The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLLP No. 132 of 2007 An application under Section 378(1) & (3) of the Code of Criminal Procedure, 1973. State of Odisha -------------- ..…. -versus- Petitioner 1. Bhagaban Sabar 2. Jagnu Sahu 3. Dillip @ Magsira Dhibar 4. Dayanidhi Bag …… Opp. Parties ----------------------------------------------------------------------------- For Petitioner :Ms. S. Mishra, A.S.C. For Opp. Parties : Mr.Rabindra Kumar Sahoo, Advocate (for O.P. Nos. 2 to 4) ----------------------------------------------------------------------------- CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 30.05.2025 Savitri Ratho, J. This application under Section 378(1) & (3) of the Cr.P.C. has been filed challenging the judgment dated 03.04.2007 passed by the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Bargarh in S.T. Case No. 176/06 of 2006 -07 acquitting the Opp. Parties 1 to 4 from the charge under Sections 399, 402 of the IPC. CRLLP No. 132 of 2007 Page 1 of 13 PROSECUTION CASE 2. The prosecution case in brief is that the O.I.C., Bargarh P.S. received a reliable information on 22.03.2006 over phone that a gang of criminals consisting of 5 to 6 members of Bolangir, Nuakhuli and Bargarh areas have assembled near railway over bridge Panichhatar and were making preparation for committing dacoity near Saraswati Enclave in the house of Gajendra Behera. He went to the spot along with his staff, A.S.I., havildar and home guards. He took two witnesses namely Bije @ Bijaya @ Hadu Sharma and one Ajit Saha and reached the spot at 2.00 AM. He found the persons assembled there near the Railway over bridge. They surrounded the spot and on seeing the police party, the persons who had assembled there tried to escape but were apprehended by the police. On being asked repeatedly, they disclosed their names and identity to be Bhola Naik, Bhagaban Sabar, Jugunu Sahu, but they were unable to give any answer for assembling there in the odd hours of the night. They disclosed the name of other offenders who fled from the spot to be Dillip @ Magsira Dhibar, Dayanidhi Bag. On further interrogation they stated that they were preparing for committing dacoity in the house of Gajendra Behera. During their personal search in presence of the witnesses one sword, one knife, one iron rod, two half consumed I.D. liquor bottles, five empty bottles of I.D. liquor and some mixture was recovered from CRLLP No. 132 of 2007 Page 2 of 13 them. A case was registered on the information of P.W.3-O.I.C., Bargarh P.S. and after investigation charge sheet has been submitted. 3. During course of trial, the prosecution examined seven witnesses. No witness was examined by the defence. 4.
Facts
The prosecution exhibited two documents. Ext.2 is the FIR, Ext.1/1 is the seizure list. WITNESSES 5. P.W.1-Ajit Kumar Saha is a witness to seizure. He has stated that he knows the accused persons and about one year back he was present in his shop (hotel) and the accused persons were standing there when police came and caught hold of them, and he does not know anything about the case. Further he has stated that police brought the accused persons with them. P.W.2-Radha Charan Mishra is A.S.I. of police. He has stated that on 21.02.2006 he was attached to Bargarh P.S. as A.S. I. and that day he along with other police officers and the O.I.C. Proceeded to Panichhatar railway crossing by police jeep and found about 5 to 6 persons were sitting by the side of the road and were taking liquor and a sword was kept at the spot. The O.I.C. called two of them and when went to the spot, those persons ran away. They chased and caught three of them. Being asked by the O.I.C. they said that they were making CRLLP No. 132 of 2007 Page 3 of 13 preparation for committing dacoity. He has also stated that the name of one of the culprits is Bhagaban. Being asked by the police the accused persons said that there three other persons had absconded. The O.I.C. seized empty liquor bottles and sword and prepared the seizure list and brough the accused to the P.S. In the cross examination he has stated that he had not caught any of the accused nor he is able to say which police men caught hold of the accused persons. The sword and the empty liquor bottles were found in an open place. He said, he is not able to say who had kept the empty liquor bottles and the sword at the spot. At the time of seizure one witness namely Sharma was present. P.W.3-Sujit Kumar Pradhan is the informant in this case. He was the OIC of Bargarh Police Station. He has stated that on getting information, he along with his staff proceeded to the spot in police jeep and on the way, he picked up two persons namely Bijaya Sharma and Ajit Saha as witnesses. He conducted raid and after reaching the spot he found five persons were sitting and taking liquor near the by-pass level crossing. They chased them and caught hold of three of them and two of them escaped. Out of the three culprits apprehended by them. Bhagaban Sahu was present and the other two were apprehended subsequently. Accused Jugunu Sahu was apprehended first along with accused Bhagban. On search they recovered one sword from the possession of Bhola Nayak, one Bhujali from Bhagaban and one iron CRLLP No. 132 of 2007 Page 4 of 13 piece from the possession of Jugunu Sahu. The accused persons admitted that they were making preparation for committing dacoity in the house of Gajendra Behera. They disclosed that two others namely Dayanidhi Bag and Dillip Dhibar were present with them but fled. He sent the report to the P.S. through A.S.I. R.C. Mishra for registration of the case. In the cross-examination he has stated that by the time they arrived at the spot, the culprits were taking liquor on the roadside. P.W.4-Chaitanya Bariha has stated that on 21.03.2006, he was attached to Bargarh P.S and on that day at about 1.30 to 2.00 AM in the night, the O.I.C. got information and asked them to proceed for the purpose of raid. They went to Panichhatar and found 4 to 5 persons were sitting near the level crossing of Panichhatar. On seeing the police jeep they started running. Although he was present all along, he had not caught and brought them to the P.S. One knife, one iron rod and some thing was recovered from them. In the cross-examination he has stated that about 6 to 7 persons went with the O.I.C. in the police jeep. After the culprits were apprehended, one Satpathy home guard and himself went to call two persons from their house. Till they arrived with the witnesses the informant along with other police staff were present at the spot. CRLLP No. 132 of 2007 Page 5 of 13 P.W.5-Subrat Satpathy has stated that on 21.03.2006 he was working as home guard and was performing night duty. On that day at about 1.00 to 2.00 AM, in the night being asked by the O.I.C. he along with the staff accompanied the O.I.C. and went to Panichhatar. Near bridge they found 4 to 5 persons were gathered and were discussing something. On seeing the police jeep, those persons started running. They chased the culprits and caught hold of three of them and others were fled away. On search, they recovered one iron rod, one knife and one sword. The length of the sword will be about three feet and they brought the culprits to the P.S. In the cross-examination he has stated that during his presence at the spot only police and the culprits were present and none else was present. He found 4 to 5 persons were smoking cigarette. In the cross-examination he has stated that he had no prior acquaintance with those culprits and 4 to 5 persons were discussing standing under the over bridge. The distance between the level crossing and the place where the culprits were discussing will be about half k.m. They got down from the jeep and caught hold of the culprits. Those two persons ran towards the bazar area. He is unable to say what the O.I.C. was asking the culprit. P.W.6-Upendra Joshi, ASI of police has stated that they went with the OIC to the spot and apprehended the three accused persons standing in the dock. On search they recovered one sword, one iron rod CRLLP No. 132 of 2007 Page 6 of 13 and one bhujali. The sword was recovered from Bhagaban. This witness was asked to identity accused Bhagaban but he could not identify him. He is unable to tell the name or identify the accused persons by name. He has stated that the accused persons disclosed that they were making preparation for committing dacoity in the house of Gajendra Behera. The O.I.C arrested the accused persons and brought them to the P.S. In the cross-examination he has stated that from the spot they went to the house of Gajendra Behera but he does not remember who were guarding the accused during the period the O.I.C visited the house of Gajendra Behera along with O.I.C., B.N. Haripal were also went to the house of Gajendra Behera. He has also stated that he personally did not catch any of the accused. P.W.7- Biswanath Haripal is the I.O. in this case. He has stated that on 21.03.2006 he was working as S.I. of Police at Bargarh P.S. On that day in the night at about 1.42 PM the OIC received on information over telephone that a gang of criminals consisting of 5 to 6 persons have assembled under the over bridge N.H.6 Panichhatar and were making preparation for committing dacoity near Saraswati enclaves. The OIC made S.D. Entry bearing No.555 and he along with other police staff went to the spot. Two witnesses were arranged by the O.I.C. on the way near Ganesh rice mill. They reached the spot near the Railway over bridge Panichhatar and found 5 to 6 persons assembled CRLLP No. 132 of 2007 Page 7 of 13 there. They caught hold of three out of those persons and other three persons fled. The witness could identify the accused Bhagaban Sabar but he is not able to identify other accused persons. Subsequently he identified accused Magsira Dhibar but the third accused he could not identify. In the cross-examination he has stated that he conducted personal search and recovered one sword from accused Bhola Nayak and one knife was recovered from Jugunu Sahu. On being asked Bhola Nayak disclosed that they were making preparation for committing dacoity in the house of Gajendra Behera. In the cross-examination he has stated that he himself, O.I.C and all other police staff including driver numbering 8 went to the spot and the witnesses were taken by the OIC. Those two witnesses were taken by the OIC as aid and assistance to the police party. He had no prior acquaintance with those persons. The weapon of offences was seized from an open place. No other witnesses have been examined in this case. FINDINGS OF THE LEARNED TRIAL COURT 6. The fact of seizure of the weapon of offence like sword, iron rod and knife have not been proved. Even though the OIC, Bargarh Police Station, P.W.3 was present throughout and is the informant in this case, but P.W.7 was directed to take up the investigation after arrest of the accused persons. Therefore, the investigation made by CRLLP No. 132 of 2007 Page 8 of 13 P.W.7 cannot be treated to be fair and impartial. P.W.5 constable no.329 has stated that four to five persons were discussing standing under the bridge and were smoking and laughing amongst themselves. At best it can be said that the accused persons though present at the spot in odd hours of the night in an isolated place were discussing something but that does not mean that they were making preparation for committing dacoity. All the weapon of offence and liquor bottle seized it is not known why the prosecution did not produce it in the Court at the time of trial. The seizure witness P.W.1 has not supported the fact of seizure, but he has not been declared hostile. SUBMISSIONS
Legal Reasoning
Party No.2 to 4 relying on the decision of this Court in the case of State of Orissa (Vigilance) vs. Pradeep Kumar Das, reported in 2022(I), OLR, 104 and State of Orissa vs. Nalini Kanta Behera reported in 2022(I), OLR, 582 submits that in the case of acquittal where two views are possible, unless the view taken acquitting the accused persons is perverse, the appellate Court should not normally interfere with the said acquittal. JUDICIAL PRONOUNCEMENTS 9. The Privy Council in the case of Sheo Swarup v. King Emperor AIR 1934 PC 227, has held as follows : "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and CRLLP No. 132 of 2007 Page 10 of 13 (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." In Chandrappa v. State of Karnataka (2007) 4 SCC 415, the Supreme Court has reiterated the legal position as under: "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a CRLLP No. 132 of 2007 Page 11 of 13 competent court of law. Secondly, the 43 of 53 accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." ANALYSIS 10. The scope of an appeal against acquittal is very narrow as the allegations under Sections 399, 401 of the IPC are difficult to prove under normal circumstances. 11. The submission of the learned Additional Standing Counsel that without discussing the evidence of the witnesses and without citing any reason the learned trial Court has abruptly held that the prosecution has failed to prove its case against the accused persons is not correct as on perusal of the judgment of the learned trial Court, it is apparent that after discussing the evidence of the witnesses, the trial Court has held that the seizure of the weapon of offence like sword, iron rod and knife have not been proved. It has also held that P.W.7 the S.I. was present at the spot and P.W.1 the independent witness to seizure has not supported the prosecution case and that for consideration of the evidence though the prosecution has proved that the accused persons were standing under the bridge and CRLLP No. 132 of 2007 Page 12 of 13 discussing something, it has not been able to prove that they were making preparation for committing dacoity. 12. There is no material brought on record by the prosecution to accept the prosecution case that the accused persons had assembled for the purpose of committing dacoity. 13. In view of the decisions referred to above and on careful perusal of the impugned judgment, it cannot be said that the view taken by the learned trial court was not a possible view or that it is based on impermissible and extraneous materials or that it has not considered any material which would have been persuaded it to take a different view. On top of that almost twenty years have elapsed from the date of the alleged occurrence. CONCLUSION 14. In view of the aforesaid discussion, I find no ground to grant leave to file appeal against the judgment of acquittal. 15. The CRLLP is accordingly dismissed. ……………………… (Savitri Ratho, J.) Orissa High Court, Cuttack. The 30th May, 2025, Subhalaxmi, Jr. Steno. Signature Not Verified Digitally Signed Signed by: SUBHALAXMI PRIYADARSHANI SAHOO Reason: Authentication Location: Orissa High Court, Cuttack Date: 01-Jun-2025 19:40:48 CRLLP No. 132 of 2007 Page 13 of 13
Arguments
7. Ms. S. Mishra, learned Additional Standing counsel submitted that the learned Court below without discussing the evidence of witnesses, mainly the official witnesses and without citing any reason, why their evidence should be disbelieved, has abruptly come to a conclusion in Paragraph 13 that “in view of the discussion made above and the materials available on record, the prosecution has failed to prove its case against the accused persons”. She submitted that it is mentioned in the judgment that the seizure witness P.W.1 has not supported the fact of seizure, but no reason has been ascribed for rejecting the evidence of the official witnesses. In support of her CRLLP No. 132 of 2007 Page 9 of 13 submissions that the evidence of public officials cannot be disbelieved, she relied on a decision of the Supreme Court in the case of State of Kerala Vs. M. M. Mathew and another, reported in 1978, (IV), SCC, page 65. 8. Mr. R. K. Sahoo, learned counsel appearing on behalf of Opp.