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THE HIGH COURT OF ORISSA AT CUTTACK CRLLP No.13 of 2006 Naba Kumar Nandi 1.State of Orissa 2.Gangadhar Dutta … vs. ... Petitioner Mr. Abhisek Pradhan, Advocate on behalf of Mr.D.P.Dhal, Advocate Opposite Parties Mr.S.S.Mohapatra, ASC (for O.P. No.1) None for O.P. No.2 Order No. 18. CORAM: JUSTICE SAVITRI RATHO ORDER 29.02.2024 (Through hybrid mode) 1. This CRLLP has been filed under Section 378 (4) of the Cr.P.C. praying for leave to appeal against the judgment dated 09.12.2005 passed in ICC Case No.16/2000/Trial No.175/02 acquitting the opposite party No.2 of the offence punishable under Sections 294, 447,323, 324, 341, 506 of the Indian Penal Code (in short “the IPC”). 2. On 16.01.2007, notice on the question of admission had been
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issued on the opposite parties. Mr.D.Panda, learned counsel and associates have filed power for opposite party No.2-Gangadhar Dutta on 01.03.2007. But none appeared for opposite party No.2 when the matter was listed on 13.10.2023 and 28.11.2023. On 27.02.2024, Mr.S.Panda, learned counsel was present on behalf of Mr.D.Panda, learned counsel for the opposite party No.2 and had advanced his submissions. But no counsel has appeared on behalf of opposite party Page 1 of 8 No.2 when the matter is taken up today. PROSECUTION CASE 3. The prosecution allegations in brief is that on 17.12.1999 at about 12.30 p.m., while P.W.2-Bijaya Kumar Nandi, son of the complainant P.W.1-Naba Kumar Nandy was fencing their ancestral homestead at village, Kamarda, the opposite party No.2 forcibly entered inside their homestead land and abused him using obscene language saying “Sala Magia – Tote Bada Karibaku kie Anumati Dela”. When P.W. 2 raised hullah, P.W.1 and one Anjan Kumar Das rushed to the spot and saw opposite party No.2 deal a dauli blow on the left arm below the shoulder of P.W.2. He also slapped him on his cheek and threatened to kill him. P.W.1 lodged a written report in Kamarda police out post and intimated the S.P., Balasore and S.D.P.O., Jaleswar about the occurrence. As the police did not take any action, P.W.1 has filed the complaint. DEFENCE PLEA 4. The defence plea was one of complete denial of the prosecution allegation and it is stated that false allegation have been made. WITNESSES 5. In order to bring home the charge, the petitioner had examined himself as P.W.1. His son, the injured as P.W.2 and one Amal Kumar Page 2 of 8 Mishra as P.W.3. ISSUES FRAMED 6. The learned trial Court had framed the following six issues : “(i) Whether on 17.12.99 at about 12.30 p.m. at village Kamarda the accused abused Bijaya Nandi in obscene words on a public place causing annoyance to others ? (ii) Whether on the said date, time and place, the accused committed criminal trespass by entering upon the land of the complainant with intent to commit an offence ? (iii) Whether on the said date, time and place the accused voluntarily caused hurt to Bijaya Nandi ? (iv) Whether on the said date, time and place the accused hurt to Bijaya Nandi with deadly weapons ? (v) Whether on the said date, time and place the accused wrongfully restrained to Bijaya Nandi ? (vi) Whether on the said date, time and place the accused has committed the offence of criminal intimidation by giving threat to Bijaya Nandi to kill him with an intent to raise alarm ?” TRIAL COURT DECISION 7. The learned trial Court after analyzing the evidence on record has held that as no witnesses have been examined to prove the offence under Section 294 of IPC where one of the ingredients is that annoyance must be caused to others, so the offence is not made out. As regards the offences under Section 447 of the IPC and Section-34 of Page 3 of 8 the IPC, the learned trial Court held that since the land in question is a disputed land, the offence of criminal trespass and criminal restraint are not made out. The allegation against the opposite party No.2 for commission of offence under Sections 323/324 of IPC was disbelieved by the learned trial Court as neither any injury report was exhibited nor any doctor was examined to prove that any injury has been caused to P.W.2. SUBMISSIONS 8. Mr.Abhisek Pradhan, learned counsel appearing on behalf of Mr.D.P.Dhal, learned counsel for the petitioner submits that the order of acquittal is liable for interference for the following reasons : (i) P.Ws.1 and 3 in their evidence have stated that other persons were present when the opposite party No.2 abused P.W.2 in foul language for which the ingredients necessary for making out an offence under Section 294 IPC is well established. (ii) As the land in question was the ancestral land of P.W.1 and P.W.2 the offence of criminal tresspass is made out. (iii) In view of evidence of P.Ws.1 and 2 that the opposite party No.2, had assaulted the complainant for which he has been sent by the police to the hospital for treatment, the offence under Sections 323 and 324 of IPC is also made out. (iv)The opposite party No.2 restrained the P.W.2 from entering into his land, the offence under Section 341 of IPC is made out against them. Page 4 of 8 9. Mr. S. Panda, learned counsel for the opposite party no.2 had submitted that the impugned judgment does not call for interference as it has been passed after assessing the evidence of witnesses. ANALYSIS 10. It is the settled position of law that in case of an appeal against acquittal, if two views are possible then the order of acquittal should not be interfered with it is based on evidence on record and relevant evidence has not been ignored or discarded. Interference is warranted only where the conclusions of the trial Court are unreasonable or perverse. The appellate court has to bear in mind that there is a „double presumption‟ of innocence in favour of the accused. 11. In the case of Ghurey Lal vs. State of Uttar Pradesh : (2008) 10 SC 450, the Supreme Court has held as follows: “75. We have considered the entire evidence and documents on record and the reasoning given by the trial court for acquitting the accused and also the reasoning of the High Court for reversal of the judgment of acquittal. We have also dealt with a number of cases decided by the Privy Council and this Court since 1934. In our considered opinion, the trial court carefully scrutinized the entire evidence and documents on record and arrived at the correct conclusion. We are clearly of the opinion that the reasoning given by the High Court for overturning the judgment of the trial court is wholly unsustainable and contrary to the settled principles of law crystallized by a series of judgment.” Page 5 of 8 In the case of Chandrappa v. State of Karnataka : (2007) 4 SCC 415, the Supreme Court has delineated the general principles to be kept in mind by an appellate court while dealing with an appeal against acquittal. They are extracted below : “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 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 Page 6 of 8 shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the 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.” 12. I have heard the learned counsel and gone through the impugned judgment and the evidence on record. 13. While P.W.1 and 3 have stated that the accused dealt a blow on the left shoulder of P.W.2, P.W 2, the injured has stated that the accused had dealt a blow with a sickle. Injury report has not been produced by the complainant to prove the injury or nature of injury. Other witnesses have been named in the F.I.R., but they have not been examined in the trial. Anjan Kumar Das who was examined during the enquiry has not been examined as a witness in the trial. Admittedly, there is enmity between the parties and civil litigation is pending between them. That apart there is a delay of 14 days in filing the complaint which has not been properly explained. 14. Therefore, the learned trial Court after considering the material on record has rightly disbelieved the prosecution case and acquitted the accused. This was a possible view. That apart, the occurrence had taken place on 17.12.1999 and leave to appeal against the impugned Page 7 of 8 judgment has not been granted till date. I therefore find no reason to grant leave to the appellant to prefer an appeal against the impugned judgment of acquittal, twenty four years after the acquittal of opposite party No.2. 15. The CRLLP is accordingly dismissed. 16. Urgent certified copy of this order be granted as per rules. Bichi ………………………... (SAVITRI RATHO) JUDGE Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 04-Jun-2024 19:59:02 Page 8 of 8