MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No.22 of 2015 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 25.01.2011 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.42 of 2010. State of Orissa …. Appellant ---- 1) 2) Laxman Murmu Samra Soren -versus- …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode) For Appellant - Mr. P. K. Maharaj, Additional Standing Counsel For Respondents - Mr. S. K. Dash Advocate
Legal Reasoning
CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 04.09.2024 : 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 25.01.2011 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.42 of 2010, arising out of G.R. Case No.74 of 2010 (T.C. No.495 of 2010), corresponding to Jamda P.S. Case No.6 of 2010, of the Court of the learned Sub-Divisional Judicial Magistrate (SDJM), Rairangpur. The Respondents (accused persons) faced the trial being charged for commission of the offence under section 302/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’) for committing the murder of one GCRLA No.22 of 2015 Page 1 of 8 Dukhu Tudu, under section 307/34 of the IPC attempting to commit the murder of Mahendra Tudu (P.W.11), Fula Tudu (P.W.17), Bali @ Paunra Tudu (P.W.12) and Raisen Tudu (not examined), as also for committing the house trespass, breaking into the house of Saiba Tudu (P.W.1) under section 457/34 of the IPC; under section 324/34 of the IPC for voluntarily causing hurt to Mahendra (P.W.11), Fula (P.W.17), Bali@Paunra (P.W.12) and Raisen as well as under section 326/34 of the IPC for voluntarily causing hurt by means of Bhujali upon Mahendra (P.W.11), Fula (P.W.17), Bali@Paunra (P.W.12) and Raisen; they have been acquitted of all those charges. 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.17), has finally come to the conclusion that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubt, which is now under challenge in this Appeal by the State. 2. Prosecution Case:- On 03.03.2010, around 11.30 p.m, Dukhu Tudu (deceased) with his wife Paunra Tudu (P.W.12), son Mahendra Tudu (P.W.11), Daughter-in-law Fula Tudu (P.W.17) and Grandson Raisen were sleeping in their house. It has been stated in the FIR (Ext.3) that Unknown Persons entered and assaulted them by means of Bhujali causing bleeding injuries. The FIR (Ext.3) being lodged by Saiba Tudu (P.W.1), who happens to be the son of Dukhu (deceased), case being registered, investigation commenced and finally on completion of investigation, the accused persons were placed for trial for commission of the offences under section 302/307/326/324/457/34 of the IPC. GCRLA No.22 of 2015 Page 2 of 8 3. Learned SDJM, Rairangpur, 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. 4. 5. The plea of the accused persons is that of complete denial. The prosecution, in support of its case, has examined in total twenty one (21) witnesses. It be stated that the Informant, who happens to be the son of the deceased is P.W.1 whereas P.W.2 is his wife and P.W.11 is his brother. The Mother of P.W.1 is P.W.12 and P.W.17 is the daughter of P.W.11. The post occurrence witnesses are P.W.3, P.W.4 & P.W.5 and the scribe of the FIR (Ext.3) is P.W.6. The witnesses to the seizure being P.W.8, P.W.9, P.W.13, P.W.14, P.W.18 and P.W.19, the witnesses to the inquest are P.W.10. The Doctor, who had conducted autopsy over the dead body of the deceased is P.W.15 whereas the Doctor, who had examined injured persons except Mahendra (P.W.11) has been examined as P.W.16 and P.W.20 is the Doctor, who had examined injured Mahendra (P.W.11). The Investigating Officer has come to the witness box at the end as P.W.21. 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.17. Important out those are the FIR (Ext.3), Inquest Report (Ext.6), Spot Map (Ext.14) besides Post Mortem Report and Injury Reports. The accused persons have tendered no evidence in support of their defence. GCRLA No.22 of 2015 Page 3 of 8 6. The Trial Court, upon examination of the evidence of all the witnesses as also the documents admitted in evidence and marked Exhibits has found the prosecution case insofar as the complicity of these accused persons are concerned is not free from reasonable doubt. 7. Learned Additional Standing Counsel for the State (Appellant) submitted that the Trial Court having not appreciated the evidence of the injured witnesses properly and rather in a perverse manner has discarded their version in concluding that the prosecution case as projected is not free from doubt. He submitted that merely because the FIR (Ext.3) had been lodged against Unknown Persons, when admittedly the Informant (P.W.1) had not seen the entire incident taking place before him, that ought not to have been given so much of importance. He further submitted that the evidence of P.W.11 under no circumstance would have been disbelieved. According to him, the Trial Court assigning flimsy reasons has erred in not placing reliance upon the evidence let in by the prosecution. He submitted that the available evidence on record being properly scanned, the finding of the Trial Court against the prosecution is liable to be overturned. 8. Learned counsel for the Respondents (accused persons) submitted all in favour of the finding in favour of the accused persons as has been returned by the Trial Court. According to him, the FIR having been lodged by P.W.1, who had gone to the Police Station, after having taken stock of the whole scenario, non-indication of the name of the culprits therein raises grave doubt on the veracity of the prosecution case when the tendency of the prosecution witnesses in view of their prior enmity in falsely implicating these accused persons is not ruled out. He next submitted that the Trial Court has scrutinized the evidence of each of the GCRLA No.22 of 2015 Page 4 of 8 witnesses and then has considered the impact of one with the other and having done that strenuous exercise on cumulative assessment, the view has been rightly taken that the prosecution case as projected is not free from reasonable doubts. 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 prosecution (P.Ws.1 to 21) and have perused the documents admitted in evidence marked as Ext.1 to Ext.17. 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:- GCRLA No.22 of 2015 Page 5 of 8 “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). 11. In the touchstone of the aforesaid, now let us proceed to examine the evidence as to whether there arises the justification for reversing the judgment and order of acquittal recorded by the Trial Court. 12. The death of the deceased having been proved to be homicidal in nature and the Trial Court having so found by analyzing the evidence of the Doctor (P.W.15) and other witnesses falling from the lips of the witnesses has turned its attention to the evidence available as regards the happenings in the incident. It be stated that the FIR has been lodged by P.W.1, who is none other than the son of the deceased. His evidence is that he was sleeping in one room with his wife and child and in the other room, his father, mother, younger brother and his wife were sleeping. He states that accused persons inflicting cut injuries on them and when his mother shouted, he went and saw them lying injured. He of course does not state to have seen any of these accused persons inflicting injuries upon his father, mother and others and his evidence is that the villagers were then called in the night and on the next morning, he lodged the FIR (Ext.3) being scribed by the Ward Member. It is stated GCRLA No.22 of 2015 Page 6 of 8 that he had been to the room with his wife (P.W.2) after hearing the cry and Mahendra (P.W.11) told that he had seen accused Samra and Laxman inflicting injuries. P.W.2, who is the wife of P.W.1 has stated that when she and her husband (P.W.1) went, they saw Laxman and Samra were running towards their Bari and immediately, they could see that cut injuries had been inflicted on Dukhu, her father-in-law and her mother-in-law as well as brother-in-law and his wife. She has also stated that on being asked Mahendra (P.W.11) told her about the occurrence and her husband (P.W.1) lodged the FIR after having discussed the matter with her and others. This being the evidence of P.W.1 and P.W.2, the registration of the FIR as against unknown culprits and non-mention of the name of any of the culprits therein, which was lodged on 04.03.2010 around 11 a.m, raises grave doubt on the veracity of the prosecution case insofar as the complicity of these accused persons are concerned. 13. P.W.1 having known about some of the culprits to have played their role in inflicting the injuries on deceased and other inmates of their house, he is remaining completely silent and not mentioning the same in the FIR and not stating to the police during his first visit to the police station renders his evidence unreliable that too when other witnesses have stated to have heard about the incident from these witnesses P.W.1, P.W.2 and others. The Trial Court has taken note of the fact that P.W.11 having stated that due to assault and tussle, he had lost the sense and therefore, had told the informant P.W.1 about the occurrence in the next morning. That again is enough to hold the evidence of P.W.1 unreliable when it is found that in the FIR, which he had lodged in the forenoon of the next morning, name of no one as culprit finds mention. The Trial Court as it appears has discussed the evidence of each of the witnesses GCRLA No.22 of 2015 Page 7 of 8 including those who have been injured in the incident and according to us, assigning good reasons have doubted their version wherein we find no such perversity. In that view of the matter, when it has been held that the prosecution case as projected is not free from reasonable doubt, we are not in a position to overturn the same in exercise of the power in seissin of an acquittal Appeal and within the scope and ambit of the same. 14. In the result, the Appeal stands dismissed. The judgment of acquittal dated 25.01.2011 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.42 of 2010 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.22 of 2015 Page 8 of 8