“It is a fundamental right of every citizen to have his own political theory and ideas and to propagate the same and work for their establishment so long he does not stick to do so by force or violence.”
Sessions Court, Berhampur: First Additional Sessions Judge S.K Sahoo sentenced Maoist leader Sabyasachi Panda, to life imprisonment for waging, attempting to wage a war and abetting waging of a war against the Union of India.
Sabyasachi Panda, one of the dreaded Maoist leaders in Odisha, is allegedly involved in several major cases of Maoist violence in Odisha such as – attack on R. Udaygiri town in Gajapati district, the Nayagarh armoury loot, the murder of VHP leader Swami Lakshmanananda Saraswati and his four associates in Kandhamal district and abduction of two Italian tourists in Kandhamal district. He was initially a member of the outlawed CPI (Maoist), from which he was expelled in 2012. After his expulsion, he formed the Odisha Maovadi Party (OMP).
Background of this case was that the police was informed by its local asset that Naxal leader Sabyasachi Panda (accused herein), against whom many cases of murder, rioting, kidnapping, sedition and unlawful activities were pending in different districts of Odisha, was planning to organize disruptive activities by staying in the house of a local village resident. Following a gunfight, Panda was arrested and around a dozen phones, 45 SIM cards, laptops, cash, gold and a bundle of leaflets containing anti-government slogans were seized from him. It was ascertained that he had come with an intention to conspire against the State by organizing terrorist gang attacks and that he intended to further his disruptive activities which were against the unity, integrity, sovereignty and war against the State. He shouted slogans against the government such as “Mao Sangathan Jindabad Police Kukura Murdabad, Sasashtra Sangram Dwara Maobadi Sasan Prathista Hebo”. An FIR was registered against him under Sections 353, 121, 121(A), 124 (A) of the Penal Code, 1860 and Sections 25(1-B)(a) and 27 of the Arms Act, 1959 read with Sections 18, 20 and 38 of Unlawful Activities (Prevention) Act, 1967. Panda pleaded not guilty to the charges drawn against him and claimed for trial. Hence, this case.
Learned defence counsel D.K. Pattnaik pleaded that since the independent witnesses examined by the prosecution have not completely supported the case of the prosecution, the evidences of official witnesses cannot be relied upon and for the said reason only prosecution case fails. He further said that one Mouser was found from the possession of the accused and he attempted to fire to police personnel by said Mouser, but during the course of investigation, the complainant or any of the investigating officers did not take any step to obtain the fingerprints of accused.
Learned Additional Public Prosecutor Gyanendra Nath Jena argued that there was clear, cogent, clinching, trustworthy and direct evidence available against the accused. He further submitted that though the independent witnesses had not supported the prosecution’s case in toto, they had supported prosecution case to some extent, and their evidence could not be thrown away due to minor and trivial contradictions. He pleaded that some independent witnesses might retract due to gravity of the case but the Court must apply the principle enunciated in State of Orissa v. Uttara Pradhan, 2017 SCC OnLine Ori 314 where it was held that “while disposing of sessions cases, the court has to stick to the evidence on record instead of expressing his impression or thoughts and probabilities and possibilities which are unknown to criminal jurisprudence.”
The Court, after hearing both the parties, observed and opined as below:
Evidence of official witnesses:
The Court relied on Sumit Tomar v. State of Punjab, (2013) 1 SCC 395 where it was held that “it is desirable to examine independent witness, however, in the absence of any such witness if the statements of Police Officer are reliable and when there is no animosity established against them by the accused, conviction based on their statements cannot be faulted with.”
Inconsistencies in evidence:
Placing reliance on State of Karnataka v. Suvarnamma, (2015) 1 SCC 323 it was held that “the court dealing with a criminal trial is to perform the task of ascertaining the truth from the material before it. It has to punish the guilt and protect innocent. Burden of proof is on the prosecution and the prosecution has to establish its case beyond reasonable doubt. Much weight cannot be given to minor discrepancies which are bound to occur on account of difference in perception, loss of memory and other invariable factors.”
Assault on public servant (Section 353 IPC) and using unlicensed arms (Section 3 Arms Act):
The Court opined that the evidence of prosecution clearly pointed out that there was a tussle between accused and the police personnel during the raid and his arrest. When the accused tried to flee from the spot, he used criminal force against the police with an intention to prevent and deter those persons from discharging their duties as such public servants. He was in possession of a country made revolver with live ammunition in contravention of Section 3 of the Arms Act. He also used the said revolver in contravention of Section 5 of Arms Act for which offence under Sections 353 IPC and Sections 25(1-B)(a) and 27 of the Arms Act were clearly made out against him.
Assaulting President or Governor (Section 124 IPC)
However, the Court finding Panda not guilty for the offence under Section 124 of the IPC opining that there was absolutely no evidence available against him to establish that he had assaulted or used criminal force to the President, Governor, etc. with intend to compel or restrain the exercise of any lawful power.
Waging War against the Government of India:
The Court opined that it is the settled principle of law that to constitute an offence under Section 121 IPC, no specified number of persons is necessary, and the test is to look at the purpose or intention of the gathering. The object of the gathering must be to attain, by force and violence, an object of a general public nature thereby striking directly against the Government authority. A person taking part in an organizing an armed attack on the constituted authority and for subverting the government is guilty of the offence if he recruits people with the said object, and punishes those who refuse to join him, he is guilty of waging war. Abetting the waging of war is also ascertained on the same basis as waging of war.
It was observed that so long as a man tries to inflame feeling to excite estate of mind he is not guilty of anything more than sedition. It is only when he incites to action that his guilty of instigating and therefore abetting the waging of war.
Further, there are two kinds of conspiracies namely (i) conspiracy to commit the offences punishable under Section 121 IPC; and (ii) conspiracy to overawe by means of criminal force or show of criminal force the Central or State Government. The word ‘overawe’ imports more than the creation of one apprehension or alarmed or even fear. It connotes the creation of a situation in which the members of the Central or the State Government feel compelled to choose between yielding to force or exposing themselves and the members of the public to very serious danger.
Laxity of investigating authorities:
The Court also observed that the authorities had investigated a grave and sensational case in a very casual manner. Prosecution had not conducted trial of the case properly and the official witnesses have adduced their evidence haphazardly. No steps were taken to collect fingerprints of the accused for examination; alleged revolver used by accused was not sent for any examination or ballistic opinion; call detail records (CDRs) of the phone number used by accused was not obtained; investigating officer had deposited seized gold and cash without taking permission from the competent court for shape deposit.
However, it was opined that such irregularities would not vitiate the case of the prosecution where other clear, cogent, clinching and trustworthy materials were produced by the prosecution before the court. Reliance in this regard was placed on State v. Gurmit Singh, (2014) 9 SCC 632 where it was held that “in cases of defective investigation, the court has to be circumspect in evaluating the evidence, but it would not be correct to acute the accused solely on account of defect in investigation. To do so would tantamount to playing into the hands of the investigating officer even if the investigation is designedly defective”.
In view of the abovestated facts and law, the Court opined that though the seizure of incriminating materials and slogans given by the accused were not supported by any independent witness, considering the facts and circumstances, evidence of official witnesses could not be disbelieved. It was held that while the accused was apprehended he was attempting to wage war and abetting others to wage war against the Government of India; he was also conspiring to wage war against the Government and to overawe by means of criminal force. As such, he was convicted for offence under Sections 121, 121-A, 353 of IPC and Sections 25(1-B)(a) and 27 of Arms Act. He was thus, sentenced to rigorous life imprisonment and a total fine of Rs 25,000 was imposed on him.[State v. Sabyasachi Panda, Sessions Trial No. 33 of 2015, decided on 18-05-2019]