MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK G.A. No.11 of 2000 In the matter of an Appeal under Section 378 (3) of the Code of Criminal Procedure, 1973 and from the judgment of acquittal dated 19th December, 1997 passed by the learned Second Additional Sessions Judge, Berhampur in Sessions Case No.45 of 1996 (S.C. No.256/96 [GDC]). State of Orissa ---- -versus- …. Appellant Matta Appaya Patro & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode) For Appellant - Mr.G.N. Rout, Additional Standing Counsel For Respondents - Mr.S.D.Das, Senior Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 06.03.2024 : Date of Judgment : 22.03.2024 D.Dash,J. The State of Orissa, in this Appeal, call in question the judgment of acquittal dated 19th December, 1997 passed by the learned Second Additional Sessions Judge, Berhampur in
Facts
Sessions Case No.45 of 1996 (S.C. No.256/96 [GDC]) arising out of G.R. Case No.1156 of 1995 corresponding to Golanthara P.S. Case G.A. No.11 of 2000 Page 1 of 12 - 2 - No.147 of 1995 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Berhampur. The Respondents, being arraigned as accused persons, faced the trial for commission of the offences under sections 148/302/149 of the IPC and section 25 of the Arms Act read with section 149 of the IPC. The Trial Court, having gone through the evidence let in by the prosecution by examining seven witnesses as also the solitary defence witness and on perusal of the documents admitted in evidence from the side of the prosecution (Exts.1 to 21), has finally come to the conclusion that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubt. This is now under challenge in this Appeal by the State. It is pertinent to mention here that during pendency of this Appeal, the Appellant No.5, namely, Datti Sima Patro, having died; this Appeal has abated as against him. So, now this Appeal is confined to Appellant Nos.1 to 4 and 6. 2. Prosecution Case:- On 25.12.1995, Susanta Bisoyi (Informant-P.W.3) had gone to the house of Bairagi Patra for discussion with regard to their brick kiln. Susanta met Bairagi just at the approach of the Village when Bairagi and Poteya (P.W.5) were coming on a cycle from the village side. Then all the three went to the house of Gokarneswar Rath and from there to the brick kiln. Gokarneswar Page 2 of 12 G.A. No.11 of 2000 - 3 - remained at the brick kiln whereas Santosh (Informant), Bairagi (deceased) and Poteya (P.W.5) to Konisi Hat (market) on two cycles. Susanta was on one cycle whereas that Bairagi (deceased) and Poteya (P.W.5) were on another. Susanta (Informant-P.W.3) was going ahead of them. It was around 8.30 p.m., they reached near the cinema hall situated near Konini Hat and when Susanta (Informant-P.W.3) was at a distance of ten feet ahead of Bairagi (deceased) and Poteya (P.W.5), he heard the cry of Bairagi (deceased). So, he stopped his cycle and when he looked back, he found Bairagi (deceased) on the ground and his cycle was lying near him and that Poteya (P.W.5), who was coming with Bairagi (deceased) was seen to be running away from that place. Susanta (Informant-P.W.3) then saw accused Karama dealing blows upon Bairagi (deceased) by means of a sword and other accused persons, being armed with Khanda Kati, were also assaulting Bairagi (deceased). It is further stated that at that time, four to five other persons, being armed with Khanda Kati were standing nearby. Susanta (Informant-P.W.3), out of fear went to Konisi Hat on his cycle and therefrom, he returned to Ambapur via another road. He informed the incident to the wife and mother of Bairagi (deceased) as well as Gokarneswar and others. Thereafter, with the wife and mother of Bairagi (deceased), Gokarneswar and others, he went to the spot. It was then found that Bairagi (deceased) was lying dead on the ground with injuries on his G.A. No.11 of 2000 Page 3 of 12 - 4 - legs, hands and head. The left palm of Bairagi (deceased) had been completely cut and removed and was not traced nearby. Susanta then went to Golanthara P.S. and lodged a written report with the Sub-Inspector (S.I.) of Police (P.W.7) Golanthara P.S., who, in the absence of Officer-in-Charge of said P.S., treated the same as FIR (Ext.3) and upon registration of the criminal case, took up the investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.7) examined the Informant (P.W.3) and recorded his statement under section 161 of Cr.P.C. Having visited the spot, the I.O. (P.W.7) prepared the spot map (Ext.10). He (P.W.7) then held the inquest over the dead body of the deceased and prepared the report (Ext.4) and sent the same for post mortem examination by issuing necessary requisition (Ext.11). On the same day, he (P.W.7) seized the bloodstained earth and sample earth under the seizure list (Ext.12). The custody remand request of the I.O. (P.W.7), being allowed by the S.D.J.M., Berhampur, he (P.W.7) took the custody of the accused persons. During interrogation, pursuant to the statements of accused persons, the I.O. (P.W.7) recovered Khanda Kati, Sword, Cycle, Tangi, Parusuram Tangi and Bamboo Lathi. The seized incriminating articles were sent for chemical examination through Court. On 06.04.1996, the I.O. (P.W.7) submitted the Final Form placing these accused to face the Trial for commission of the offences. G.A. No.11 of 2000 Page 4 of 12 - 5 - 4. Learned S.D.J.M., Berhampur, 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 these Respondent-accused persons. 5. The prosecution, in support of its case, has examined in total seven (7) witnesses during Trial. As already stated, the informant, who is an eye witness to the occurrence and had accompanied the deceased to Konisi Hat, has been examined as P.W.3. P.W.1 is a post-occurrence witness. The Doctor, who held the autopsy over the dead body of the deceased is P.W.2. P.W.4 is the wife of the deceased. P.W.5 is also an eye witness to the occurrence. The I.O. of the case, at the end, has come to the witness box as P.W.7. 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 21. Out of those; important are the FIR (Ext.3); inquest report (Ext.4); post mortem report (Ext.1); and the spot map (Ext.10). The chemical examiner’s report had been admitted in evidence and marked Ext.21. 6. The accused persons, having taken the plea of complete denial and false implication, have also examined one witness, G.A. No.11 of 2000 Page 5 of 12 - 6 - who has stated that the deceased, informant & P.W.5 were in inimical terms with.
Legal Reasoning
view is not permissible to be taken by this Court in seisin of this Appeal against the acquittal. 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 7) and defence (D.W.1) and have perused the documents admitted in evidence marked as Exts.1 to 21. 10. Before proceeding to address the rival submissions, we would like to put 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 G.A. No.11 of 2000 Page 7 of 12 - 8 - 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:- are there 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 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. On 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. G.A. No.11 of 2000 Page 8 of 12 - 9 - The Informant (P.W.3), who was going ahead of the deceased and Poteya (P.W.5) on a separate cycle, has stated to have seen the accused Karama and Baluda with others assaulting Bairagi (deceased) by means of Khanda Kati. This witness has further stated during cross-examination to have found seven to eight persons giving blows to Bairagi (deceased). He has again stated to have not disclosed during his statement recorded in course of investigation that after staying some time at Konisi, he proceeded towards Berhampur and on the way, he got down near Konisi Hat around 10.00 am and heard that the deceased was killed by his rivalry group of on Konisi-Tulu road and that therefrom he came to an advocate and with him, proceeded to the spot on a scooter and that he had stated to have known the names of the enemies of the deceased and accordingly, had raised his suspicion as to their involvement. This has been proved through the I.O. (P.W.7). When in the earlier statement, P.W.3 has not disclosed to have seen the occurrence in his own eyes, during trial, it appears to be a development and, therefore, the same, according to us, is a material contradiction, which shakes the credibility of this witness (P.W.3). When P.W.3 states to have disclosed the incident before the wife of the deceased examined as P.W.4. She (P.W.4) states that she was informed by Rabi Behera and then by P.W.3. At the same time, P.W.3 does not state that by G.A. No.11 of 2000 Page 9 of 12 - 10 - the time, he informed (P.W.4) about the incident, she had already been informed by someone-else. The next important witness is P.W.5, who has also been projected as the eye witness and as per the case of the prosecution, he was accompanying the deceased riding the cycle with him. He has named several accused persons and they are Baluda, Sima, Karama, Narasinga, Appeyya and Raghu. As per his evidence, accused Sima (since dead) and Baluda had guarded them. It is his evidence that having seen the assault upon the deceased, he threw the cycle at the place and ran away out of fear. This witness states that he heard about the death of Bairagi two days after and then had gone to Village-Ambapur and P.S. As per his evidence, he was in the same group of which Bairagi (deceased) was a member. He has not disclosed the incident to any of the passengers he met in the bus or even at Berhampur or even at Palur. It is his evidence that being called by the police two days after the occurrence, he had been to the P.S. The conduct of this witness is not responsive and rather unnatural although he has denied to have not stated earlier that near cinema hall, accused Sima (since dead) and Baluda suddenly appeared before them and they guarded, this has been proved through the I.O. (P.W.7). P.W.5 has also not stated in his earlier statement that apprehending danger to his life, he remained silent for two days. He had also not stated to have gone with Bairagi to Konisi Hat G.A. No.11 of 2000 Page 10 of 12 - 11 - and there, Bairagi went for a shave and he remained in the Hat and Bairagi after shaving when with him was going to Village- Konisi, they had sat on the verandah of one D. Baya and gossiped for some time and thereafter went to the threshing floor of another. All these have been proved to have been stated by this witness before the I.O. (P.W.7). P.W.6 is the maternal uncle-in-law of the deceased and he is not an eye witness to the occurrence. He is an eye witness to the recovery of articles said to have been made at the instance of the accused persons. 12. It is the settled position of law that the accused persons have the right to challenge the testimony of the witnesses with regards to their earlier statement recorded during investigation as those being so recorded at the earliest point of time. It is also settled law that such rights are available for testing the veracity of the witnesses examined during trial. Though the same are not substantive evidence, the Court below, while undertaking the task of testing the credibility of the witnesses, with reference to the earlier statement is called upon to see as to whether there surfaces the contradictions and if so, whether those are material contradictions so as to raise doubt over the substratum of the evidence of the witnesses and also if any such omission is found in the earlier statement, which the witnesses has introduced during the Trial, the Court has the duty to see whether such G.A. No.11 of 2000 Page 11 of 12 - 12 - omission is amount to material contradiction so as to impeach the credibility of the witnesses. 13. With the available evidence on record, when we look at the discussion of the same, as has been made by the Trial Court as also the discussion of the evidence as we have made hereinabove, the conclusion stands that there surfaces no compelling reason to interfere with the order of acquittal against the accused persons, as has been returned by the Trial Court, so as to hold the impugned judgment of acquittal is the outcome of perverse appreciation of evidence in unjustifiably eliminating any material/admissible evidence and thereby, acquitting the accused persons. 14.
Arguments
7. Mr.G.N. Rout, learned Additional Standing Counsel for the State-Appellant submitted that the judgment of acquittal passed by the Trial Court, which has been challenged in this Appeal, is perverse. According to him, the discussion of evidence of the prosecution witnesses, as has been made by the Trial Court, on being carefully gone through, it would be clear that the same suffers from the vice of perversity. Placing, the deposition of prosecution witnesses (P.Ws.1 to 7), he contended that the view taken by the Trial Court could not have at all been so taken to discard the evidence. He, therefore, submitted that there are very good grounds for interference with the order of acquittal. 8. Mr.S.D. Das, learned Senior Advocate for the Respondents- accused persons except Respondent No.5 (since dead) submitted all in favour of the judgment of acquittal passed by the Trial court. According to him, the Trial Court, having recorded the evidence of the witnesses, has gone for a detail analysis of the same and by assigning very good reasons, has rightly found it unsafe to place reliance upon such evidence and thus has concluded that the prosecution has failed to establish the charge against the accused persons beyond reasonable doubt through such evidence as presented during trial. In support of the same, G.A. No.11 of 2000 Page 6 of 12 - 7 - he has taken us through the judgment at paragraph-5 where discussion of the evidence has been made by the Trial Court. He, therefore, submitted that the Trial Court, assigning very good reasons when has held the evidence of the witnesses to be unreliable, in the absence of any compelling reasons, a different
Decision
In the result, the Appeal stands dismissed. The judgment of acquittal dated 19th December, 1997 passed by the learned Second Additional Sessions Judge, Berhampur in Sessions Case No.45 of 1996 (S.C. No.256/96 [GDC]), are hereby confirmed. V.Narasingh, J. I Agree. (D. Dash) Judge (V. Narasingh) Judge Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 22-Mar-2024 17:00:52 Basu G.A. No.11 of 2000 Page 12 of 12