The High Court · 2023

Judgment

13.11.2023 -------------------------------------------------------------------------------------- M.S.SAHOO, J. The petition has been filed seeking leave U/s.378(1)(3) of the Cr.P.C., 1973 challenging the judgment/order of acquittal dated 31.01.2012 passed by the learned Sessions Judge, Phulbani in S.T. Case No.198/10 corresponding to Tikabali P.S.Case No.54 of 2009, acquitting the opposite parties who faced trial for charges under Sections 498-A/306/304-B/506/34 IPC and under Section 4 of DP Act.

2. The prosecution case in brief is that on 20.08.2009 the deceased herself lodged a written report which was // 2 // registered as Tikabali P.S. Case No.54 of 2009 for the offences under Sections 498-A/506/34 IPC and under section 4 of DP Act. Subsequently, the deceased while staying in her father’s house committed suicide on

20.09.2009. However, after investigation the police submitted charge-sheet in the aforesaid case under Sections 498-A/306/304-B/506/34 IPC and under Section 4 of DP Act.

3. Learned Addl. Govt. Advocate referring to the judgment passed by the learned trial court submits that the order of acquittal is unsustainable as it is against weight of evidence on record and has been passed without due application of judicial mind. Learned Addl. Govt. Advocate refers to the various paragraphs of the judgment, wherein the evidence rendered by the P.Ws. have been discussed.

4. Fourteen witnesses have been examined on behalf of the prosecution of whom P.Ws 1 and 9 are the co-villagers of the accused persons, P.W.2 is the father of the deceased, P.W.11 is the brother of the deceased, P.Ws.3, 4 and 12 are their co-villagers, P.W.6 is the maternal aunt of the deceased, P.W.13 is the maternal uncle of the deceased, P.W.7 is the autopsy surgeon who conducted post mortem examination. P.W.8 is a police Havildar of Tikabali P.S. and witness to the inquest over the dead body of the deceased and carrier of the same to District Headquarter Hospital, Phulbani for P.M., P.W.10 is the Executive Magistrate in whose presence the I.O. conducted // 3 // inquest over the dead body of the deceased, and P.W.14 is the I.O. No evidence was adduced on behalf of the accused persons.

5. Learned trial court framed the following issues for determination :- (i). Whether the death of the deceased Lima Sahu was homicidal, suicidal, natural or otherwise? (ii). Whether after marriage of the deceased Lima Sahu on 28.1.2009 with accused Mantu Behera the accused persons who are her husband and in- laws in furtherance of their common intention subjected her to cruelty and torture demanding cash of Rs.1,30,000/-? (iii). Whether after marriage of deceased Lima Sahu with accused Mantu Behera on 28.1.2008 the accused persons who are her husband and in- laws in furtherance of their common intention demanding cash of Rs.1,30,000/- subjected her to torture and cruelty and caused her death ? (iv). Whether after marriage of deceased Lima Sahu on 28.01.2008 with accused Mantu Behera, the accused persons who are her husband and in- laws subjected her torture and cruelty demanding cash of Rs.1,30,000/- as dowry and abated commission of suicide by her ? (v). Whether after marriage of the deceased with accused Mantu Behera on 28.1.2008 the accused persons who are her husband and in-laws // 4 // demanded cash of Rs.1,30,000/- as dowry from the parent of the deceased ?

6. Learned court after discussing all the evidence and other circumstances has come to the conclusion that the death of the deceased was suicidal. Thereafter, the learned court has discussed the evidence presented by the prosecution in order to bring home the charges alleged i.e. U/s.304-B/498-A of IPC and the allied offences as indicated.

7. This Court has the occasion to refer to the cross- examination of the P.Ws. particularly P.Ws.6, 9, 11 and 13 and also has noticed the Examination-in-Chief P.W.3 and 4 where they did not support the prosecution case as far as demand of dowry is concerned. Learned Addl. Govt. Advocate fairly refers to the statements recorded in cross-examination of the P.Ws. 6, 9, 11 and 13.

8. In Anwar Ali v. State of H.P., (2020) 10 SCC 166 : 2020 SCC OnLine SC 776 (at page 179 of SCC), the law on the appeal against acquittal and the scope and ambit of Section

Legal Reasoning

378 CrPC and the scope of interference by the High Court in an appeal against acquittal was considered by the Hon’ble Supreme Court and it has been held:-

14.1. In Babu [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 CrPC. In paras 12 to 19, it is observed and held as under: (SCC pp. 196-99) “12. This Court time and again has laid down the guidelines for the High Court to // 5 // is entitled interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. [Balak Ram v. State of U.P., (1975) 3 SCC 219 : 1974 SCC (Cri) 837] , Shambhoo Missir v. State Bihar [Shambhoo Missir v. State of Bihar, (1990) 4 SCC 17 : , Shailendra 1990 Pratap v. State U.P. [Shailendra Pratap v. State of U.P., (2003) 1 SCC 761 : , Narendra SCC 2003 Singh v. State M.P. [Narendra Singh v. State of M.P., (2004) 10 SCC 699 : 2004 SCC (Cri) 1893] , Budh Singh v. State of U.P. [Budh Singh v. State of U.P., (2006) 9 SCC 731 : (2006) 3 SCC (Cri) 377] , State of U.P. v. Ram Veer Singh [State of U.P. v. Ram Veer Singh, (2007) 13 SCC 102 : (2009) 2 SCC (Cri) 363] , S. Rama Krishna v. S. Rami Reddy [S. Rama Krishna v. S. Rami Reddy, (2008) 5 SCC 535 : (2008) 2 SCC (Cri) 645] (2009) , Arulveluv. State [Arulvelu v. State, 10 SCC 206 : (2010) 1 SCC (Cri) 288] , Perla Somasekhara Reddy v. State of A.P. [Perla Somasekhara Reddy v. State 518] 432] SCC (Cri) (Cri) (Underlined to Supply Emphasis) // 6 //

Decision

entire importance the appeal was rightly ‘10. Once entertained against acquittal, the High Court was entitled to reappreciate evidence independently and come to its own conclusion. Ordinarily, the High Court would give due opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule the present case where the Sessions an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.’ applicable Judge In Sambasivan [Sambasivan v. State of 31.1. Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] , the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not (Underlined to Supply Emphasis) // 12 // record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) the High Court. While ‘8. We have perused the judgment under appeal to ascertain whether the High Court has conformed the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972] viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at demonstrably unsustainable and whether it are (Underlined to Supply Emphasis) // 13 // judgment the judgment of the appellate court is free from those infirmities; if so to hold that the warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.’ In K. Unnithan [K. Ramakrishnan 31.2. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309 : 1999 SCC (Cri) 410] , after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not relevant/material justified evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an in discarding // 14 // order of acquittal passed by the learned Sessions Judge.

31.3. In Atley [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653] , in para 5, this Court observed and held as under: (AIR pp. 809-10) ‘5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this (Underlined to Supply Emphasis) // 15 // connection the very cases cited at the Bar, namely, Surajpal Singh v. State [Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52] ; Wilayat Khan v. State of U.P. [Wilayat Khan v. State of U.P., 1951 SCC 898 : AIR 1953 SC 122] ) In our opinion, there is no substance in the contention raised on behalf of the appellant justified in reviewing the entire evidence and coming to its own conclusions.’ Court High In K. Gopal Reddy [K. Gopal 31.4. Reddy v. State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305] , this Court has observed that where the trial court allows itself to be besetwith fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.” (emphasis supplied)

9. After going through the evidences of the P.Ws., as referred in paragraph seven above and applying the principles enunciated in Anwar Ali (supra), in considered opinion of this Court, the finding returned by the learned trial court acquitting the persons cannot be faulted with. In the further opinion of this Court no case has been made out by the petitioner for grant of leave to appeal.

10. The petition is disposed of accordingly. Orissa High Court, Cuttack The 13th November, 2023/RRJena Signature Not Verified Digitally Signed Signed by: RADHARANI JENA Designation: Personal Assistant Reason: Authentication Location: OHC Date: 04-Jan-2024 10:47:39 …………………… M.S.Sahoo, J.