Criminal Appeal No. 21 of 2003 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 212 of 2006 An application under Section 401 of the Code of Criminal Procedure challenging the judgment and order dated 21.08.2003 of learned Judicial Magistrate First Class, Bhadrak in I.C.C. Case No.150 of 2001 (Trial No. 468 of 2001) and the judgment and order dated 20.03.2006 of learned Addl. Sessions Judge, Bhadrak in Criminal Appeal No.21 of 2003. -------------- Smt. Manjulata Sutar ..…. Petitioner -versus- 1. Madan Mohan Nayak 2. Lokanath Nayak …… Opp. Parties --------------------------------------------------------------------------- For Petitioner : Mr. K.K. Sethi, Adv. on behalf of Mr. B.S. Dasparida, Adv. For Opp. Parties ---------------------------------------------------------------------------- : Mr. D.P. Pattanaik, Adv. CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 06.03.2024 Savitri Ratho, J This application under Section 401 of the Code of Criminal Procedure has been filed challenging the judgment and order dated 20.03.2006 passed in Criminal Appeal No. 21 of 2003 by the learned Additional Sessions Judge, Bhadrak setting aside the conviction of the Opp. Party No. 1 & 2, by the learned J.M.F.C., CRLREV No. 212 of 2006 Page 1 of 8 Bhadrak in 1.C.C. Case No. 150 of 2001/Trial No. 468 of 2001 on 21.08.2003 for commission of the offences punishable under Sections 504/294/34 of the IPC and sentence to pay a fine of Rs.500/- each for the offence committed under Section 294 of IPC and fine of Rs.500/- each for the offence committed under Section 504 of the IPC and in default to undergo S.I for two months. PROSECUTION CASE 2. The allegation against the accused persons are that they are father and son and on 07.03.2001 their calf of the accused persons entered into the paddy field of the complainant and damaged the paddy crop. The complainant brought the calf and gave its zima to the accused persons and requested them not to allow the calf to move out. On 09.03.2001 at 1.30 p.m., while the complainant was going towards the tube-well to fetch water, the accused persons restrained her and abused her and dragged her by holding her hand and assaulted her with fist blows and slaps and squeezed her neck and threw away her earthen pot causing loss of rupees ten. The complainant reported the matter at Dhusuri P.S. on 09.03.2001. Due to inaction of the police, the complainant filed the ICC case and the opposite parties stood trial for commission of offence punishable under Sections 323/504/294/34 of IPC. CRLREV No. 212 of 2006 Page 2 of 8 WITNESSES 3. The complainant examined three witnesses, while the accused persons examined one witness.
Legal Reasoning
TRIAL COURT JUDGMENT 4. The learned trial Court framed four points for determination. (i) Whether on dt.8.3.2001 at 1.30 p.m., both the accused persons obstructed the way of the complainant in furtherance of their common intention ? (ii) Whether on the same date, time and place, they both abused her in filthy language causing annoyance of their common intention ? (iii) Whether on the same date, time and place, both the accused persons intentionally insulted the complainant with intention to provoke and to break peace in furtherance of their common intention ? (iv) Whether on the same date, time and place, both the accused persons voluntarily caused hurt to the complainant in furtherance of their common intention ? 5. The learned Trial Court acquitted the accused persons from the charge under Section 323 of IPC but convicted them for commission of the offence under Section 294/504/34 of I.P.C and sentenced them to pay a fine of Rs 500/- each for the offence under Section 294 of IPC and in default to undergo S.I. for two months, CRLREV No. 212 of 2006 Page 3 of 8 with a direction that Rs 500/- from the fine amount, if realized would be given to the complainant. APPELLATE COURT JUDGMENT 6. The learned Appellate Court held that both the offenses are not made out, even if the evidence of P.Ws. 1 to 3 are accepted. That apart the delay of two months in filing the complaint and not calling for the FIR lodged by the complaint on 09.03.2001 at Dhusuri Police Station would render the evidence of P.Ws. 1, 2 and 3 as fabricated and unbelievable. It held that the trial Court fell into error in assessing the evidence and therefore, the impugned judgment was wrongly passed. The impugned judgment of conviction and sentence were set aside and the accused were acquitted. SUBMISSIONS 7.
Legal Reasoning
Mr. K.K. Sethi, learned counsel appearing on behalf of Mr. B.S. Dasparida, learned counsel for the petitioner submits that the learned Appellate Court should have taken into consideration the evidence of P.Ws. 1, 2 and 3 basing on which the learned trial Court has reached at a conclusion that all the witnesses have corroborated their version regarding the occurrence. He further submits that the learned Appellate Court should have also taken CRLREV No. 212 of 2006 Page 4 of 8 into consideration the observation made by the learned trial Court after perusal of the evidence of complainant, that the complainant has explained the delay in filing the petition satisfactorily. He also submits that the Appellate Court should have also taken into consideration the complaint petition filed by the complaint, where she has stated that she has requested the opposite parties to take care of their calf on 07.03.2001 and the occurrence has taken place on 08.03.2001, i.e. on the next day, while she was approaching the tube-well, which clearly shows that it is an intentional insult. 8. Mr. D.P. Pattanaik, learned counsel for the opposite parties submits that there is no illegality or perversity in the impugned judgment so as to warrant interference in a revision against acquittal, as the scope of interference is very limited. EVIDENCE 9. In order to decide whether the impugned judgment of the Appellate court is perverse and liable for interference, it is necessary to peruse the evidence on record. 9.1 P.W.1 Smt. Manjulata Sutar is the complainant has stated that the occurrence took place about one year and three months back at about 1.30 p.m. near a tube well situated 300 feet away from her house. While she was going to bring water, both the CRLREV No. 212 of 2006 Page 5 of 8 accused persons abused her in obscene language and accused Madan Mohan pulled her and felled her to the ground. Accused Loknath came and squeezed her throat. Due to the assault, she felt pain and tenderness all over the body. She has further stated that both the accused persons assaulted her by means of kicks and slaps. On the next day, she had reported the matter before the police station. 9.2 P.W.2 Nanda Nayak is an occurrence witness stated that on 07 or 08.02.2001 at about 1.30 p.m. while the complainant was going to bring water from the tube-well, the accused Madan Nayak abused her obscene language and dealt her push blows for which she fell down on the ground and then he caught hold her tuft of hair and then the accused Loknath also abused her. 9.3 P.W.3 Narendra Mallik is the independent witness stated that on 08.03.2001 at about 1.30 p.m., the occurrence took place and has corroborated the version of P.W.2 regarding the occurrence. 9.4 D.W 1 Muna Mallik has stated that he knows both the parties in the case and no such occurrence had taken place as stated by P.W.1 and he does not know who is the complainant and also is the accused in the case. CRLREV No. 212 of 2006 Page 6 of 8 ANALYSIS AND DISCUSSION 10. It is no longer res integra that the scope of interference in an appeal or revision against acquittal is very limited. It has been held by the Supreme Court in numerous decisions that if two views are reasonably possible on the evidence - one in favour of acquittal and the other in favour of conviction, and the accused persons have been acquitted by the trial Court or Appellate Court, the High Court should not reverse the order of acquittal by substituting the order of acquittal with its own view. It has also been held in a number of decisions that the presumption of innocence which is available to an accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law, is reinforced and re-affirmed when he or she is acquitted and there is double presumption of innocence in favour of such accused. It has also been held that in view of the provisions in Section 401 (3) of the Cr.P.C., while exercising revisional jurisdiction, the High Court has no jurisdiction to convert a finding of acquittal into one of conviction. If the High Court does not agree with the finding of acquittal, the only course open to the High Court is to give its own CRLREV No. 212 of 2006 Page 7 of 8 finding and thereafter remit the matter either to the trial Court or to the first appellate Court, as the case may be. 11. In the case of State of Karnataka vs. K. Gopalkrishna :(2005) 9 SCC 291, the Supreme Court, while deciding an appeal against acquittal has observed as follows : “In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal.” 12. Considering the scope of a revision against acquittal and the nature of evidence adduced by the complainant and as the view of the Appellate Court is a possible view, I do not consider it to be a fit case to interfere with the judgment of acquittal passed by the learned Appellate Court. 13. The Criminal Revision is accordingly dismissed. .………………… (Savitri Ratho, J) Orissa High Court, Cuttack. The 6th March, 2024. S.K. Behera, Senior Stenographer. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 11-Jun-2024 17:04:27 CRLREV No. 212 of 2006 Page 8 of 8