MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No.26 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 30th March, 2001 passed by the learned Second Additional Sessions Judge, Berhampur in S.C. No.37 of 1998 (S.C. No.337/98-GDC). State of Orissa …. Appellant ---- -versus- Abhimanyu Sahu …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode) For Appellant - Mr.G.N. Rout, Additional Standing Counsel For Respondent- None CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 07.10.2024 : Date of Judgment : 09.10.2024 The State of Odisha, in this Appeal, has called in question the judgment of acquittal dated 30th March, 2001 passed by the learned Second Additional Sessions Judge, Berhampur in S.C. No.37 of 1998 (S.C. No.337/98-GDC) arising out of G.R. Case No.163 of 1997 corresponding to Purushttampur P.S. Case GCRLA No.26 of 2002 Page 1 of 11 No.163 of 1997 of the Court of the learned Judicial Magistrate
Legal Reasoning
First Class (J.M.F.C.), Purushottampur. The Respondent, being arraigned as an accused, faced the trial for commission of the offence under section 302/34. The Trial Court has convicted him for commission of the offence under section 304-II of the IPC and accordingly, he has been sentenced to undergo rigorous imprisonment for a period of four (4) years for the said offence. This Appeal has been filed on the ground that keeping in view the evidence on record the Trial Court ought to have convicted the accused under section 302 of the IPC and not under section 304-II of the IPC and accordingly, the accused ought to have been sentenced for the offence under section 302 of the IPC. 2. Prosecution Case:- On 19.12.1997 around 11.30 p.m., the accused with his son Bijay Kuamr Sahu (juvenile offender) in furtherance of their common intention, committed the murder of Budha @ Pramod Kumar Bhuyan in intentionally causing his death. On 20.12.1997 around 2.30 a.m., Prahallad Behera (Informant-P.W.1) lodged a report with the Officer-in-Charge of Purusotampur Police Station to the effect that his elder mother (father’s elder brother’s wife), namely, Saraswati Bhuyan asked him (P.W.1) to call Budha @ Pramod for taking GCRLA No.26 of 2002 Page 2 of 11 meal. The Informant (P.W.1) then went to call Budha @ Pramod. Having gone to Badhei Sahi in the western side of the village, he (P.W.1) saw that Budha @ Pramod standing in front of the house of this accused Abhimanyu and was talking with him and his father, namely, Gurubari. At that place, Gura Bhuyan (P.W.2), Titu Bhuyan and Tarini Bhuyan (P.W.4) and Pratap Bhuyan were standing and listening to the conversion. At that time, it is said that this accused came armed with a sword and gave a blow on the bead of Budha @ Pramod when the son of this accused (juvenile offender) also assaulted by means of a lathi. Seeing the incident, the persons present there, out of fear, fled away and the Informant (P.W.1) saw the entire occurrence with the help of the electric light, on the verandah of this accused. It is stated that on account of such assault, Budha @ Pramod sustained bleeding injuries and fell down. The Informant (P.W.1) then immediately rushed to the elder brother of Budha @ Pramod, namely, Tanku @ Padma Ch. Bhuyan. Thereafter, the Informant (P.W.1) and that Padma Ch. Bhuyan came to the spot and found Budha @ Pramod lying dead. It be stated here that although said information was lodged with the O.I.C. (P.W.13) at Village-Gangadahuni, yet prior to that, the OIC (P.W.13) had received a telephonic GCRLA No.26 of 2002 Page 3 of 11 message with regard to the incident and had entered the said fact in the station diary book maintained at the P.S. and had proceeded to the spot. On the way, he saw two persons coming from the opposite direction and one was holding a sword. So, the OIC (P.W.13), out of suspicion, had detained those persons, who, on interrogation, had disclosed their names. So, they had been taken to the Police Station and detained there, whereafter the OIC (P.W.13) had come to Village-Gangadahuni and saw the dead body of Budha @ Pramod lying there at the spot where the Informant (P.W.1) lodged the written report. Said written report being treated as FIR, the IO (P.W.13) took up the investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.13) examined the Informant (P.W.1) and other witnesses. He (P.W.13) held the inquest over the dead body of the deceased and prepared the report to that effect (Ext.10). He (P.W.13) also sent the dead body for post mortem examination by issuing necessary requisition. He having visited the spot prepared the spot map (Ext.20). The seized incriminating articles were sent for Chemical Examination through Court. On completion of the investigation, the I.O. (P.W.13) submitted the Final Form placing the accused to face the Trial for commission of the offence under section 302/34 of the IPC. GCRLA No.26 of 2002 Page 4 of 11 4. Learned J.M.F.C., Purushotampur, 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 charge for the aforesaid offence against this Respondent-accused person. 5. The prosecution, in support of its case, has examined in total twelve (12) witnesses during Trial whereas the defence examined two. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 25. Out of those; important are the FIR (Ext.1); inquest report (Ext.10), the post mortem report (Ext.11) and the spot map (Ext.20). The defence, being called upon, has examined two witnesses as D.Ws.1 & 2. The seized incriminating articles being produced before the Trial Court have been marked as material objects (M.O.I to M.O.IX). The defence has proved the endorsement of the constable on the command certificate (Ext.9) issued to him to accompany the dead body for post mortem examination. GCRLA No.26 of 2002 Page 5 of 11 6. The plea of the accused is that on the date of occurrence, Buda @ Pramod was holding a sword and he was with Gura (P.W.2), Magi (P.W.3), Tarini (P.W.4), Titu Bhuyan and Pratap Bhuyan. They came to the house of the accused and dragged Gurubari (D.W.2), the father of the accused from the house. They gave threat to commit the murder of Gurubari and dragged him to the house of one Ladu Sahu. They then called
Legal Reasoning
Banabasi (P.W.8) and Smt. Koili Sahu. There they told that Gurubari was circulating rumors agains Budha @ Pramod. Said Koili and Banabasi (P.W.8) stated that Budha @ Pramod and others they were harassing them unnecessarily. Then again Budha @ Pramod and the witnesses dragged Gurubari (D.W.2) from the village road (danda) to the house of Abhi and at that time saw many persons to have gathered there when one among the above gathering, went and dragged the sword from the hands of Budha @ Pramod and dealt a blow on his head by that sword. Receiving that blow from the said person, Budha @ Pramod sustained injuries. It is the further plea that one Abhimanyu, son of Bidu Bhuyan and Rama Chandra son of Abhiram Sahu as well as this accused were fighting with Budha @ Pramod. The accused has categorically denied the allegation leveled against him by the prosecution. GCRLA No.26 of 2002 Page 6 of 11 7. The Trial Court, upon examination of the evidence and their analysis, having concluded that it was this accused, who dealt the fatal blow on the deceased, however, has found that for the said roles and the act done by this accused, he is not liable to be held guilty for commission of the offence under section 302 of the IPC and instead, he is liable for commission of the offence under section 304-II of the IPC. Accordingly, the Tria Court has convicted this accused and sentenced him as afore-stated, which is under challenge in this Appeal on the ground that the Trial Court, basing upon the evidence, ought not to have altered the offence committed by the accused to be one under section 304-II of the IPC. 8. Heard Mr. G. N. Rout, learned Additional Standing Counsel for the State (Appellant). None appeared for the Respondent (accused) in spite of repeated calls. We have perused the impugned judgment and having gone through the deposition of the witnesses, examined from the side of the witnesses as well as the defence, we too travelled through the documents admitted in evidence Ext.1 to Ext.25. 9. Before going to ascertain the sustainability of the finding of the Trial Court as regards the categorization of the offence committed by the accused, as has been done by the Trial Court, GCRLA No.26 of 2002 Page 7 of 11 it is apposite 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. 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:- there are cases where “The law of interfering with the judgment of acquittal is well- settled. It is to the effect that only in exceptional 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 GCRLA No.26 of 2002 Page 8 of 11 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). 10. 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. The prosecution case from the very beginning is that on the relevant date of occurrence, around 11.30 p.m. Budha @ Pramod called Gurubari, who happens to be the father of the accused and asked him as to why he was making a scandal against him. It is also stated that then he took Gurubari to the house of P.W.8 and asked him as to whether P.W.8 had given any money to him so as to harass Rajib. P.W.8 when denied the said fact, the deceased took Gurubari in front of his house and during then P.Ws.2, 3 & 4 and others followed the deceased. It has also been the evidence of P.W.1, who is the Informant, that on his arrival, he saw the deceased engaged in discussion with Gurubari. GCRLA No.26 of 2002 Page 9 of 11 P.W.3 has stated that in the house of Banabasi, Gura told to leave Gurubari and P.W.4 has also stated that mother of Banabasi stated that first Gurubari be let off. It is also said by P.W.8 that he during investigation had stated that hearing this, P.W.2 stated to the deceased to leave Gurubari. When the above prosecution witnesses have stopped at that place, we find the evidence of this accused examined as D.W.1 and his father examined as D.W.2 that on that date and time of occurrence, Budha @ Pramod holding a sword dragged Gurubari, the father of this accused. D.W.2 has also stated Budha @ Pramod holding that sword putting a napkin on his neck, dragged him (D.W.2) to the house of P.W.8 and threatened him to kill and then he dragged from the house of P.W.8 to the place situated in front of his house and the witnesses (P.W.2, P.W.3, P.W.4 & others) surrounded him. From this, the Trial Court has taken the view that it appears that on the date of occurrence, the deceased dragged the father and the father of this accused was under the clutch of the deceased. We find no such fault with the view. When the incident had taken place in the above manner and the accused coming with the weapon (sword) is said to have dealt a blow on the head of the deceased, the view taken by the Trial Court that it was not with any intention to kill the deceased but to GCRLA No.26 of 2002 Page 10 of 11 save Gurubari, who was being dragged from time to time and from one place to other, the view of the Trial Court that for the said role played and the act done by the accused, he cannot be held guilty to have committed the offence under section 302 of the IPC; cannot be said to be palpably erroneous and as such liable for interference in this Appeal challenging the judgment of acquittal of the accused for the offence under section 302 of the IPC with its scope and ambit. In that view of the matter, we are of the considered view that the Appeal does not merit acceptance. 11. In the result, it is held that the judgment of acquittal dated 30th March, 2001 as has been passed by the learned Second Additional Sessions Judge, Berhampur in S.C. No.37 of 1998 (S.C. No.337/98-GDC) needs no interference. The Appeal stands dismissed. V. Narasingh, J, I agree (D. Dash) Judge (V. Narasingh) Judge Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Basu Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 09-Oct-2024 14:05:09 GCRLA No.26 of 2002 Page 11 of 11