MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No.15 of 2008 In the matter of an Appeal under Section 378(1)&(3) of the Code of Criminal Procedure, 1973 and from the judgment of acquittal dated 15th March 2005 passed by the learned Sessions Judge, Mayurbhanj-Baripada, in Sessions Trial Case No.153 of 2004. State of Orissa ---- -versus- …. Appellant Punia Dehury …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode) ========================================================= For Appellants - Mr. S.K. Nayak, Additional Govt. Advocate. For Respondent - Mr. A.K. Biswal, Advocate. CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 27.08.2024 : Date of Judgment :04.09.2024 The State of Orissa, in this Appeal, has called in question the judgment of acquittal dated 15th March 2005 passed by the learned Sessions Judge, Mayurbhanj-Baripada, in Sessions Trial Case No.153 of 2004 arising out of G.R. Case No.356 of 2004 GCRLA No.15 of 2008 Page 1 of 11 corresponding to Jharpokharia P.S. Case No.32 of 2004 of the Court of the learned Sub-Divisional Judicial Magistrate, Baripada. The Respondent (accused), standing charged for commission of offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’) has been acquitted in the said trial with the finding that the prosecution has failed to prove its case against the accused beyond reasonable doubt. 2. Prosecution Case:- The accused and Kuna Dehury (deceased) are two brothers. On 18th March 2004 at about 7.00 am, when Prafulla Patra, then working as Gramarakhi under the Jharpokharia Police Station, had gone to village Kulapata, the wife of the Kuna reported before him that around 5.30 am, on that day, accused assaulted her husband by means of lathi causing injuries on his head and prior to that, he had assaulted her niece-Laxmi Dehury, causing injuries on her person. Prafulla having received such information, went to the house of Kuna, found him lying unconscious in his courtyard with bleeding injuries on his head. He then went to the house of Lochani Dehury (P.W.4) and saw Laxmi lying there in an injured condition. When Prafulla was going to inform the matter to the OIC, Jharpokharia Police Station over telephone, Kuna succumbed to the injuries. Prafulla informed the matter to the Page 2 of 11 GCRLA No.15 of 2008 OIC over telephone who immediately rushed to the village and there Prafulla presented a written report (Ext.5) to the OIC (P.W.11). The OIC (P.W.11) then receiving the said report at the spot, took up investigation. It is stated that the accused assaulted Kuna and Laxmi suspecting them to have been practicing witchcraft and the accused had gone to the house of Chukuna Dehury being armed with blood-stained axe and lathi and told the villagers to have killed Laxmi and Kuna in further declaring that he would kill Bhosla and Saita. The villagers snatched away the weapons from the accused and gave the same to Prafulla, who produced those before the I.O. (P.W.11) for their onward seizure, which were seized under seizure list (Ext.8). 3. The I.O. (P.W.11) in course of investigation, visited the spot, sent the injured Laxmi Dehury to District Headquarters Hospital, Baripada and on the way Laxmi died. He (P.W.11) then held inquest over the dead body of the Kuna and prepared the report Ext.7. The dead body of Kuna was sent to District Headquarters Hospital, Baripada for postmortem examination by issuing necessary requisition. He (P.W.11) also held inquest over the dead body of Laxmi in the District Headquarters Hospital, Baripada in presence of witnesses and prepared the report Ext.10. The dead body of Laxmi was also sent for postmortem examination under dead body challan Ext.11. The accused was arrested. The I.O. (P.W.11) had also seized incriminating Page 3 of 11 GCRLA No.15 of 2008 materials from the spot under seizure list, Ext.12. The wearing apparels of the accused was seized under Ext.13. The accused was sent to the Court in custody. The wearing apparels of the deceased, Laxmi and Kuna were seized under seizure list Ext.14 when those were produced by the Police Constable who had escorted the dead body for postmortem examination, on his return to the police station. The seized incriminating articles were sent for chemical examination through Court. On 30.06.2004, the I.O. (P.W.11) in view of his transfer, made over the charge of investigation to the Sub-Inspector of Police, Manoranjan Biswal who on completion of investigation submitted the Final Form. 4. Learned Sub-Divisional Judicial Magistrate, Baripada, on receipt of the Final Form, took cognizance of said offence 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 the Respondent-accused. 5. In the Trial, the prosecution in total examined eleven (11) witnesses. Out of them, the important are P.Ws.7 and 8, who claim to be the eyewitnesses. P.W.7 is the grandson of the deceased-Kuna being son of P.W.5 who is the daughter of the deceased-Kuna, whereas P.W.8 is the son of Kuna. P.W.1 is the Doctor, who had conducted autopsy over the dead body of the deceased-Kuna and Laxmi, whereas P.W. 11 is the OIC, GCRLA No.15 of 2008 Page 4 of 11 Jharpokharia P.S. who had taken over the charge of investigation of the case from P.W.11. P.W.3 is the husband of the deceased- Laxmi, P.W.4 is the owner of the house in which the deceased Laxmi along with her husband stayed. P.W. 6 is the witness to seizure of the weapon of offences, P.W.9 is the witness who snatched away the lathi and axe from the accused and P.W.10 is another witness to the seizure. The Investigating Officers who had conducted major part of the investigation has been examined as P.W.11. 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 16. Out of those; important are the written report (Ext.5) and the
Legal Reasoning
formal FIR (Ext.5/2); spot maps, Ext.6, inquest reports (Exts.7 and 10); postmortem report of deceased Kuna Dehury (Ext.1) and postmortem report of deceased-Laxmi (Ext.2); and Chemical Examination report (Ext.16). The seized incriminating articles; one lathi, one axe, one barsi and a lungi have been produced during trial and marked as Material Objects (M.O.-I to M.O.-IV). 6. The defence plea is that of complete denial. Being called upon, the accused has not led any evidence in support of his defence. GCRLA No.15 of 2008 Page 5 of 11 7. The Trial Court upon examination of the evidence and their evaluation has ultimately arrived at a conclusion that the prosecution has not been able to prove the charge against the accused by leading, clear, cogent and acceptable evidence beyond reasonable doubt which is impugned in this Appeal. 8. Learned Counsel for the State submitted that the Trial Court having not properly appreciated the evidence on record and rather having appreciated the same in a perverse manner has erred in arriving at the conclusion running against the prosecution case. He further submitted that the evidence of P.Ws. 5, 7, 8 and 9 ought to have been held to be standing firm in establishing the prosecution case against the accused beyond reasonable doubt. He, therefore, urged that the judgment of acquittal impugned in this Appeal is liable to be set at naught. 9. Learned counsel for the Respondent-accused placing the scope of inference with the finding of the Trial Court in seisin of the Appeal, challenging the acquittal contended that the Trial Court after detail and thorough examination of evidence and having appreciated all the circumstances surrounding the incident as have emerged in the version of the prosecution witnesses did commit no mistake in acquitting the accused persons. GCRLA No.15 of 2008 Page 6 of 11 10. 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 11) and have perused the documents admitted in evidence marked as Exts.1 to 16. 11. Before proceeding to address the rival submissions, we would like to 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 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:- GCRLA No.15 of 2008 Page 7 of 11 “The law of interfering with the judgment of acquittal is well- settled. It is to the effect that only in exceptional cases where there are 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.
Legal Reasoning
State by Srirampuram Police Station & Anr., (2012) 4 SCC 722; and State of Haryana v. Shakuntla & Ors., (2012) 4 SCALE 526). 12. Let’s first come to the evidence of P.W.5, 6, 7 and 8. P.W.7 and 8 claim to have seen the incident, wherein deceased-Kuna was assaulted by the accused. P.W.5 who is the daughter of the deceased reached the spot after the occurrence and P.W.7 is the son of P.w.5, who is a child witness; whereas P.w.8 is the brother of P.W.5. P.W.7 states that in the night of occurrence, he had gone to the house of Chukuna Dehury and returned to the house in the morning. He further submitted that when he reached his house, accused was assaulting deceased with an axe on the right side of his head near the ear, causing bleeding injuries which led to his GCRLA No.15 of 2008 Page 8 of 11 death. It is further stated that he (P.W.7) then went to the house of Chukuna and told about the occurrence to his mother. During cross-examination, he has stated to have not seen the accused assaulting his grandfather, Kuna but being tutored is stating so. He has also stated that after taking food in the house of Chukuna, he with his mother and maternal uncle remained in his house of one Daitari for the entire night and on the following day at 7 to 8 am; he alone went to his house. It is further stated that he then saw large number of persons of village to have gathered in front of his house and upon entering the house, he found his grandfather lying unconscious with bleeding injury. The evidence of P.W.7 is also to the effect that he had not been examined by Police. He again states to have not stated anything about the occurrence to anybody and went to inform his mother and maternal uncle. It is there in the evidence that when P.W.7 with his mother and maternal uncle arrived in their house, Prafulla Patra (Choukidar) with other persons were present. The evidence of P.W.7 belies the evidence of P.W.5. P.W.8, when claims to have seen the accused by assaulting the deceased by means of axe and lathi and it having been said that evidence of P.W.7 on that score is unreliable; the evidence of P.W.8 cannot be held as safe to be relied upon. P.W.5 in contradiction to the evidence of P.Ws.7 and 8 has stated that when she was in the house of Chukuna, it was around GCRLA No.15 of 2008 Page 9 of 11 8 to 9 pm, the accused came there being armed with lathi and blood-stained axe and told that he had killed Kuna and told them to have committed the offence and declared that he would kill Saita and Bhosla (P.W.8) and then P.W.9 snatched away the lathi and axe from him and kept those in his house. During cross- examination, she has expressed her ignorance as to who were present when the accused confessed to have committed the crime and expressed his desire to kill Saita and Bhosla (P.W.8). When she (P.W.5) states, P.W.9 to have snatched away lathi and axe from the accused in the house of Chukuna. P.W.9’s version is different as he states that when he was in the house of Chukuna, accused came there holding axe and lathi and gave out that he would kill P.W.8 and so he (P.W.9) pacified the accused and snatched away lathi and axe from him. The seized axe and lathi having been produced during Trial, this P.W.9, however, flatly denies to say that those were the lathi and axe which the accused was found carrying when he snatched away those from him and later produced before the Police for being seized. P.Ws.5 and 9 as it appears have maintained silence after seeing the incident instead of narrating the same before others till they came to the Court and examined. 13. The Trial Court as it appears from the judgment has also made a thorough survey over the evidence of P.Ws.5, 7 and 8 who are the material witnesses and having found grave GCRLA No.15 of 2008 Page 10 of 11 discrepancies therein as also the evidence of P.W.5 the daughter of the deceased, has refused to accept their versions so as to hold in favour of the complicity of this accused in the said incident. Having given our anxious and thoughtful consideration over the evidence on record, we find no such infirmity much less perversity to be surfacing in the matter of appreciation of evidence as has been made by the Trial Court. Taking all those into account and finding, the Trial Court, to have rightly held the prosecution to have failed to establish the charge beyond reasonable doubt; we see no reason or justification to interfere with the same within the scope and ambit of this Appeal as noted in the aforesaid paragraphs. 14.
Decision
In the result, the Appeal stands dismissed. The judgment of acquittal dated 15th March 2005 passed by the learned Sessions Judge, Mayurbhanj-Baripada, in Sessions Trial Case No.153 of 2004, are hereby confirmed. (V. Narasingh) Judge (D. Dash) Judge Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Narayan Location: OHC Date: 04-Sep-2024 16:46:26 GCRLA No.15 of 2008 Page 11 of 11