Orissa High Court
Dayanidhi Jena @ Nidhia vs State Of Odisha .... Opp. Party on 2 January, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4704 of 2024
Dayanidhi Jena @ Nidhia .... Petitioner
Jena
Mr. B.K. Ragada, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.N. Biswal, ASC
CORAM:
JUSTICE SIBO SANKAR MISHRA
Order ORDER
No. 02.01.2025
01. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical Mode).
2. Heard Mr. B.K. Ragada, learned counsel for the
petitioner and Mr. S.N. Biswal, learned Additional
Standing Counsel for the State.
3. The petitioner is one of the accused in connection
with Balipatna P.S. Case No.10 of 2013 registered
under Sections 147/148/341/294/307/302/427/149
of the IPC. After investigation, the preliminary charge
sheets had been submitted on 16.05.2013, 06.10.2013
& 21.10.2013 qua the other accused persons. Final
charge sheet in this case has been submitted on
28.10.2017 under Sections 147/148/307/302/120-
B/149 of the IPC showing the present petitioner as an
amit
absconder. Subsequent thereto, on 15.12.2017, the
learned Court below has taken cognizance of offences
as mentioned above against the petitioner. The
petitioner is assailing the said cognizance order on the
ground that three of the co-accused persons, who had
faced trial, have already been acquitted by the learned
Additional Sessions Judge, Bhubaneswar in S.T. Case
No.109 of 2014 vide judgment dated 13.07.2016.
4. Mr. Ragada, learned counsel for the petitioner
relied upon paragraphs-30, 31 & 32 of the judgment
dated 13.07.2016 passed by the learned Additional
Sessions Judge, Bhubaneswar, which read as under:
"30. In view of such quality of evidence and
procedure adopted by the Investigating Officer it is to
be tested if the two accused persons facing the trial
conspired with the other accused persons and formed
unlawful assembly intending to commit murder of
Kartika on dtd. 21.1.13 at village Phulapala. During
scrutiny of evidence in connection to the offence U/s.
149 and 120(B) of the IPC I have already stated
above that prosecution miserably failed to
substantiate regarding any criminal conspiracy or
common intention for commission of the crime.
Accordingly, the accused persons are found not guilty
for the offence U/s.147, 149 or 120(B) IPC. There is
also no acceptable evidence that these two accused
persons were armed with any deadly weapon and
were member of unlawful assembly in prosecution of
their common object of murder, for which they are not
found guilty for the offence U/s. 148149 and 120(B)
IPC.
31. As regards the offence of murder it is already
observed above that prosecution failed to prove the
offence U/s. 302 IPC by adducing inconsistent
evidence of the villagers or through the evidence U/s.
27 Evidence Act. The evidence of the chance
witnesses also remain doubtful particularly the
conduct of the witnesses did not allow to believe that
they witnessed the occurrence and deposed reliable
3efvidnece in the court. Accordingly, prosecution also
failed to prove the offence U/s.302, 149, 120(B) IPC.
As no conclusive evidence against the accused
persons is available on record that these two accused
persons in prosecution of their common object did any
act for committing murder or having knowledge that
such act might cause death, the accused persons are
also entitled for acquittal for the offence U/s.307, 149
and 120(B) IPC.
32. In the result as per the above discussion and
finding, the accused persons are found not guilty for
the offences U/s. 147, 148, 307, 302, 149 and 120(B)
IPC and they are acquitted therefrom in accordance
with provision u/s.325(1) of Code of Criminal
Procedure. Both the accuse persons all through the
trial are in custody hence they be set at liberty
forthwith unless they are wanted in other case."
5. Mr. Ragada contended that insofar as the co-
accused persons are concerned, the prosecution could
not prove the case either under Section 149 or Section
120(B) of the IPC. Since the present petitioner has
been implicated under the aid of Section 149 of the
IPC and for the charges under Section 120(B) read
with Section 302 of the IPC, subjecting the petitioner
to trial is destine to be a futile exercise. Therefore, the
petitioner seeks indulgence of this Court to quash the
prosecution against him.
6. I am not inclined to entertain this petition at this
belated stage. Needless to say that the acquittal order
passed by the learned Additional Sessions Judge,
Bhubaneswar qua the accused persons those who
faced the trial is the culmination of appreciation of
evidences on record vis-à-vis those accused persons.
At best the observation made by the learned Court
below while recording acquittal may have persuasive
value for the purpose of grant of bail.
7. In view of the aforementioned, the petitioner may
be entitled for grant of bail, but inevitable on his part
to face the trial. Therefore, I am not inclined to
entertain this petition and direct the petitioner to
surrender/appear before the learned Court below on
or before 15.01.2025 and face the trial. The petitioner
may apply for grant of regular bail before the court
below. If any such application is moved by the
petitioner the same shall be decided on its merit
taking into consideration the observation made by the
learned trial Court in its judgment dated 13.07.2016.
Since the present case pertaining to year 2013, it is
expected that the learned trial Court would do well to
see that the trial be concluded as expeditiously as
possible.
8. With this observation, the CRLMC is disposed of.
(S.S. Mishra)
Judge
Location: HIGH COURT OF ORISSA, CUTTACK
