MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA NO.04 OF 2008 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 10th May 2006 passed by the learned IInd Additional Sessions Judge, Puri in Sessions Trial Case No.23/23 of 2005/2005. State of Orissa ---- -versus- …. Appellant Raju Behera & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ====================================================== For Appellant - Mr. S.K. Nayak, Additional Govt. Advocate For Respondents - Ms. K. Panda, Advocate (Amicus Curiae), CORAM:
Legal Reasoning
MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH DATE OF HEARING:05.08.2024 :DATE OF JUDGMENT:04.09.2024 The State having filed this Appeal under section 378(1)(3) of the Code of Criminal Procedure, 1973 has called in question the judgment of acquittal dated 10th May 2006 passed by the learned IInd Additional Sessions Judge, Puri acquitting these Respondents-accused persons of the charge under section Page 1 of 10 GCRLA NO. 04 OF 2008 302/201/34 of the Indian Penal Code, 1860 (for short hereinafter called as ‘the IPC’) in Sessions Trial Case No.23/23 of 2005/2005 arising out of G.R. Case No.288 of 2004 corresponding to Gop P.S. Case No.65 of 2004 of the file of learned Judicial Magistrate First Class (J.M.F.C.), Nimapara. The Respondent Nos.1 to 3 and other two namely, Sarbeswar Behera and Mamata Behera had faced the Trail standing charged for commission of the said offences. The Trial Court by the impugned judgment had acquitted all of them of the said charges in holding that the prosecution has failed to establish its case against them beyond reasonable doubt by leading clear, cogent and acceptable Evidence. This Court by order dated 11.03.2008 has granted leave to the Appellant-State in pursuing the Appeal against the Respondent Nos.1, 2 and 3. In this Appeal prayer before this Court is for interference with the acquittal of the Respondents (accused persons) in seeking their conviction for the above offences and consequential imposition of the sentence. 2. Prosecution case is that these accused persons were having enmity with the family of deceased Muralidhar concerning the love relationship between the deceased with the daughter of accused-Sarbeswar (since quitted). The matter had been settled GCRLA NO. 04 OF 2008 Page 2 of 10 the deceased was serving in OSWAL Company, Paradeep and residing there. His daughter got married, Deceased-Muralidhar had however come to the village to attend marriage ceremony of his sister on 08.05.2004. From the next day night around 10 pm Muralidhar was found missing. Therefore, Sadasib Muduli (Informant-P.W.2) with his relations went in search of Muralidhar. They did not find him out. On 10.05.2004, Sadasib lodged a written report, Ext.3 at Gop Police Station informing about said missing of Muralidhar. During such search, Kamala Muduli, who happens to be the sister-in-law of the Informant (P.W.2) told him that accused-Siba had enquired from Muralidhar in the bath ghat of Kushabhadra river about his residential address at Paradeep. After the marriage of Pratima was over, Bilasini Muduli (P.W.5), the wife of the younger brother of the Informant (P.W.2) stated that she had seen accused-Siba and accused-Deba talking with an unknown person in front of their house and during that period, they were pointing finger towards deceased-Muralidhar who was then standing in front of her house (P.W.3’s) wearing lungi and gamuchha and it was on 09.05.2004 around 8.30 pm. In view of such information, the Informant (P.W.2) suspected accused-Sadasib and Deba to have kidnapped his nephew, Muralidhar. Therefore, on 11.05.2004, around 10 pm, he GCRLA NO. 04 OF 2008 Page 3 of 10 lodged another report, Ext.4 in the same Police Station. It is further stated that on 14.05.2004, accused-Raju Behera confessed before Radheshyam Muduli (P.W.7), Baidyanath Das (P.S.10) and Rajkishore Sethi (P.W.11) that he along with his brothers Siba and Deba as well as father Sarbeswar (since acquitted) had killed Muralidhar and after that they tied the dead body with two big stones by rope and taking the same to the pond of one Krushna Chandra Behera had thrown it inside. It is further stated that said accused-Raju disclosed before them that two days thereafter, he found the dead body floating and therefore, he cut the belly, back and neck by a sickle and tying it with a grinding stone again dipped it inside the pond. The disclosure of accused-Raju was also about the previous love affairs with the daughter of Sarbeswar and that he had approached the son-in- law of Sarbeswar requested him to desert his wife (daughter of Sarbeswar). It is further stated that on that very day, Radhashyam (P.W.7) came to the house of the Informant (P.W.2) and told him about the confession made by accused-Raju. The Informant (P.W.2) then told these facts to the family members, namely, Dwarikanath, Sanjay and Bijay and at last to the Officer- In-Charge of Gop Police Station in over telephone. Police came to the spot at 1.00 pm and finally, on the next day morning the dead body of Muralidhar recovered from the pond. GCRLA NO. 04 OF 2008 Page 4 of 10 In course of investigation, the statements of the witnesses including that of the Informant have been recorded and incriminating articles were seized. The inquest being held over the dead body of the deceased, the same was sent for postmortem examination Finally, on completion of investigation, these accused persons along with two others (since acquitted) were asked to face the trial for commission of offence under section-302/201/34 of the IPC. Accordingly, they stood charged for the said offence and faced the Trial. 3. 4. The plea of defence is that of denial and false implication. The Trial Court upon examination of all the twenty-five (25) witnesses and the several documents admitted in evidence and marked Exts.1 to 19, has held that the circumstances evidence relied upon the prosecution do not lead to an unerring certainty that the accused persons are the authors of crime. Accordingly, they have been acquitted all the said charges under section-302/201/34 of the IPC. 5. Mr. S.K. Nayak, learned Counsel for the State submitted that the extra judicial confession made by accused-Raju before P.Ws.7, 10 and 11 in implicating himself as also other co-accused persons; the conduct of accused-Siba in enquiring the residential address of deceased-Muralidhar and furthermore the conduct of accused Siba and Deba in talking with an unknown person on GCRLA NO. 04 OF 2008 Page 5 of 10 09.05.2004 evening in pointing their finger at Muralidhar who were then standing in front of P.W.2’s house; recovery of the sickle pursuant to the statement made by accused-Raju; the enmity between the parties and the conduct of accused Siba and Deba in absconding from the village after detection of the dead body having been proved through clear, cogent and acceptable evidence. According to him, all those being joined together since complete the chain the events in every respect leaving no missing link in unerringly pointing out the finger of accusation at these accused persons, the conclusion of the Trial Court to the contrary is the outcome of perverse appreciation of evidence. He, therefore, submitted that the judgment of acquittal of these accused persons is liable to be overturned. Therefore, the Trial Court having committed grave error in acquitting the accused persons, he contended that the finding of acquittal warrants interference. 6. Ms. K. Panda learned Counsel for the Respondents refuting the above submissions contended that the Trial Court as would reveal from the discussion made in the judgment has analyzed the evidence in respect of each of the circumstances projected by the prosecution. The evidence on record having been found to be wholly unsatisfactory in establishing those circumstances, the Trial Court has rightly concluded that the GCRLA NO. 04 OF 2008 Page 6 of 10 prosecution has failed to prove the charges against the accused persons. 7. Keeping in view the submissions made; we have carefully read the impugned judgment. We have also extensively travelled through the depositions of all the witnesses i.e. P.W.1 to P.W.25 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 19. 8. This being an Appeal against the order of acquittal, as per the settled position of law, the interference with the order of acquittal is called for when there are compelling and substantial reasons for doing so. The Court for the purpose has to ascertain that the judgment impugned is unreasonable and that relevant convincing materials have been unjustifiably eliminated in the process. However, when the findings recorded by the Trial Court are not perverse and contrary to the materials on record and there stands no infirmity in the reasons assigned by the Trial Court for acquitting the accused, no interference is warranted. It is now well settled by a catena of decisions of Apex Court that in an Appeal against acquittal, the following cardinal rules are required to be kept in mind which are:- (a) that the presumption of innocence in favour of the accused stands strengthened by the acquittal of the accused in the Trial; GCRLA NO. 04 OF 2008 Page 7 of 10 (b) if two views are possible, a view favourable to the accused should be taken; (c) that the Trial Judge had the advantage of the looking at the demeanour of the witnesses; and (d) the accused is entitled to reasonable benefit of doubt, a doubt which a thinking man will reasonably, honestly and consciously entertain. 9. Bearing the aforesaid settled legal position in mind with regard to the scope of interference in tis Appeal filed against the acquittal, we find that the Trial Court after noting all those circumstances projected by the prosecution has gone to examine the evidence in respect of each of such circumstances. Coming to deal with the extra-judicial confession of accused Raju, the Trial Court has proceeded to examine the evidence of P.Ws. 7, 10 and 10. Discussing their evidence, in great detail, the Trial Court has not only found the same to be unsafe to be relied upon by assigning very good reasons but also found no corroborative evidence in that regard to be available. The conduct of all those witnesses have not been found to be above board. We find the Trial Court to have made detail examination of their evidence in arriving at such conclusion, even leaving no scope for this Court to take a view to the contrary. Similarly, the Trial Court has discussed the evidence of the prosecution witnesses with regard to other circumstances as GCRLA NO. 04 OF 2008 Page 8 of 10 aforenoted. By elaborate and thorough examination of the evidence on record, those circumstances have also not to have been satisfactorily established. To put it on record, when the prosecution has projected the circumstances as to the recovery of the sickle at the instance of accused-Raju pursuant to his statement during Police custody, the Trial Court has found no further evidence to be there to connect the said weapon to the crime in any manner. And with the same, we find no reason to accord our disagreement in saying that the said evidence even if accepted cannot be taken as an incriminating circumstance against accused-Raju. 11. As regards the relationship, the Trial Court has also found the evidence of the prosecution witnesses to be contradictory with the other. In that way, the evidence in support of the circumstances that accused-Siba was enquiring about the residential address of deceased-Muralidhar and he (Siba) with accused-Deba were talking with unknown person pointing their fingers on deceased-Muralidhar have been found to be highly unreliable for good reasons. Thus, having carefully read the entire judgment of the Trial Court, discussing the evidence on each of the circumstances as pointed out in paragraph-6 of the judgment, we find no such glaring infirmity therein warranting interference within the scope and ambit of this Appeal. GCRLA NO. 04 OF 2008 Page 9 of 10 12.
Decision
In the result, the Appeal stands dismissed. (V. Narasingh) Judge (D. Dash) Judge Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 04-Sep-2024 16:46:26 GCRLA NO. 04 OF 2008 Page 10 of 10