The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK CRLLP No.56 of 2009 An Application U/s.378 of Cr.P.C. --------------------- State of Orissa …..… Petitioner -Versus- Narsingh @ Sahab Choudhury …..… Opposite parties & Others For Petitioner : Mr. Sangram Das, Standing Counsel (Vigilance) For Opp.parties : ------------------ P R E S E N T: THE HONOURABLE SHRI JUSTICE M.S. SAHOO -------------------------------------------------------------------------------------- Date of Hearing & Judgment:28.11.2023 -------------------------------------------------------------------------------------- M.S.SAHOO, J. The petition was filed U/s. 378(5) of Cr.P.C. seeking leave to appeal against the judgment of acquittal dated 30.09.2008 passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No.31 of 1989 arising out of V.G.R. No.41 of 1982 corresponding to Cuttack Vigilance P.S. Case No.41 of 1982; acquitting the opposite parties who stood trial for committing the offences U/s.120-B/465/468/471/419 of IPC and under Section 37 of Orissa Forest Act read with Clause 21 of Orissa Timber and other Forest Produce Transit Page 1 of 14 // 2 // Rules, 1980 and U/s.5(2) read with Section 5(1)(d) of P.C. Act. 1988. 2. Learned Standing Counsel strenuously urged to grant leave stating that the learned trial court did not consider the material as well did not appreciate the material in their proper perspective and the evidence adduced by the prosecution was sufficient to bring home a finding of guilt against the opposite parties. 3. Having heard the learned Standing Counsel for the petitioner, this Court has gone through the judgment impugned as has been annexed through the present petition and on perusal of the judgment, it is indicated that the learned trial court has taken note of the evidence of the thirteen prosecution witnesses including the Forest Range Officer (P.W.2), the Sub-Divisional Manager of OFDC (P.W.3) who had issued the Timber Transit (T.T.) Permit in favour of the purchaser, P.W.4 who was the Assistant Supervisor, Orissa Forest Corporation Ltd., some independent witnesses like P.W.5: a villager, the witnesses of the seizure who have put their signature in the seizure list such as P.W.6 and the P.Ws.8 and 9 who were presented as witnesses to the loading of the sawn timber of the railway wagon as per the prosecution case. 4. Learned court has discussed the statement of Narsingh Choudhury (opposite party no.1 herein) recorded U/s. 164 Cr.P.C. marked as Ext.8. When specifically requested, learned Standing Counsel has referred to the entire judgment to note that Narsingh Choudhury was never produced as witness
Legal Reasoning
before the learned trial court nor his statement was recorded. Somehow, the prosecution relied upon the statement of the opposite party describing it to be a confessional statement recorded by a Magistrate. Page 2 of 14 // 3 // 5. Learned trial court has gone at great length to discuss such statement and has given a finding that the learned Magistrate has not shown any document indicating recording of the statement nor the Investigating Officer has disclosed anything regarding the statement nor also any responsible government servant who was present when the Opposite Party
Legal Reasoning
Shri Choudhury allegedly made the writing, amounting to a confession. However, contention was raised by the Special Public Prosecutor before the learned trial court that the statement recorded 164 Cr.P.C. is a piece of evidence that can be used against the Opp. Party-accused. 6. In the facts of the case and the other peculiar circumstances of the trial, it has to be observed that whether, the statement of any accused, recorded U/s.164 Cr.P.C. without the accused being examined by the learned trial court or without examining the person before whom the accused has been alleged to have made the statement, could be a admissible evidence, would be a different matter altogether, and this Court is not expressing any opinion in that regard. 7. 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 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) Page 3 of 14 // 4 // “12. This Court time and again has laid down the guidelines for the High Court to 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 is entitled 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 of Bihar [Shambhoo Missir v. State of Bihar, (1990) 4 SCC 17 : 1990 SCC (Cri) 518] , Shailendra of U.P. [Shailendra Pratap v. State of U.P., (2003) 1 SCC 761 : 2003 SCC (Cri) 432] , Narendra Singh v. State of 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 (Cri) 645] , Arulveluv. State [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] , Perla Somasekhara Reddy v. State of A.P. [Perla Somasekhara of A.P., (2009) 16 SCC 98 : (2010) 2 SCC (2008) 2 SCC Pratap v. State Missir v. State : Reddy v. State (Underlined to Supply Emphasis) Page 4 of 14 // 5 // (Cri) 176] and Ram Singh v. State of H.P. [Ram Singh v. State of H.P., (2010) 2 SCC 445 : (2010) 1 SCC (Cri) 1496] ) 13. In Sheo Swarup v. King Emperor [Sheo Swarup v. King Emperor, 1934 SCC OnLine PC 42 : (1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] , the Privy Council observed as under: (SCC Online PC: IA p. 404) ‘… 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 (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.’ this Court. followed by Agarwal v. State 14. The aforesaid principle of law has consistently (See Tulsiram been Kanu v. State [Tulsiram Kanu v. State, 1951 SCC 92 : AIR 1954 SC 1] , Balbir Singh v. State of Punjab [Balbir Singh v. State of Punjab, AIR 1957 SC 216 : 1957 Cri LJ 481] , M.G. Agarwal v. State of Maharashtra [M.G. of Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri LJ , Khedu Mohton v. State of Bihar [Khedu 235] Mohton v. State of Bihar, (1970) 2 SCC 450 : 1970 SCC of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] , Bhagwan Singh v. State of M.P. [Bhagwan Singh v. State of M.P., (2002) 4 SCC 85 : 2002 SCC (Cri) 736] and State of Goa v. Sanjay Thakran [State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 : (2007) 2 SCC (Cri) 162] .) , Sambasivan v. State 479] (Cri) (Underlined to Supply Emphasis) 15. In Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka, (2007) 4 Page 5 of 14 // 6 // SCC 415 : (2007) 2 SCC (Cri) 325] , this Court reiterated the legal position as under: (SCC p. 432, para 42) ‘(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. such Various expressions, (3) as, “substantial and compelling reasons”, “good “very strong and sufficient grounds”, circumstances”, conclusions”, “distorted “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 competent court of law. Secondly, the accused having secured the presumption of his his acquittal, 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 (Underlined to Supply Emphasis) Page 6 of 14 // 7 // the appellate court should not disturb finding of acquittal recorded by the trial court.’ In Ghurey Lal v. State of U.P. [Ghurey 16. Lal v. State of U.P., (2008) 10 SCC 450 : (2009) 1 SCC (Cri) 60], this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses. trial court's acquittal bolsters the 17. In State of Rajasthan v. Naresh [State of Rajasthan v. Naresh, (2009) 9 SCC 368 : (2009) 3 SCC (Cri) 1069], the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) ‘20. … An order of acquittal should not be the court lightly believes that there is some evidence pointing out the finger towards the accused.’ interfered with even if In State of U.P. v. Banne [State of 18. U.P. v. Banne, (2009) 4 SCC 271 : (2009) 2 SCC (Cri) 260] , this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include:(SCC p. 286, para 28) ‘(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court's conclusions are contrary to evidence and documents on record; (iii) The entire approach of the High Court in dealing with the evidence was patently illegal (Underlined to Supply Emphasis) Page 7 of 14 // 8 // leading to grave miscarriage of justice; (iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) This Court must always give proper weight and consideration to the findings of the High Court; (vi) This Court would be extremely reluctant in the interfering with a case when both Sessions Court and the High Court have recorded an order of acquittal.’ A similar view has been reiterated by this Court in Dhanapal v. State [Dhanapal v. State, (2009) 10 SCC 401 : (2010) 1 SCC (Cri) 336] . the 19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where compelling there are judgment under circumstances, and 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 for interference.” 14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid (Babu decision, which case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , SCC p. 199) under: reads as “20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding into or relevant material consideration irrelevant/inadmissible taking by (Underlined to Supply Emphasis) Page 8 of 14 // 9 // it if (Vide Rajinder Admn. [Rajinder material. The finding may also be said to be perverse is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of Kumar irrationality. Kindra v. Delhi Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131] , Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [Excise & Taxation Officer-cum- Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312] , Triveni Rubber & Plastics v. CCE [Triveni & Plastics v. CCE, 1994 Supp (3) SCC 665] Prasad [Gaya , Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501] , Aruvelu [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] and Gamini Bala Koteswara Rao v. State of A.P. [Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372] )” (emphasis supplied) Din v. Hanuman Rubber in Kuldeep Singh v. Commr. It is further observed, after following the decision of this Court of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429] , that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. Mohan Singh v. State recent decision of Vijay Mohan the 14.3. In Singh [Vijay of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586] , this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by [State of Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine Kar 10732] in an appeal against acquittal. This the High Court (Underlined to Supply Emphasis) Page 9 of 14 // 10 // Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under: (SCC pp. 447-49) the identical question came “31. An to be considered before this Court in Umedbhai Jadavbhai [Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108] . In the case before this Court, the High Court interfered with the order of acquittal passed by trial court on learned reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233) the the
Decision
order entire importance the appeal was rightly ‘10. Once entertained against of acquittal, the High Court was entitled to evidence reappreciate independently and come to its own conclusion. Ordinarily, the High Court would give due the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will the present case where the Sessions made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.’ in applicable Judge has not be to 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 record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions (Underlined to Supply Emphasis) Page 10 of 14 // 11 // 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 to ‘8. We have perused the judgment under appeal to ascertain whether the High Court the aforementioned has conformed 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 he judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted it are the by (Underlined to Supply Emphasis) Page 11 of 14 // 12 // 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 order of acquittal passed by the learned Sessions Judge. in discarding the Page 12 of 14 // 13 // 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 this connection the very cases cited at the Bar, Singh v. State [Surajpal namely, Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC (Underlined to Supply Emphasis) to have been vitiated. (See in Page 13 of 14 // 14 // ; Wilayat Khan v. State of U.P. [Wilayat 52] 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 that justified in reviewing the entire evidence and coming to its own conclusions.’ Court High was the not 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) 8. As discussed above, it would be suffice to hold that the prosecution failed to prove their case before the learned trial court on the basis of available material as well as depositions before the learned trial court. 9. In the facts and circumstances of the present case and applying the principles laid down by Hon’ble Supreme Court in Anwar Ali (Supra), it is held that leave cannot be granted for filling of appeal. The petition stands disposed of, accordingly. Orissa High Court, Cuttack The 28th November, 2023/RRJena …………………… M.S.Sahoo, J. Signature Not Verified Digitally Signed Signed by: RADHARANI JENA Designation: Personal Assistant Reason: Authentication Location: OHC Date: 28-Dec-2023 19:35:17 Page 14 of 14