The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK Durga Shankar Rath CRLREV No. 454 of 2006 ….. Petitioner Mr. Khageswar Behera, Advocate on behalf of Mr. Anirudha Das, Advocate 1. Prasanta Kishore Mishra 2. State of Orissa Vs. ….. Opposite Parties Ms. Ayushi Meheta, Advocate on behalf of Mr. D.Panda, Advocate (For O.P. No.1) Mr. S.S. Mohapatra, A.S.C. (For O.P. No.2) CORAM: JUSTICE SAVITRI RATHO ORDER 07.03.2024 (Through hybrid mode) Order No. 08. 1. This CRLREV has been filed by the informant challenging the judgment dated 27.04.2006 passed by the learned Chief Judicial Magistrate, Boudh in G.R. Case No. 169 of 2003 acquitting the sole opposite party no.1 from the charges under Sections 294, 341, 506 (II), 324 and 326 of the IPC. 2. The prosecution case in brief as per the F.I.R. is that on 03.07.2002 at about 9 A.M. in village Harekrishnapur under P.S./ District, Boudh, the informant Durgasankar Rath (P.W.5), the
Legal Reasoning
present petitioner along with his wife Smt. Mandakini Rath (P.W.8), son (not examined in this case), one Jayadeba Behera (P.W.1) and the owner/driver of the tractor namely Bimala Sahu (not examined in Page 1 of 6 this case was ploughing the land situated in that village by means of a tractor. The land is situated in front of one stockman centre of village Harekrishnapur. At that time, the accused and his wife Subhalaxmi Mishra (not an accused in this case) came with a 2 feet long sword and climbed over the tractor and threated to kill the tractor driver and asked him to stop ploughing. Seeing this, the petitioner, his wife and his son protested saying that the accused has been prohibited to enter upon the case land by an order under Section 144 Cr.P.C. The accused threatened all of them to leave the land at once with the tractor, otherwise he will kill them. P.W.-8-wife of the informant again protested. So the accused abused her in obscene language and dealt a punch on her. As a result she fell on the ground. The petitioner thereafter directed the tractor driver to continue with the ploughing, so the accused proceeded towards him, abused him in obscene language and threatened him and dealt a sword blow aiming at his neck. P.W.8 his wife stood in front to protect her husband. So the accused recorded but pushed the left hand of P.W.8 and dealt a sword blow on the left leg of the petitioner-Durgasankar Rath causing a cut bleeding injury near his left knee. The trousers of the petitioner got cut and there was bleeding. P.W.8, wife of the petitioner and his son (not examined) removed P.W.5, the petitioner Page 2 of 6 to their Ambassador car which was kept nearby and made him sit inside the car. The entire car was stained with blood. The wearing shoe and the land from the spot to the car were also stained with blood. The accused thereafter came to the car and gave a threat to the son of the petitioner asking him to vacate the village immediately otherwise he would kill him and his mother. Subhalakshmi, wife of accused also threatened him not to enter upon the said land otherwise all will be killed. It was further alleged that son of the petitioner and his wife Mandakini, P.W.8 removed the petitioner to Boudh hospital. On the way they stopped at the house of one Patra Babu and P.W.8 Mandakini obtained some water and cloth from Patra Babu and tied the wound and then they proceeded to Boudh. When the car was stopped at the house of Patra babu, there was the front of the house of Patra babu was stained with blood. The accused was whirling the sword till the informant left the village Harekrishnapur and was giving threats he would kill whoever reported the matter at the Police Station or appeared in the court to give evidence against him. So the villagers left the place and the tractor owner/driver also left the spot. After treatment at the hospital, F.I.R. was lodged and Boudh P.S. Case No. 83 dated 03.07.2003 was registered and investigation was taken up. Page 3 of 6 Chargesheet under Sections 294, 341, 506 (II), 324 and 326 of I.P.C. was submitted against the petitioner and he stood trial in the Court of the learned Chief Judicial Magistrate, Boudh, who as stated earlier acquitted him from the charges. 3. Mr. Khageswar Behera, learned counsel appearing on behalf of Mr. Anirudha Das, learned counsel for the petitioner submits that the learned cout below has failed to consider the evidence on record and taken a view which is perverse. He has illegally refused to believe the injured whose evidence is clear and cogent. The evidence of the Medical Officer reveals that the petitioner had sustained injuries. So the impugned judgment is liable for interference and the case remanded for retrial. 4. Mr. S.S. Mohapatra, learned Additional Standing Counsel
Decision
submits that the impugned judgment is liable for interference as evidence has not been properly considered and relevant evidence has been overlooked. 5. Section 401 of the Cr.P.C. is extracted below. “(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Page 4 of 6 Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392. (2)No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3)Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4)Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5)Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.” 6. Sub-section (3) of Section 401 of the Cr.P.C. specifically provides that the Section does not authorize a High Court to convert a finding of acquittal into one of conviction. Page 5 of 6 7. I have carefully persued the impugned judgment and evidence of the witnesses. 8. Considering the fact that P.Ws.1 to 3 have not supported the prosecution case and the discrepancies in evidence of P.W.5, the informant and the evidence of P.W.9-I.O. and P.W.10-the doctor and non-examination of the son of the petitoner and the tractor driver and the provision of Section 401 (3) of Cr.P.C., I am not satisfied that this is not a fit case for interfering with the judgment of acquittal and remanding the case to the learned court below for retrial twenty two years after the alleged incident. 9. The CRLREV is accordingly dismissed. 10. Urgent certified copy of this order be granted on proper application. puspa (Savitri Ratho) Judge Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 19-Apr-2024 17:48:11 Page 6 of 6