Orissa High Court
This Matter Is Taken Up Through ... vs Unknown on 28 January, 2021
CRLA No.546 of 2013
04. 28.01.2021 Misc. Case No.1476 of 2013
This matter is taken up through Video conferencing
mode.
Heard Mr. P.C. Chhinchani, learned counsel
appearing for the sole appellant-Udaya @ Pulari Ramarao @
Anjuna @ Shyam. We have also heard Sk. Zafrulla, learned
Additional Standing Counsel.
This is an application under Section 389 of Cr.P.C.
filed by the appellant for suspension of sentence and grant of
bail upon appeal.
In this case, the appellant has been convicted for the
offence under Section 147 of the IPC and sentenced to undergo
imprisonment for two years and to pay a fine of Rs.1,000/-, in
default to undergo imprisonment for three months, to undergo
imprisonment for two years and to pay a fine of Rs.1,000/-, in
default to rigorous imprisonment for three months for the
offence under Section 148 of the IPC, to undergo imprisonment
for five years and to pay a fine of Rs.6,000/-, in default to
rigorous imprisonment for six months for the offence under
Section 449/149 of the IPC, to undergo imprisonment for two
years and to pay a fine of Rs.1,000/-, in default to rigorous
imprisonment for three months for the offence under Section
25(1-B) (a) of the Arms Act, to undergo imprisonment for three
years and to pay a fine of Rs.1,000/-, in default to rigorous
imprisonment for three months for the offence under Section
27(1) of the Arms Act and imprisonment for life for the offence
under Section 302/149 of the IPC, vide the judgment of
conviction and order of sentence dated 01.10.2013 passed by
the learned Additional Sessions Judge, Phulbani in Sessions
Trial Case No.19/168 of 2013-2011.
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In course of hearing, learned counsel appearing
for the appellant submits that the four circumstances, which
have been accepted by the learned Additional Sessions Judge,
Phulbani, which have been established beyond reasonable
doubt are in fact not established beyond reasonable doubt. It is
not disputed at the stage that the learned Additional Sessions,
Phulbani has relied upon the component of evidences like
extra-judicial confession made by the appellant. seizure of the
weapon of offence, a pistol from his possession, seizure of
cartridges from the spot and the ballistic expert's report. In this
case, five persons were done to death by unknown persons and
this appellant had been arrested. It is also stated that he
belongs to the left-wing terrorist group, commonly known as
Maoist which operates in the State of Orissa as well as Andhra
Pradesh.
Learned counsel for the appellant very emphatically
argued that possession of the arm i.e. pistol has not been
successfully established in this case because the pistol was
seized from him in a different case. From that Investigating
Officer, the Investigating Officer of the present case seized the
pistol. However, in the judgment, the learned Additional
Sessions Judge, Phulbani has reflected at page 24 that
prosecution was able to establish regarding theft of 9 mm pistol
bearing No.PTS12-16339274 vide Ext.11. He further observes
that the evidence of the investigating officer indicates that the
pistol was seized from the possession of Udaya vide Ext.18. In
that view of the matter, we are of the opinion that at this stage
while considering the application for bail for suspension of
sentence, we cannot come to conclusion that the seizure of
pistol from the possession of the appellant has not been
established in this case. Learned counsel for the appellant
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relied upon certain judgments, xerox copy of the judgment
filed in the Court. The first things, the judgment passed by the
learned Adhoc Additional Sessions Judge (F.T.C.), Gunupur in
Criminal Trial No.38 of 2009 wherein the appellant was found
not guilty of the offence of criminal conspiracy and possession
of Arms Act etc. The 2nd judgment is rendered by the learned
Additional Sessions Judge, Nayagarh in S.T. No.76/97 of 2014,
wherein the appellant was found not guilty of waging war
against the State and committing murder and other offences.
However, these judgments, as far as the findings recorded
therein are not relevant in view of provision of Sections 40, 41,
42 and 43 of the Indian Evidence Act. In that view of the
matter, in view of the fact that the appellant is a suspected left-
wing terrorist, who has been convicted for committing murder
of five persons including Swami Laxmananda Saraswati having
number of criminal cases against him, we are not inclined to
suspend the sentence.
Hence, the application for bail of appellant under
Section 389 of Cr.P.C is rejected.
The Misc. Case is disposed of accordingly.
As restrictions due to COVID-19 are continuing,
learned counsel for both the parties may utilize the soft copy of
this order available in the High Court's website or print out
thereof at par with certified copies in the manner prescribed,
vide Court's Notice No.4587, dated 25.03.2020.
.............................
S. K. Mishra, J.
TUDU
................................
Savitri Ratho, J.
CRLA No.546 of 2013
05. 28.01.2021 Since, the appellant is in custody for about 10 years,
Registry is directed to prepare the paper books as early as
possible, so that the matter can be taken up for final disposal.
Matter be listed for final hearing on 25th February,
2021.
.............................
S. K. Mishra, J.
................................
Savitri Ratho, J.
