MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No.43 of 2007 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 13.11.2003 passed by the learned Sessions Judge, Phulbani in S.T. Case No.75 of 1999. ---- State of Orissa …. Appellant -versus- 1) Bali Digal 2) Budura Digal …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode) For Appellant - Mr. P. K. Mohanty, Additional Standing Counsel For Respondents - Mr. D. P. Dhal Senior Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 03.10.2024 : 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 13.11.2003 passed by the learned Sessions Judge, Phulbani in S.T. Case No.75 of 1999, arising out of G.R. Case No.378 of 1998, corresponding to GCRLA No.43 of 2007 Page 1 of 15 Balliguda P.S. Case No.104 of 1998, of the Court of the learned Sub-Divisional Judicial Magistrate (SDJM), Balliguda. These Respondents (accused persons) faced the trial being charged for commission of the offence under section 302/324/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’) for committing the murder of Masa Malik and Gumu@Bisweswar Malik and voluntarily causing hurt to Uchhaba Malik (P.W.1).
Legal Reasoning
The Trial Court upon examination of the evidence let in by the prosecution by examining 13 witnesses and those of the defence by examining two witnesses as well as the documents proved from their side has acquitted these accused persons with a finding that the prosecution has failed to prove the charges against the accused persons beyond reasonable doubt. 2. Prosecution Case:- On 16.10.1998, around 10 a.m, one Nira Mallik (P.W.5) with Uchhaba Mallik (P.W.1), Gumu@Bisweswar Mallik (deceased), Kudi Mallik, Gatisa@Lankapati Mallik of village Bikangia and Bala Kanhar (P.W.6), Lalla Kanhar and three others had been to cut the paddy standing over the land of Gumu@Bisweswar Mallik (deceased) situated in village Kusakupuda as instructed by Gumu@Bisweswar Mallik (deceased). When they were cutting GCRLA No.43 of 2007 Page 2 of 15 paddy, it was around 1 p.m., Askera Digal (dead), Bali Digal (accused-Appellant No.1) and Budura Digal (accused-Appellant No.2) arrived and they asked as to why they were cutting paddy from their land. Gumu@Bisweswar then replied that they were cutting the paddy grown on their land. It is stated that Askera then being enraged, pierced a spear at the chest of Gumu@Bisweswar Mallik and Gumu@Bisweswar too being enraged dealt a tangia blow on the head of Askera (dead). It is further stated that Masa Mallik then dealt tangia blow on the back of Budura Digal (accused-Appellant No.2) and then Bali Digal (accused-Appellant No.1) is said to have stabbed Masa Mallik (deceased) by means of a spear. Gumu@Bisweswar Malik fell on the ground and his son Uchhaba Malik while going to hold him, accused-Appellant No.2 Budura Digal dealt a tangia blow on his right hand causing injury. Both Masa Mallik and Gumu@Bisweswar Mallik died at the spot and for their murder the present case has arisen. It be noted that Askera, who was the associate of these two Appellants-accused persons having died, the members of the prosecution party of the present case faced another trial. Information in writing being presented with the Officer-in-Charge (OIC) of Balliguda Police Station by Nira Mallik (P.W.5), the same was treated as FIR and case being registered; investigation was taken up by P.W.8. GCRLA No.43 of 2007 Page 3 of 15 3. In course of investigation, the I.O (P.W.8) examined the Informant (P.W.5), visited the spot, examined other witnesses, held inquest over the dead body of the two deceased persons, namely, Masa and Gumu@Bisweswar and prepared the inquest reports (Ext.3 & 4) respectively. The dead bodies were then sent for post mortem examination by issuing necessary requisition. Some incriminating articles were seized under seizure lists. Accused Budura was arrested on 01.11.1998 and accused Bali on 17.11.1998 and they were forwarded in custody to Court. The seized incriminating articles were sent for chemical examination through Court. On completion of investigation, the I.O (P.W.8) submitted the Final Form placing these accused persons to face the trial for commission of the offences under section 302/324/34 of the IPC. 4. Learned SDJM, Balliguda, on receipt of the Final Form, took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charges for the aforesaid offence against these Respondents-accused persons. 5. At this stage, it be stated that this accused Bali had also presented a written report with the OIC in relation to very same occurrence stating therein that Masa and Gumu and 10 others, GCRLA No.43 of 2007 Page 4 of 15 namely, Damada, Kudi, Dapala, Uchhaba, Nira, Lankapati, Raghunath, Maheswar, Bali and Lala Kanhar having formed unlawful assembly in furtherance of the common object of the said assembly had committed the murder of Askera. Investigation in that case being taken up, Final Form was also submitted as against the above named 10 persons arraigning them as the accused therein. In that Trial, the Court having evaluated the evidence of 11 witnesses examined from the side of the defence as also the documents proved from both sides has acquitted all those accused persons finding that the prosecution has failed to establish the charges against those persons beyond reasonable doubt. Having collected necessary report, it is found that said judgment of acquittal in S.T. Case No.4 of 2000, arising out of G.R. Case No.379 of 1998, corresponding to Balliguda P.S. Case No.105 of 1998, on the file of learned SDJM, Balliguda has not been questioned by the State and thus has attained finality. In that incident, two persons, namely, Masa and Gumu, who are the members of the prosecution party of the present case when had been murdered in the very said occurrence, one associate of the present accused persons, namely, Askera had also been murdered. The members of the prosecution party of the present case having faced the trial for commission of murder of Aksera, they have been acquitted and that has attained finality GCRLA No.43 of 2007 Page 5 of 15 whereas these two accused persons having been acquitted of the charge of committing the murder of Masa and Gumu, the same is now under challenge.
Legal Reasoning
6. Heard Mr. P. K. Mohanty, learned Additional Standing Counsel and Mr. D. P. Dhal, learned Senior Counsel for the Respondents at length. 7. 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 prosecution (P.Ws.1 to 11) and from the side of the defence (D.W.1 to 3) and have perused the documents admitted in evidence marked as Ext.1 to Ext.16/1. 8. 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 GCRLA No.43 of 2007 Page 6 of 15 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 of U.P. v. Mohd. Iqram & Anr., AIR 2011 SC 2296; Govindaraju @ Govinda v. State by Srirampuram Police Station & Anr., (2012) 4 SCC 722; and State of Haryana v. Shakuntla & Ors., (2012) 4 SCALE 526). GCRLA No.43 of 2007 Page 7 of 15 9. On the touchstone of the aforesaid, the Court proceeded to examine the evidence as to whether there arises the justification for reversing the judgment of acquittal recorded by the Trial Court. 10. The important witnesses for the prosecution are P.Ws.5, 6, 10 and 11. All these witnesses claim to be the eye witnesses. It is to be taken note here that in the counter case which was also initiated in the same incident, P.W.2 and P.W.6 were the accused persons and in that case, the allegation as against the accused persons is that they had intentionally killed Askera Digal. The members of the prosecution party here when staked their claim over the landed property in question where the occurrence took place during cutting of the paddy and asserted their possession, the same is denied by the accused persons, who advanced their counter claim in that regard asserting that they are the owners of the land and being in possession had grown paddy over such land. Which, on the fateful day was being cut by the members of the prosecution party and that being resisted, the incident took place. 11. On scrutiny of evidence it is borne out that land in question is situated in the village of the accused and near their house and the houses of the members of the prosecution party is in another GCRLA No.43 of 2007 Page 8 of 15 village. The accused persons when assert that the members of the prosecution party after having trespassed over their land and engaged themselves in cutting the paddy crop, when accosted about such illegal action; the members of the prosecution party stated that as usual when they have grown the paddy over the land have a right to cut the same at that stage, these accused persons and deceased Askera came being armed with lethal weapons and attacked them. The accused persons state that the members of the prosecution party being questioned of their illegal act as aggressors had attacked them and in the process one amongst them, namely, Askera was murdered. It has been stated by P.W.1 that while he along with other were cutting the paddy crops, these accused persons as well as Askera (deceased) arrived when the members of the prosecution party did not allow to cut the paddy crops and they told that since it was their land and they had raised the crops, they would reap the same and therefore, altercation began between Askera (deceased, who was with this accused persons) and Masa (one such deceased, who was the member of the prosecution party). It is then stated that Askera was first assaulted by Masa on his head by means of a tangia and he fell down died instantaneously. It is then stated that one of the Respondents (accused Bali) stabbed Masa in his chest by a spear. He further states that his father GCRLA No.43 of 2007 Page 9 of 15 Gumu (the other deceased who was the members of the prosecution party) aimed a tangia blow on the head of accused Bali but the blow fell on his shoulder and when accused Budura came to assault, his father Gumu brandish the tangia which hit the back of accused Budura and then stabbed on the chest of Gumu by a spear which led to his death. Admittedly, long standing civil dispute in relation to the land was pending between the parties. P.W.5, who is a labourer engaged by Gumu (deceased) says that while they were cutting paddy, Askera was holding a tangia and these accused persons holding spear came and questioned them as to why they were cutting the paddy from the land when Gumu and Masa (two deceased) replied that they were cutting paddy from their own land and it was only thereafter, the occurrence began when, Askera came to assault Gumu and Masa and seeing that Gumu and Masa brandished their tangia and thereafter accused Bali stabbed on the chest of Masa by a spear, as already noted and accused Budura stabbed on the chest of Gumu by a spear, as already noted. The happening in the incident as has been deposed by P.W.1 and P.W.5 greatly varies and appears to be irreconcilable on material aspects. GCRLA No.43 of 2007 Page 10 of 15 Next the evidence of P.W.6 is to the effect that when they were cutting paddy, Askera came holding a tangia and these two accused persons were then holding spear and challenged the members of the prosecution party. All the accused persons came to assault Masa, he then brandished the tangia. He does not state as to what was the consequence of such brandishing of tangia by Masa. His further evidence is that thereafter there was a tussle between accused Masa and Askera and both fell on the ground and then Masa dealt a tangia blow on Askera whereafter accused Bali stabbed on the chest of Masa by a spear when accused Budura stabbed the chest of Gumu by another spear. Such evidence of P.W.6 does not present the picture as to the incident as a whole which has been presented by P.W.1 or P.W.5. The evidence of P.W.10 being gone through, we find him to have stated that Askera chased Masa by holding a spear and Masa killed Askera by causing injury by a tangia and thereafter accused Bali stabbed Masa by means of Barcha whereas accused Budura stabbed Gumu by means of Barcha. The happenings in the incident as presented by this P.W.10 is different then what has been presented by previous witnesses. Coming to the evidence of P.W.11, it is seen that he has stated that these accused persons along with Askera came to the spot and started quarreling with Gumu and others and thereafter, GCRLA No.43 of 2007 Page 11 of 15 accused Bali assaulted Gumu by means of spear and accused Budura assaulted Masa by means of spear, which has led to their death. This witness again has presented a totally different story. All these witnesses are conspicuously silent as to how Askera sustained injury and died. With the above evidence as discussed, this Court finds the Trial Court to have rightly concluded that the evidence of all the P.Ws. substantially differ from each other on material particulars including sequence of events and the manner in which the deceased Masa and Gumu were assaulted and died. The Trial Court has then also referred to certain contradictions appearing in the evidence of all the above noted witnesses and terming those to be material contradictions as their version before the Investigating Officer were completely different, the same was taken as the ground to hold that such evidence is untrustworthy to be relied upon. When as per the settled principles, the evidence of such witnesses being the members of the prosecution party and arraigned as the accused persons in the counter case arising from the said incident are required to be scrutinized with utmost care and circumspection. In our opinion, the view taken by the Trial Court cannot be turned as erroneous. Evidence of all these GCRLA No.43 of 2007 Page 12 of 15 witnesses being read in entirety would reveal that the possession of the land in question by the members of the prosecution party and they having raised the paddy crop over the same, has not been established beyond reasonable doubt and rather some doubtful features stand in view of the distance between the land and the houses of the members of the prosecution party moreso, when considered in the backdrop of pending civil litigation. The witnesses are also found to have suppressed some parts of the incident so as to cover up their roles. The I.O (P.W.8) has stated that P.W.1 had stated before him that for the first time, they saw the accused persons with their family members cutting the paddy from the case land. Since that is now not stated by P.W.1, it creates a reasonable doubt in mind when the prosecution witnesses state that they were cutting paddy and the accused persons with Askera came and protested. He too has not stated before him that accused Budura had stabbed on the chest of Gumu @ Bisweswar. He has also stated that P.W.1 had not stated before him that accused Budura came and assaulted him by means of a spear and that out of fear, he was running away when spear blow of accused Budura hit his elbow whereas in the version of P.W.1 in the trial is different. GCRLA No.43 of 2007 Page 13 of 15 P.W.5 had not stated during investigation that the accused persons came to the spot being armed with tangia and barcha and that accused Budura stabbed on the chest of Gumu and he too had chased Uchhaba with a spear and while Uchhaba was running away, this spear blow of accused hit the elbow of Uchhaba. These versions are given a go-bye during trial. It was the version of P.W.5 during investigation that the land owner Radha Mallik had allowed the father of the accused to plough portion of the case land and Jayee Digal was working under Radha Mallik and after the death of Radha Mallik, his sons did not allow the accused persons to enjoy the land and were attempting to snatch away the land from the possession of the accused. This aspect not being delved into strikes at the credibility of these witnesses when they depose that as usual they were cutting the paddy and as such is not acceptable. P.W.6 had also not stated before P.W.8 that accused Budura stabbed on the chest of Gumu and he chased P.W.1 with spear and while P.W.1 was running away, the spear blow of accused Budura hit his elbow. Thus it is evidence that the above named prosecution witnesses are not correctly presenting the events which took place, sequence wise. GCRLA No.43 of 2007 Page 14 of 15 12. Thus as close evaluation of the entire prosecution evidence, this Court does not trace any element of perversity in the manner of appreciation of evidence by the Trial Court in recording the finding that the prosecution has failed to establish the charges against these accused persons beyond reasonable doubt. Therefore, we within the contours of exercising jurisdiction in an appeal against acquittal, find no such reason/justification to interfere with the ultimate conclusion reached by the Trial Court. 13.
Decision
In the result, the Appeal stands dismissed. The judgment of acquittal dated 13.11.2003 passed by the learned Sessions Judge, Phulbani in S.T. Case No.75 of 1999 is hereby confirmed. V.Narasingh, J. I Agree. (D. Dash) Judge (V. Narasingh) Judge Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Oct-2024 11:49:19 GCRLA No.43 of 2007 Page 15 of 15