MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GA NO.07 OF 2001 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 8th April 1997 passed by the learned Sessions Judge, Sambalpur in Sessions Trial Case No.03 of 1996. ---- State of Odisha …. Appellant -versus- Biseswar Naik & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ====================================================== For Appellant -
Legal Reasoning
Mr. P.K. Maharaj, Additional Standing Counsel. For Respondents - Mr. D.K. Mohapatra, Advocate. CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH DATE OF HEARING:26.07.2024 :DATE OF JUDGMENT: 20.08.2024 D.Dash,J. The State of Odisha having filed this Appeal under section 378(1)(3) of the Code of Criminal Procedure, 1973 has assailed the judgment of acquittal dated 8th April 1997 passed by the learned Sessions Judge, Sambalpur in Sessions Trial Case GA NO. 07 OF 2001 Page 1 of 8 No.03 of 1996. The Respondents having faced the trial for commission of offence under section 302 read with section 34 of the Indian Penal Code, 1860 (for short hereinafter called as ‘the IPC’), all of them have been acquitted of the said charge and it is only the Respondent No.3, who has been held guilty for commission of offence under section-304-II of the IPC and sentenced to undergo rigorous imprisonment for seven (7) years. In this Appeal prayer before this Court is for interference with the acquittal of the Respondents (accused persons) in seeking their conviction for the offence under section-302/34 of the IPC and consequential imposition of the sentence. 2. Prosecution case is that before the incident, the accused- Biswanath had abused the deceased and his daughter. It is stated that on 13th March 1995, around 7 pm, the Informant- P.W.2 and the deceased when were going to the house of accused-Biswanath to ask him as to why he had so abused, on the way, they met accused persons-Biswanath and Biseswar. On being asked, the accused persons became angry, started assaulting to the deceased, who is the father of the Informant (P.W.2) and the Informant (P.W.2). They assaulted the deceased by means of lathi and the deceased therefore ran towards his house and P.W.2 followed him. It is further stated that accused- Soukilal Naik came with a Barchhi (M.O.-I) and gave stabbing GA NO. 07 OF 2001 Page 2 of 8 blow on the back of the deceased, receiving which the deceased fell down near the tube-well situated under the house of P.W.2 and met his death. The son of the deceased (P.W.2) then having lodged a written report with the local Police Station investigation commenced. On completion of investigation these accused persons were placed to face the trial for commission of offence under section-302/34 of the IPC. Accordingly, they being charged for the said offence and faced the Trial. 3. In the Trial, the prosecution has examined in total nine (9) witnesses, whereas the defence has examined one witness on his behalf. That apart, the prosecution has proved several documents which have been admitted in evidence and marked Exts.1 to 17. Out of them, the star witness is the Informant (P.W.2). 4. The Trial Court having examined the evidence on record and upon their analysis from different angles has finally concluded that the prosecution has failed to establish the charge against all the accused persons. So, all have been acquitted of the said charge and it is only the Respondent No.3, for his individual act has been held guilty for commission of offence under section-304-II of the IPC and he has been sentenced to rigorous imprisonment for seven (7) years. GA NO. 07 OF 2001 Page 3 of 8 5. Learned Counsel for the State submitted that the appreciation of evidence as has been done by the Trial is wholly perverse. The prosecution having proved through clear, cogent and acceptable evidence that all the accused persons in furtherance of their common intention had assaulted the deceased to death, although the fatal injury was caused by the accused Soukilal; the Trial Court ought not to have acquitted the two accused persons namely, Biswanath and Biseswar and held accused Soukilal liable for the offence under section-304-II of the IPC. Therefore, he contended that the Trial Court having committed grave error in acquitting the accused persons, the finding of acquittal warrants interference. 6. Learned Counsel for the Respondents-accused persons submitted all in favour of the findings returned by the Trial Court in saying that those are the outcome of just and proper appreciation of evidence and there surfaces no such perversity so as to term the conclusions as perverse. He in support of the above, invited the attention of this Court to the deposition of the eyewitness (P.W.2) and other witnesses and side by side the discussion made by the Trial Court in the said evidence in arriving at the conclusion. 7. Keeping in view the submissions made; we have carefully read the impugned judgment. We have also extensively GA NO. 07 OF 2001 Page 4 of 8 travelled through the depositions of all the witnesses i.e. P.W.1 to P.W.9 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 17. 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; (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 GA NO. 07 OF 2001 Page 5 of 8 (d) the accused is entitled to reasonable benefit of doubt, a doubt which a thinking man will reasonably, honestly and consciously entertain. 9. Proceeding to address the rival submissions in ascertaining as to whether the acquittal of accused persons namely, Biswanath and Biseswar and the charges under section- 302/34 of the IPC within the scope and ambit of interference in this acquittal Appeal as laid down above, we first of all find that the Trial court has entertained great doubt as regards the role of accused Biswanath and Biseswar in assaulting the deceased by lathi. The evidence of the Doctor (P.W.1) does not stand to corroborate the prosecution version on that score as presented by the witnesses. The deceased having received fall on the ground when abrasion were bound to take place, the Doctor’s evidence does not stand to on that effect. Furthermore, that incident wherein these two accused persons are implicated has no nexus with the second round of the incident wherein the role of accused Soukilal comes. When there is no other corroboration we are not in a position to accept the submission that said finding of the Trial Court exonerating accused-Biswanth and Biseswar is the outcome much less to say that it was on account of faulty appreciation of evidence. GA NO. 07 OF 2001 Page 6 of 8 10. In so far as the Trial Court’s view that accused-Soukilal for the role played and act done in the incident is liable under section-304-II of the IPC and not under section-302 of the IPC, we find the discussion of evidence has been made by the Trial Court at paragraph-14 of its judgment. The result of solitary blow upon the deceased is said to have caused to the death and the author of the same was that accused-Soukilal has been accepted. The evidence on record do not reveal that after that solitary blow falling upon the deceased that accused Soukilal, even had attempted to give the second one. It is the borne out from evidence that there was quarrel and at the spur of the moment, accused Soukila has given the blow without even knowing as to where the blow would be falling. In that view of the matter, the Trial Court having taken the view that the element of intention to cause of death was absent on the part of the accused-Soukilal, although he had the knowledge that by assaulting the deceased on the back by means of Barchhi (M.O.- I), a fatal injury would be caused. We do not find any infirmity with the same much less to say any perversity when it is further seen with the fact that the parties hail from rural background, where usually their temper run high and many a time, they behave unexpectedly for silly reason that to in an aggressive manner. We find that the Trial Court in arriving at said conclusion has neither overlooked any such material evidence GA NO. 07 OF 2001 Page 7 of 8 from being taking into consideration nor to have read anything extraneous into the evidence in arriving at a such conclusion. Therefore, we find that the conclusion of the Trial Court do not suffer from the vice of perversity so as to warrant interference in this Appeal. 11.
Decision
In the result, the Appeal stands dismissed. V. Narasingh, J. I Agree. Narayan (D. Dash), Judge. (V. Narasingh), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 22-Aug-2024 18:46:43 GA NO. 07 OF 2001 Page 8 of 8