Supreme Court of India
STATE OF ORISSAversusSIKHAR JENA AND ORS
- Citation
- 2008 INSC 1370
- Decided
- 1 December 2008
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
The High Court erred in discarding PW‑2's evidence without proper reasoning; the acquittal is set aside and the matter remanded for fresh consideration.
Summary
The incident occurred on 19 March 1984 when a mob of labourers attacked police personnel at the Iron Ore Plot in Paradeep, resulting in the deaths of five police officers. Six accused were convicted by the trial court on the basis of eye‑witness testimony of Havaldar U.C. Jena (PW‑2) and another police witness (PW‑8). The Orissa High Court, however, set aside those convictions, acquitting the six respondents by discarding PW‑2's evidence without providing detailed reasons. The State appealed, arguing that the High Court had not properly examined the credibility of the key witness and had erred in its abrupt conclusion. The Supreme Court held that the High Court’s order was unsustainable because merely stating that a witness is not believable is insufficient; the appellate court must give reasons when deviating from the trial court’s findings. Consequently, the Supreme Court set aside the acquittal and remanded the matter to the High Court for a fresh, reasoned consideration, without expressing any view on the merits. The appeal was therefore disposed of.
Issues considered
- Whether the High Court correctly acquitted the accused by discarding the testimony of PW‑2 without adequate reasoning.
- Whether an appellate court must provide specific reasons when it departs from the trial court's assessment of witness credibility.
Legislation cited
- Indian Explosives Acts. 9(b)
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 330, s. 353
Subjects
mob violencemurderconspiracywitness credibilityappellate reviewacquittalSection 302 IPCSection 149 IPCpolice firingself-defence
Judgment
[2008] 16 S:C.R. 844
STATE OF ORI SSA .,._
'A ~
v.
SIKHAR JENA AND ORS:
(Criminal Appeal No. 564 of 2002)
DECEMBER 1, 2008
B
[DR. ARIJIT PASAVAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
'r'
Penal Code, 1860: s.302 r.w. s.149 - Attack by mob - ·
c Death of 5 persons - Conviction of six accused, based on
evidence of eye-witness - High Court ordered acquittal, by
discarding evidence of eye-witness - Propriety of..:. Held: Not
proper - High Court by abrupt conclusions discarded the
evidence of eye-witness - Merely stating that the evidence of
D a witness was not believable was not sufficient - Matter
remitted to High Court.
l
Prosecution case was that on the fateful day, there
was clash between the rival groups. Havaldar (PW-2)
informed at the· police station that the accused persons
E ..,.
and their supporters were armed with weapons like lathis,
bombs, farsas etc. The Officer-in-charge along with PW-
2, other police personnel as well as personnel of APR
Force proceeded towards the spot to tackle the situation.
After reaching the place of occurrence, mob became ...
F
furious and started brick batting the police party. Officer-. •
.)..- ·.
in-charge ordered for firing and· himself fired from his
revolver in self defence. The mob attacked the .Officer-in-
charge and the police personnel and snatched away the ·
revolver .and rifles from them. Four police officers and a.
G
leader of opposite group_.s~ccumbed to the injuries at the ....
spot. Originally 114 accused persons were prosecuted .
f.
and faced trial under twenty nine heads of charges. Out
of the 114 accused persons, a few expired during the trial.·
H 844 ~..,.
STATE OF ORISSA v. SIKHAR JENA AND ORS. 845
Ultimately, apart from the six respondents, all other A
accused persons were acquitted. The conviction of six
respondents was based on evidence of PW-2 and 8. The
High Court allowed the appeal discarding the evidence
of PW-2.
B
Disposing of the appeal, the Court
HELD: The High Court discussed ·in major parts of
its judgment the factual scenario as projected by the
parties. Thereafter by abrupt conclusions PW-2's
evidence was discarded. This certainly was not the C
proper way of disposing of an appeal involving
accusations relating to death of five persons. On that
limited ground, the. impugned judgment is set aside and
High Court is directed -to re-consider the matter afresh
dealing with various points highlighted by the D
prosecution and responses of the accused persons. If
the High Court intends to differ from the conclusions of
the trial Court it has to indicate reasons therefor. Merely
stating that the evidence of a witness is not believable
would not suffice. [Para 5] [849-G-H; 850-A-B] E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 564 of 2002.
From the final Judgment dated 31.8.1999 of the High Court
F
· of Orissa at Cuttack in Crl. Appeal No. 190 of 1988.
Radha Shyam Jena for the Appellant.
Abhijit Sengupta for the Respondents~
.G
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J.1. Challenge in this appeal is to
the judgment of a Division Bench of the Orissa High Court
directing acquittal of the respondents.
H
,
846 SUPREME COURT REPORTS [2008] 16 S.C.R.
A 2. Background facts, as projected by prosecution, in a
nutshell, are as follows:
The occurrence took place on 19.3.1984 between 9.30
AM and 10.00 AM. The FIR was drawn up by the Circle
B Inspector of Polic~. Paradeep, purportedly on his own
information on 19.3:1984 at 11 .15 AM . and was formally
registered at the Paradeep Police· station at 12.15 P.M. on
19.3.1984. The informant (The Circle lnspector)who has been l'"
examined as P.W. 49 is admittedly not a witness to the
occurrence, but it is evident from the F.l.R. as well as his
c statement and statements of other witnesses that the F.l.R. 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 whole episode from the police
personnel and outsiders. Prior to 19.3.1984 there was some
D
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 F.L'R.
E
it was mentioned that in the previous night. that is to say, the
night of 18.3.1984, a meeting had been held by accused
Pandab Swain (acquitted), Bata Samal (respondent no.2),
Bishnu Pradhan (respondent no.4), Sikhar Jena (respondent
no.1 ), Sankar Sasmal (respondent no.3) and their supporters
F •
wherein it was decided to finish Shima 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 Shima Jena, who was the leader of the rival group.
In the FIR it was further recited that at about 9.00 A.M . on
G 19.3.1984, Havaldar 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 lath is, bombs, .farsas etcetera and had
attacked brick-bats. It is further indicated that in view of such
H
STATE OF ORISSA v. SIKHAR JENA AND ORS. 847
[DR ARIJIT PASAYAT, J.]
,....._ .., development 1 the Officer-in-Charge of Paradeep Police Station A
Sub-Inspector AK. Kanungo (one of the deceased), proceeded
towards the Iron ore plot along with AS.ls. K.T. Rao (P.W. 3),
S.K.Rout (P.W. 8), Havaldar 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. B
After reaching near Iron ore plot, these police officials found
Pandab Swain, respondents 1 to 4 and several others (named '
in the F.l.R.) and five hundred others (not named in the F.1.R.),
" all of whom had assembled near the area. It was further alleged
that these people were armed with lathis, farsas, iron rods etc. c
and were shouting to murder Shima Jena and his supporters
and had already surrounded Shima 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 D
in which the police officials had gone and assaulted the driver
and set fire to the Trekker. Sikhar Jena (respondent no.1) and
hundred others chased the 0.1.C. and party for assault and
simultaneously set fire to the OSAP Tent. Lathi charges affected
by the police party including the OSAP were over-powered b~ E
the turbulent mob and police personnel including Shima Jen~
were brutally assaulted by Maheswar Swain (acquitted), Bipin
Daiei (not an accused), Gaganlenka (acquitted) and others by
iron rod and farsas. It was further recited that the 0.1.C. having
...
1
~
no other alternative ordered for firing and himself fired from his F
revolver in the self-defence. The mob attacked the 0.1.C. and
the police personnel and snatched away the revolver from th~
0.1.C. and three rifles from OSAP Sepoys a!ong with
ammunition and themselves fired from it. Simultaneously certain
members of the violent mob also inflicted fatal injuries on the G
.... head of the 0.1.C. and other police personnel. As a result, 0.1.C .
)
AK. Kanungo, APR Mustaque Mohammad, APR Constable
Niranjan Sahu, OSAP Sepoy No. 3, P.K. Mahapatra and leader
of the opposite group Bhima Jena succumed to the injurie,s
instantaneously at the spot. Besides, AS.ls, KT.Rao, S.K.Rout,
H
848 SUPREME COURT REPORTS (2008] 16 S.C.R.
. \-
A APR Constables, OSAP Sepoys and. Havildar U.C. Jena I'-.
A..')
sustained severe· injuries. The unruly mob also. set fire to the
hutments of the rival labour group. Due to firing by the police, )
some of the members of the mob also received injuries. The
police Trekker number OSU 2847 and OSAP Tent were
B completely gutted 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 -r l-
different directions and he saw the dead bodies of the police r
c personnel and Shima 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.
D
Accused persons pleaded innocence. 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. Forty nine witnesses were examined to
E further the prosecution version. PWs 2, 3, 8 to 11, 14 to 16,
25, 28 to 31 and 36 were stated to be eye witnesses. Out of
these witnesses PWs 2, 3, 8 to 10, 28 to 31 and 36 were
police personnel whereas PW-11, 14, 15, 16 and 25 were
stated to be supporters of the deceased. Ten witnesses were
F examined by the accused persons primarily to prove the plea f--
of alibi. As noted above, five persons lost their lives for which ~
charges have been framed. The deaths took place at different
spots but in the same area. The trial Court disbelieved some
of the witnesses· but convicted the respondents for having
G caused the death of AK. Kanungo, the officer-in-charge and
--.:
in respect of other allied offences. The conviction of the said
respondents was primarily based on the evidence of PWs 2
and 8. PW-2 was one of the Havaldars of Paradeep Police
station. Respondents 1 to 5 were convicted under Section 302
·H read with Section 149 of the Indian Penal Code, 1860 (in short
STATE OF ORISSA v. SIKHAR JENA AND ORS. 849
[DR ARIJIT PASAYAT, J.]
-
l
~ the 'IPC') and sentenced to undergo imprisonment for life. A
Those five respondents were also convicted under Section 307
read with Section 149 IPC for attempting to <;:ause murder and.
sentenced to undergo RI for seven years; .under Section 330
read with Section 1491.P:C. al)d sentenced to undergo rigorous
imprisonment for five· years and under Section 9 (b) of the B'
Indian Explosives Act, (in short 'Explosive Act') read with
Section 149 IPC and sentenced to undergo RI for two years.
Respondents 1 to 3 were further convicted under Section 148
IPC and respondents 4 and 5 were convicted under Section
147 l.P.C and sentenced to undergo rigorous imprisonment for c
three years and two years respectively. Respondent No.6 has
been convicted under section 353 1.P.C. and sentenced to
undergo rigorous imprisonment for two years.
Originally, 114 accused persons were prosecuted and ·o
faced trial under twenty nine heads of charges. Out of the 114
accused persons, a few expired during the trial. Ultimately,
.. apart from the six respondents, all other accused persons have
been acquitted. In the absenc9 of any appeal against acquittal
at the instance of the State, the acquittal of all other accused E
persons became final. The High Court by the impugned
judgment allowed the appeal discarding the evidence of PW-
2.
3. Learned counsel for the appellant submitted that by a
cryptic practically non-reasoned order the acquittal has been F
directed.
4. Learned counsel for the respondents on the other hand
supported the judgment of the High Court.
G
5. We find that the High Court has discussed in major parts
of its judgment the factual scenario as projected by the parties.
Thereafter by abrupt conclusions PW-2's evidence has been
discarded. This certainly was not the proper way of disposing
of an appeal involving accusations relating to death. of five
H
850 SUPREME COURT REPORTS [2008] 16 S.C.R.
-A persons. On that limited. ground, we set aside the impugned
judgment and direct the High Court to re-consider the matter
afresh dealing with various points highlighted by the prosecution
and responses of the accused persons. If the High Court intends
to differ from the conclusions of the trial Court it has to indicate
B reasons therefor. Merely stating that the evidence of a witness
is not believable would not suffice. We make it clear that we
have not expressed any opinion on the merits of the case. .,..
6. The appeal is disposed of accordingly.
c D.G. Appeal disposed of.
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