Kala Ram vs State Of Orissa .... Opp. Party
2025 Latest Caselaw 5845 Ori

Orissa High Court

Kala Ram vs State Of Orissa .... Opp. Party on 30 May, 2025

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                        CRL REV No. 138 of 2006

            From the judgment and order dated 16.02.2006 passed by the learned
            Addl. Sessions Judge, Rayagada in Criminal Appeal No.61 of 2001
            confirming the judgment and order dated 29.11.2001 passed by the
            learned Asst. Sessions Judge-cum-C.J.M., Rayagda in Sessions Case
            No.14 of 2001.

                    1.Kala Ram
                    2.Sukanta Singh @ Landa @ Nanda @
                    Sukant Kumar Singh                        .... Petitioners

                                                -versus-

                    State of Orissa                           .... Opp. Party


            Advocates appeared in this case through Hybrid Mode :


                    For Petitioners :                Mr. B.S.Das Parida, Advocate
                                                     on behalf of Mr.D.P.Dhal,
                                                     Senior Advocate

                    For Opp. Party :                 Mr. M.R.Mishra, ASC


                    CORAM:
                       HON'BLE MISS JUSTICE SAVITRI RATHO

            ....................................................................................

Date of Judgment : 30.05.2025 ................................................................................... Savitri Ratho, J. This revision has been filed challenging the judgment

and order of conviction dated 29.11.2001 passed by the learned Asst.

Sessions Judge-cum-C.J.M., Rayagada in Sessions Case No.14 of

2001 convicting the petitioners for commission of offences

punishable under Sections 399/402 of IPC and sentencing them to

undergo R.I. for seven years and to pay a fine of Rs.3,000/- each, in

default of payment to undergo R.I. for three months each for the

offence under Section 399 of IPC and to undergo R.I. for a period of

five years and to pay a fine of Rs.2,000/- each, in default of payment

to undergo R.I. for two months each under Section 402 of IPC with a

further direction that the substantive sentences are to run

concurrently, and the judgment and order dated 16.02.2006 by the

learned Addl. Sessions Judge, Rayagada in Criminal Appeal No.61

of 2001 confirming the conviction and sentence of the petitioners

passed by the learned trial Court.

PROSECUTION CASE

2. The prosecution allegation in brief is that on 13/14.08.2000

night while the informant, S.I. of police Rayagada P.S. along with

A.S.I. Dileswar Das, Constable 424-Santosh Kumar Deo, Constable-

44-Apartinath Jena and Constable-391-Brundaban Dora were

performing anti dacoity patrolling, they received reliable information

that a group of persons have assembled in a half constructed building

located on the eastern side of Jagannath complex, New Colony,

Rayagada and were making preparation to commit dacoity. They

rushed to the spot with two local witnesses, namely, Jagannath Jena

(P.W.1) and Basanta Jena (P.W.5) of Rayagada town and found a

group of persons were sitting inside the half constructed building. It

was then 1.15 a.m. The place of assembly of the accused persons is a

secluded place located on the eastern side of Jagannath complex,

which is situated in new colony area of Rayagada town. Seeing the

Police, the persons started running towards the nearby bushes. The

Police chased them and could apprehend two accused persons. The

other three managed to escape into the bushes in the dark. The two

accused persons gave their identity and confessed that they had

assembled and were making preparation to commit dacoity in the

house of one Mr. Sharma, Bank cashier located in New Colony,

Rayagada. Thereafter, the informant-S.I., Mr. Mund took personal

search of these two accused persons and recovered red chilli powder

packets, knife, sword, a toy pistol, which were concealed by them and

were kept in their pant pockets and waist under the shirts worn by

them. He recovered from their possession a bottle containing petrol,

11 pieces of tube light glass pieces, some iron nails and cotton, which

were kept for using for preparation of petrol bomb. The informant

seized those articles from them in presence of the witnesses. The two

accused persons were brought to the police station and the other

accused persons could not be apprehended P.W.2, the S.I., K.C.

Mund, lodged a written report at the Police Station on 14.8.2000 at

2.30 a.m. before the IIC of Rayagada P.S. and produced the accused

persons before him.

DEFENCE PLEA

3. The defence plea is a complete denial of the occurrence. In

their statements recorded under Section-313 of the Cr.P.C., they took

the plea that they were selling fruits in the market and on account of

rush near their shops, police assaulted them and when they protested,

a false case was started against them.

WITNESSES

4. The prosecution has examined 10 witnesses while the defence

did not examine any witness.

P.W.1-Jagannath Jena is an independent witness who had

accompanied the informant and other police staffs to the place of

occurrence in the relevant night and witness to seizure but did not

support the prosecution case. P.W.2-Kishore Chandra Mund is the

then S.I. of police, Rayagada Police Station and informant. P.W.3-

Dileswar Das is the ASI of Police, Rayagada P.S. P.W.4 Aparti Nath

Jena is the police constable who had accompanied the informant to

the spot. P.W.5-Basant Jena is an independent witness to seizure but

did not support the prosecution case. P.W.6-S.V.T.N. Sharma and

P.W.7-Visalaxmi are the persons of LIC Colony Rayagada town are

the independent witnesses. P.W.8-Brundaban Dora and P.W.9-

Santosh Kumar Deo are the police constables who had accompanied

the informant to the spot. P.W.10-Kishore Kumar Dangayat is the IIC

of Rayagada P.S. who is the I.O. of this case.

P.W.1 and P.W 5 have stated that on 14.08.2000, they were

called in the night by the police and police seized one packet and they

were asked to sign on the seizure list which they did. They denied the

other suggestions given to them.

P.W.2, the informant has proved the FIR, Ext 4. He has stated

that on 13.8.2000 he was S.I. of Police at Rayagada police station. On

that day as per the direction of the I.I.C. along with P.W.3 Dileswar

Das, the then A.S.I. of Police of Rayagada police station. P.W.4

constable No.44-A.N.Jena, P.W.8 constable No.391-B.B.Dora and

P.W.9 constable No.424-S.K.Deo was performing anti dacoity

patrolling at Rayagada town. At 12:50 A.M. he received reliable

information that a group of persons had assembled in a half

constructed house near eastern side of Jagannath complex at new

colony, Rayagada and making preparation for committing dacoity.

He arranged two local witnesses P.W.1 Jagannath Jena and P.W.5

Basanta Jena and proceeded along with his staff to the spot of

occurrence. At the spot, they found that five persons sitting inside the

half constructed house talking something. At about 1:15 A.M., they

went to them but seeing the police the culprits started running. They

chased them and apprehended two of them while three escaped in the

dark. The two accused persons gave their identity as Kala Ram and

Sukanta Singh @ Landa. On personal search in presence of witnesses,

he recovered one chilli powder packet from the right side Pant Pocket

of accused Kala Ram and a knife, which was concealed inside his

shirt. He prepared seizure list Ext. 1/1 in presence of the witnesses

and his signature as Ext. 1/2. He made personal search of accused

Sukanta Singh @ Landa and recovered one red chilli powder packet

from his right side pant pocket and a toy pistol from his waist and a

small sword, which was kept inside his shirt at the back. He seized the

said articles and prepared the seizure list. He proved the same and

marked as Ext.2/1 and his signature therein marked as Ext. 2/2. He

took the two accused persons to the spot of occurrence i.e. inside that

half constructed house and found that they had kept some iron nails,

some tube pieces, some petrol in a bottle, some glass pieces and

cotton pieces for preparation of petrol bomb. The accused persons

admitted that they had assembled there for committing dacoity in the

house of one Mr. Sharma of Rayagada town. He seized the articles in

presence of the witnesses and prepared seizure list at the spot. He has

proved the seizure list Ext. 3/1 and his signature therein marked as

Ext. 3/2. He brought the accused persons to the I.I.C. of Rayagada

police station and lodged written report. He has proved the F.I.R.

Ext.4 and his signature on the report Ext. 4/1. He has proved the

articles, which have been seized, by identifying them in the court.

M.O.-I is the knife, which was seized from accused Kala Ram. M.O.-

II is the sword, which was recovered and seized from accused

Sukanta Singh. M.O.-III is the toy pistol, which was recovered and

seized from accused Sukanta Singh. MO.-IV is the bottle containing

some petrol, which was also seized by him from the spot of

occurrence. M.O.-V is some pieces of rubber tube, glass pieces, chilli

powder packet and iron nails with cotton pieces.

The cashier of Indian Overseas Bank who has been examined

as P.W 6 has stated that prior to the night of occurrence some persons

were ringing his calling bell and going away on seeing the police

patrolling party. His wife, P.W.7 has stated that prior to 12.08.2000,

some persons were ringing their bell and trying to break open the door

but on hearing the sound of police patrol jeep, they were going away.

EXHIBITS and M.Os.

5. The prosecution exhibited five exhibits. Ext.1/1 is the seizure

list. Ext 2/1 seizure list. Ext 3/1 is another seizure list. Ext.4 is the

F.I.R and Ext. 5 is the Spot Map.

M.O.I is the knife, M.O. II is the sword, M.O.III is the pistol,

M.O. IV is the bottle containing petrol, M.O.V are the rubber tube,

cotton, glass pieces and chilli packets.

JUDGMENT OF THE LEARNED TRIAL COURT

6. The learned trial court framed two issues for determination,

namely:

i) Whether these accused persons were assembled along with other three persons, (who fled away from the spot), in a half constructed building near Jagannath complex of new colony, Rayagada for the purpose of committing dacoity?

ii) Whether these accused persons along with other three persons, who fled away from the spot, were making preparation for committing dacoity in the said half constructed building situated at New Colony, Rayagada near Jagannath temple?

7. The findings of the learned trial court are as under :

i) Excepting two independent witnesses - P.W.1-Jagannath Jena

and P.W.5-Basanta Jena, all other prosecution witnesses have

supported the case of the prosecution and have also corroborated the

testimony of the informant-P.W. 2.

ii) P.W. 2, the informant has specifically stated substantiating the

facts in the F.I.R. which has been proved by him and marked as Ext.4.

iii) P.Ws. 4, 8 and 9 had accompanied P.W. 2 to the spot of

occurrence and are eye witnesses to the occurrence and have fully

corroborated the testimony of P.W. 2.

iv) They have stated that five persons were sitting and discussing

something and seeing the police, they ran away but two were caught.

v) The two accused persons were searched and chili powder

packet, toy pistol, sword and knife were covered from them.

vi) From inside the house where they were sitting, some petrol

kept in a bottle, iron nails, cotton pieces, broken glass, small pieces of

rubber tube were recovered which are used for preparing bomb.

vii) Evidence of P.Ws. 6 and 7 seems to be probable in view of

evidence of P.W. 2 that prior to lodging of FIR, the accused admitted

that they were preparing themselves to commit dacoity in house of

P.W. 6.

viii) P.W. 10, the I.O has proved the spot map, Ext. 5.

ix) The accused persons were sitting in the dark place making

preparation of petrol bomb.

x) Dacoits are usually using petrol bomb while committing

dacoity.

xi) Evidence of P.Ws. 6 and 7 corroborates the testimony of the

informant P.W.2 that accused were making preparation for

committing dacoity in house of P.W.6.

xii) The admission of accused before the informant was made

before the filing of FIR and hence will not be hit by Section 25 of the

Indian Evidence Act. It is admissible under Section 21 of the

Evidence Act as decided in the case of Bijaya Kumar Swain vs State

of Orissa : 1992 OCR 289.

xiii) Prosecution has been able to prove its case beyond reasonable

doubt.

xiv) In view of the nature of the offence, benefit under the Probation

of Offenders Act should not be given to the petitioners.

JUDGMENT OF THE LEARNED APPELLATE COURT

8. The learned appellate Court confirmed the finding of the

learned trial court that the admissions made by the accused before the

police were made before lodging of FIR and hence were admissible

under Section 21 of the Evidence Act. It also held that the police

officers had no reason to falsely implicate the accused persons and

mere suggestions given to them was not sufficient to prove the

defence plea. It confirmed the conviction and sentence of the

petitioners and dismissed the appeal.

SUBMISSIONS

9. Mr. B.S. Das Parida, learned counsel for the petitioner has

submitted that in absence of five persons, these two petitioners cannot

be convicted under Sections 399 and 402 of IPC. It is also submitted

that merely showing that five persons including the appellants were

found in a place quite close to the residential locality of the town at

1.00 A.M. cannot establish that they had assembled for the purpose of

committing dacoity or making preparation to that effect and therefore,

the learned court below has committed an error by convicting them

under Sections 399 and 402 of IPC. He has also submitted that the

alleged admission of the petitioners before the police that they had

assembled to commit dacoity and were making preparations is not

admissible against them as because even though FIR was registered

later but they were had been apprehended by the police while the

other co-accused allegedly escaped.

10. Mr. M.R. Mishra, learned Addl. Standing Counsel

submitted that basing on the statement of the witnesses and material

facts, the learned trial Court has rightly passed the impugned order

and the same has been rightly affirmed by the learned appellate Court

which may not be interfered with at this stage.

STATUTORY PROVISIONS

11. Sections 21 and 25 of the Indian Evidence Act, which relevant

are extracted below.

"21. Proof of admissions against persons making them, and by or on their behalf.-

Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:-

(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32. (2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. (3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission."

"25. Confession to police-officer not to be proved.--No confession made to a police-officer, shall be proved as against a person accused of any offence."

JUDICIAL PRONOUNCEMENTS

12. In the case of Bijaya Kumar Swain ( supra) the accused had

earlier reported the matter in the police station and a station diary

entry had been made. This had been proved by the I.O. and had been

marked as an exhibit and the same was held to be an admission of the

accused relevant under Section 21 of the Indian Evidence Act .

In the case of Chaturi Yadav vs State of Bihar : (1979) 3

SCC 430, the Supreme Court in similar circumstances has held as

under : -

"The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 A.M. does not, by itself, prove the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous

place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of, by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Section 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court."

In the case of Aghnoo Nagesia vs State of Bihar : 1965 SCC

OnLine SC 109, the appellant had murdered his aunt, her daughter,

her son-in-law and her grandson. He then went to the police station and

lodged the FIR, stating how he had murdered them, where he had

hidden their bodies, and with which weapon he had murdered them.

Relying on his confessional statements, the trial Court convicted him

under Section 302 of the I.P.C. The High Court upheld the conviction.

By special leave, he appealed to the Supreme Court. The Supreme

Court held that the confession given in the FIR by the appellant to the

police officer is barred by Section 25 of the Indian Evidence Act and

cannot be admitted as evidence. The relevant portions of the decision

are extracted below :-

"For the purposes of the case, we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the tan,-', the discovery of the dead bodies and the tangi in consequence of the information, the discovery of a blood-stained chadar from the appellant's house and the fact that he had gone to Dungi Jharan Hills on the morning of August 11, 1963. This evidence is not sufficient to convict the appellant of the offenses under s. 302 of the Indian Penal Code.

In the result, the appeal is allowed, the conviction and sentence passed by the Courts below are set aside, and the appellant is directed to be set at liberty forthwith. Appeal allowed."

ANALYSIS AND CONCLUSION

13. I have gone through the judgments of both the courts below

and perused the evidence of the witnesses and the exhibits.

14. In criminal jurisprudence, it is the settled principle of law

that the evidence on record must conclusively point to the guilt of the

accused beyond reasonable doubt and in case in absence of

independent corroboration, if the evidence of official witnesses does

not inspire confidence, then the charges framed against the accused

must fail and the accused will be entitled for acquittal.

15. The two independent witnesses have not supported the

prosecution case other than saying that they have signed on a packet

and on a document. But merely because the independent witnesses

have not supported the prosecution case cannot be a ground to

disbelieve the prosecution case. But the evidence of the official

witnesses has to be carefully scrutinized.

16. In the present case, scrutiny of the evidence of the official

witnesses will not be required in view of the error committed by the

both the Courts below who have placed reliance on the purported

"admission" of the petitioners before P.W.2 the informant who is a

police officer.

17. The facts of the case of Bijaya Kumar Swain ( supra) and

this case are total different and the ratio of that decision has been

incorrectly utilised in this case by the learned trial court. The so called

"admission" of the accused persons in this case were in the nature of a

confession before the police and squarely hit by Section 25 of the

Indian Evidence Act. The petitioners were in actual custody of the

police as they had tried to run away but had been caught and detailed

by the police.

18. For proving an "admission", the admission has to be marked

as an exhibit and confronted to the maker. In the facts of the present

case the admission of the petitioners was a confession before the

police and hence question of proving it did not arise.

19. P.W.6 (the cashier) and P.W.7 (his wife) have stated that

prior to 12.08.2000 (the date of occurrence) some persons were

pressing their calling bell and trying to break open their door, but

going away on seeing the police patrol Party. But these two witnesses

have neither reported the matter to the police, nor claimed to have

seen the petitioners or identified them, hence their evidence cannot be

held to implicate the petitioners.

20. Another feature of the prosecution case which raises a doubt

in the mind of the Court is regarding the circumstances of seizure. No

charge-sheet has been filed against the petitioners under the Arms Act

nor has any charge been framed against them for committing any

offence under the Arms Act. This was imperative as it is the case of

the prosecution that a sword and a knife (which are dangerous

weapons) were allegedly recovered from them.

21. The seizure of sword and knife from the petitioners therefore

does not inspire confidence.

22. In this case, there is no worthy evidence to connect the

petitioners with the commission of the crime but the trial court and

appellate court have erroneously recorded finding of conviction and

awarded sentence against the appellants under Sections 399 and

402 IPC. Their conviction and sentence are, therefore, not sustainable

in the eye of law and liable to be set aside.

23. In view of the above discussion, the decisions referred to and

the submissions of the learned counsel, the impugned judgments are

liable for interference.

24. The judgment and order of conviction dated 29.11.2001

passed by the learned Asst. Sessions Judge-Cum-C.J.M., Rayagada, in

Sessions Case No.14 of 2001 and judgment dated 16.02.2006 passed

by the learned Addl. Sessions Judge, Rayagada in Criminal Appeal

No.61 of 2001 are set aside.

25. The Criminal Revision is allowed.

26. As the petitioners are stated to be on bail, their bail bonds are

discharged.

27. The trial Court records be returned forthwith to the learned

trial court with a copy of this judgment.

......................

(Savitri Ratho) Judge

Orissa High Court, Cuttack Dated, the 30th May 2025/RKS