MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GA No.21 of 2002 In the matter of an Appeal under Section 378 (1)(3) of the Code of Criminal Procedure, 1973 and from the judgment of acquittal dated 23.09.1998 passed by the learned Additional Sessions Judge, Khurda in S.T. Case No.15/75 of 1998. State of Orissa …. Appellant ---- -versus- Biranchi Narayan @ Halu Mohapatra …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode) For Appellant - Mr. P. K. Maharaj, Additional Standing Counsel For Respondent - Mr. B. Panda Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 02.09.2024 : Date of Judgment :09.10.2024 D.Dash,J. The State of Odisha, by filing this Appeal, has called in question the judgment of acquittal dated 23.09.1998, passed by the learned Additional Sessions Judge, Khurda in S.T. Case No.15/75 of 1998, arising out of G.R. No.68 of 1998 corresponding to Tangi P.S. Case No.11 of 1998, of the Court of the learned Sub-Divisional Judicial Magistrate (SDJM), Khurda. The Respondent standing charged for commission of the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’) having faced the charge has been acquitted of the said charge. GA No.21 of 2002 Page 1 of 10 The Trial Court, having gone through the evidence let in by the prosecution and defence and on perusal of the documents admitted in evidence from the side of the prosecution (Ext.1 to Ext.13), has finally come to the conclusion that the prosecution has not been able to prove its case against the accused beyond reasonable doubt, which is now under challenge in this Appeal by the State. 2. Prosecution Case:- The accused had married ‘X’ (name not disclosed) in or about the year 1977/1978. It is stated that one year after the marriage, ‘X’, the wife of the accused developed extra marital relationship with ‘Y’, who is the resident of the said village. For that reason, the accused had driven out ‘X’ from his house. From that day onwards, ‘X’ stayed for about 5 years in the house of her father. Thereafter as per the request of the parents of ‘X’, the accused accepted her again in his house and both of them lived together under one roof as husband and wife. Be that as it may, that ‘X’ did not amend and continued to be in touch with ‘Y’ secretly. Therefore, on 19.01.1998, there was a quarrel between ‘X’ and her husband (accused). It is stated that the accused then had decided to murder ‘X’. Accordingly, on 22.01.1998 night, when ‘X’ with her two minor daughters had slept in her bed room, the accused dealt repeated strokes by means of sword (Kati) on the left side of her neck crossing the ear drum causing instantaneous death of ‘X’. The accused having committed the murder of his wife ‘X’, threw away the sword in the campus of one Sudarsan Mohapatra and proceeded to the police station where he confessing to have committed the crime disclosed that he could give recovery of the said sword when taken to the place as he would lead. GA No.21 of 2002 Page 2 of 10 3. On 23.01.1998, it was around 45 minutes past mid night, this accused is stated to have arrived at the Tangi Police Station and had confessed before the Officer-in-Charge (OIC), Tangi Police Station, to have murdered his wife ‘X’ by mean of sword (Kati) and also to have thrown the said weapon inside the campus of one Sudarsan Mohapatra (P.W.2). The OIC (P.W.9) immediately entered the said fact in the
Legal Reasoning
Station Diary Book of the Police Station and drawing up plain paper FIR on his own information (Ext.7), registered the criminal case and took up investigation. In course of investigation, the Investigating Officer (I.O.-P.W.9) arrested the accused, seized his wearing apparels i.e. one yellow dhoti stained with blood in presence of witnesses under seizure list (Ext.2). It is further stated that the accused while in police custody had disclosed that if he would be taken to the police where he had kept the sword (Kati), he would give recovery of the same. The statement of the accused was recorded by the I.O (P.W.9). It is stated that the accused led the police and others to the bari of P.W.2 and had given the recovery of the sword (kati-M.O-I). The I.O (P.W.9) held inquest over the dead body of the deceased and prepared the report (Ext.4) in presence of the witnesses. He also sent the seized incriminating articles including the weapon, wearing apparels of the accused and the deceased for chemical examination through Court. The I.O (P.W.9) having visited the spot, had prepared spot map (Ext.11). The I.O (P.W.9) in course of investigation had also recorded the statement of the witnesses. The I.O (P.W.9) sent the dead body for post mortem examination and obtained the report. On completion of the investigation, the I.O. (P.W.9), submitted the Final Form placing this accused to face the Trial for commission of GA No.21 of 2002 Page 3 of 10 the offence under section 302 of the IPC for having intentionally caused the death of ‘X’. 4. Learned SDJM, Khurda, on receipt of the Final Form, took cognizance of said offence and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offence against this Respondent-accused. 5. The prosecution, in support of its case, has examined in total nine (09) witnesses. P.W.1 is the son of the accused. P.W.2, P.W.5, P.W.6 & P.W.7 are the witnesses to the statement of the accused given to the police while in police custody and leading the police and others to the place in giving recovery of the weapon sword (Kati). P.W.2 is the co- villager in whose bari the sword (kati) had been thrown. The Doctor, who had conducted autopsy over the dead body of the deceased is P.W.8 whereas the informant is P.W.9, who too happens to be the I.O of the case. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Ext.1 to Ext.13. The defence, being called upon to adduce evidence in support of their plea of denial, had not adduced any evidence. 6. The Trial Court, having found the death of ‘X’ to be homicidal on account of the injuries received by ‘X’, driving support from the evidence of the Doctor (P.W.8) and other witnesses including the I.O (P.W.9), who had seen ‘X’ with such injuries; having analyzed the evidence on record has found the same to be deficient in establishing the GA No.21 of 2002 Page 4 of 10 charge by circumstantial evidence beyond reasonable doubt when the prosecution has not led any direct evidence on the complicity of the accused. 7. Learned Additional Standing Counsel for the State (Appellant) submitted that the available evidence although establish the incriminating circumstances as against the accused, the Trial Court having appreciated the same in a perverse manner has erred in recording the finding against the prosecution that it has failed to establish the charge against the accused. He submitted that the dead body of ‘X’ having been recovered from the bed room of the house where the accused was staying, it ought not to have been held that the prosecution has been able to discharge the burden of proof which had shifted upon the shoulder of the accused to dislodge the same and that having not been done, the Trial Court ought to have held the accused guilty of murder of ‘X’ with the aid of the provision contained in section 106 of the Evidence Act. He, therefore, urged that it is a fit case for setting aside the order of acquittal, which is non-meritorious one. 8. Learned counsel for the Respondent (accused) submitted all in favour of the finding which has been returned by the Trial Court. He submitted that the Trial Court having thoroughly scanned the evidence has found the prosecution to have not been able to establish the circumstances incriminating as against the accused, and, as there surfaces no perversity, the acquittal of the accused having been recorded, the same has to be confirmed. 9. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the GA No.21 of 2002 Page 5 of 10 prosecution (P.Ws.1 to 9) and have perused the documents admitted in evidence marked as Ext.1 to Ext.13. 10. Before proceeding to address the rival submissions, we would like to place on record, the scope of interference in an appeal against the acquittal and when the same is justified. In exceptional cases, where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference – Pudhu Raja v. State (2013) 1 SCC (Cri) 430: (2012) 11 SCC 196; Phula Singh V. State of Himachal Pradesh, 2014 AIR SCW 1499. See also Basappa v. State of Karnataka 2014 AIR SCW 1529. Interference with acquittal in appeal is justified only when there is element of perversity traceable from the findings recorded by the lower court in appreciation of evidence – Govindaraju v. State (2012) 2 SCC (cri) 533: (2012) 4 SCC 722. In Ramesh Harijan v. State of U.P. (2012) 2 SCC (Cri) 905: (2012) 5 SCC 777, it has been held as follows:- “The law of interfering with the judgment of acquittal is well- settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide: State of Rajasthan v. Talevar & Anr., AIR 2011 SC 2271; State GA No.21 of 2002 Page 6 of 10