, purportedly on his own information on 19-3-1984 at 11-15 a.m. and was formally registered at the Paradeep Police Station at 12-15 p.m. on 19-3-1984. The informant (the Circle Inspector) who has been examined as P.W. 49 is admittedly not a witness to the occurrence, but it is evident from the FIR as well as his statement and statements of other witnesses that the FIR was drawn-up on the basis of narration given by some of the police officials and others. In the FIR itself, it was mentioned that the informant had enquired into the whole episode from the police personnel and outsiders. The prosecution case, as revealed from the FIR indicates that prior to 19-3-1984 there was some internal dispute between the groups of labourers working in the Paradeep Port area. It is further revealed that since tension was prevailing a section of the Orissa State Armed Police (OSAP) had been deployed since 14-3-1984 near Atharbank, popularly known as "Iron ore plot" to maintain law and order. In the FIR it was mentioned that in the previous night, that is to say, the night of 18-3-1984, a meeting had been held by Pandab Swain (acquitted), Bata Sasmal (appellant No. 2), Bishnu Pradhan (appellant No. 4), Sikhar Jena (appellant No. 1), Sankar Sasmal (appellant No. 3) and their supporters, wherein it was decided to finish Bhima Jena (one of the deceased). It was also stated that in the said meeting it was further decided to kill police personnel if they would come to the rescue of Bhima Jena, who was the leader of the rival group. In the FIR it was further recited that at about 9-00 a.m. on 19-3-1984, Havildar U.C. Jena (P.W. 2) had informed at the police station that Pandab Swain and his supporters were contemplating to attack the rival members and they were armed with weapons like lathis, bombs, farsas et cetera and had stacked brick-bats. It is further indicated that in view of such development, the Officer-in-Charge of Paradeep Police Station (Sub-Inspector A. K. Kanungo (deceased) proceeded towards the Iron ore plot along with A.S.Is. K.T. Rao (P.W. 3), S. K. Rout (P.W. 8), Hav. U. C. Jena (P.W. 2) and several other constables as well as personnel of APR Force in a Trekker being driven by D. K. Das (P.W. 9) to tackle the situation. After reaching near Iron ore plot, these police officials found Pandab Swain, appellants 1 to 4 and several others (named in the FIR) and five hundred others (not named in the FIR), all of whom had assembled near the area. It is further alleged that these people were armed with lathis, farsas, iron rods, et cetera and were shouting to murder Bhima Jena and his supporters and had already surrounded Bhima Jena. Seeing this, the police party rushed near the place of assembly, but the mob became furious and started brick-batting the police party. Immediately a group of the violent mob overturned the Trekker in which the police officials had gone and assaulted the driver and set fire to the Trekker. Sikhar Jena (appellant No. 1) and hundred others chased the OIC and party for assault and simultaneously set fire to the OSAP Tent. Lathi-charge effected by the police to scare the violent mob was not effective and the police party including the OSAP were over-powered by the turbulent mob and "police personnel including Bhima Jena were brutally assaulted by Maheswar Swain (acquitted), Bipin Dalei (not an accused), Gagan Lenka (acquitted) and others by iron rod and farsas. It is further recited that the O.I.C. having no other alternative ordered for firing and himself fired from his revolver in self-defence. The mob attacked the O.I.C. and the police personnel and snatched away the revolver from the O.I.C. and three rifles from OSAP Sepoys along with ammunition and themselves fired from it. Simultaneously certain members of the violent mob also inflicted fatal injuries on the head of the OIC and other police personnel. As a result, OIC, A. K. Kanungo, APR Mustaque Mohammed, APR Constable Niranjan Sahu, OSAP Sepoy No. 3, P. K. Mohapatra and leader of the opposite group Bhima Jena succumbed to the injuries instantaneously at the spot. Besides, A.S.Is. K. T. Rao, S. K. Rout, APR Constables, OSAP Sepoys and Hav. U.C. Jena have sustained severe injuries. The unruly mob have also set fire to the hutments of the rival labour group. Due to firing by the police some of the members of the mob have also received injuries. The Police Trekker number OSU 2847 and OSAP Tent have been completely gut by fire. The informant further recited that after having received the information regarding serious law and order situation involving loss of lives of police personnel, he himself rushed to the spot and after arrival found the mob escaping in different directions and he saw the dead bodies of the police personnel and Bhima Jena lying scattered on the road. On the aforesaid allegations, after completion of investigation, charge-sheet was submitted against all the accused persons who faced the trial and some others who had absconded.

(3.) The plea of the accused persons was one of denial. Accused Pandab Swain took the plea of alibi as he claimed that he was attending a meeting in the office of the Chairman of Paradeep Port Trust at the relevant time.