MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No.18 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 24th September, 2003 passed by the learned Additional Sessions Judge, Bhanjanagar-Aska, Camp at Aska in S.C. No.8 of 2000 (S.C.195/2000-GDC). State of Orissa ---- -versus- …. Appellant Pandaba Sahu …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode) For Appellant - Mr.P.K. Maharaj, Additional Standing Counsel For Respondent - Mr.L. Samantaray, U.K. Barik, R. Pradhan & B. Pradhan
Legal Reasoning
CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 23.07.2024 : Date of Judgment : 20.08.2024 D.Dash,J. The State of Orissa, in this Appeal, has called in question the judgment of acquittal dated 24th September, 2003 passed by the learned Additional Sessions Judge, Bhanjanagar-Aska, Camp at Aska in S.C. No.8 of 2000 (S.C.195/2000-GDC) arising out of G.R. Case No.278 of 1999 corresponding to Pattapur P.S. Case GCRLA No.18 of 2008 Page 1 of 10 No.99 of 1999 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Aska. The Respondent, being arraigned as the accused, faced the trial for commission of the offences under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). The Trial Court, having gone through the evidence let in by the prosecution by examining twelve (12) witnesses and on perusal of the documents admitted in evidence from the side of the prosecution (Exts.1 to 22), has finally come to the conclusion that the prosecution has not been able to prove its case against the accused beyond reasonable doubt, which is now under challenge in this Appeal by the State. 2. Prosecution Case:- On 28.11.1999 around 11.00 a.m, Tomalo Sahu (deceased) the wife of the Informant (P.W.3) with three other labourers had gone to cut the paddy to their village. The Informant (P.W.3) went to some other land for ploughing. The Informant (P.W.3) retuned home around 4.00 p.m. with his plough and bullocks. One of the labourers, namely, Sudarsan Sahu engaged in cutting of the paddy with the wife of the Informant then came and informed the Informant that his wife had been killed by the accused, who happens to be brother of the Informant (P.W.3) and living separately in an adjoining house by means of a Kati in that field locally known as ‘Banko Bilo’. That Sudarsan then told that GCRLA No.18 of 2008 Page 2 of 10 when the deceased was cutting the paddy, she looked towards the accused, who was going towards the canal ridge. There was some exchange of words between them and thereafter the accused, reacting in that situation, came to the field where the deceased was cutting paddy and attacked the deceased from behind by giving two blows by means of that Kati on her neck resulting her fall on the ground leading to her death. The FIR further finds mention that on account of the death of the son of the accused six months before the occurrence due to snake bite, the wife of the accused was quarrelling with the deceased suspecting her to be practicing witchcraft and that frequent quarrel was taking place between the wife of the accused and deceased, the wife of the Informant. A written report to the above effect, being lodged at the Patrapur Police Station, the same was treated as the FIR (Ext.1) and upon registration of the criminal case, investigation commenced. 3. In course of investigation, the Investigating Officer (I.O.- P.W.11) examined the Informant (P.W.3) and recorded his statement under section 161 of Cr.P.C. Having visited the spot, the I.O. (P.W.11) prepared the spot map (Ext.3). He (P.W.11) then held the inquest over the dead body of the deceased and prepared the report (Ext.2). He sent the dead body for post mortem examination by issuing necessary requisition. The seized GCRLA No.18 of 2008 Page 3 of 10 incriminating articles were sent for chemical examination through Court. On completion of the investigation, the I.O. (P.W.11) submitted the Final Form placing this accused to face the Trial for commission of the offence. 4. Learned J.M.F.C., Aska, 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 this Respondent-accused person. 5. The prosecution, in support of its case, has examined in total twelve (11) witnesses during Trial. As already stated, the informant, who happens to be the husband of the deceased and brother of the accused, is P.W.3. The Doctor, who held the autopsy over the dead body of the deceased is P.W.12 whereas P.W.9 is other Doctor, who had examined the accused. P.W.11 is the I.O. of the case and P.W.10 is the A.S.I. who assisted the I.O. (P.W.11) in the investigation. P.W.8 is the Scientific Officer from District Forensic Science Laboratory, Chatrapur. 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 22. Out of those; important are the FIR (Ext.1); inquest report (Ext.2); post mortem report (Ext.21); and the spot map (Ext.3). GCRLA No.18 of 2008 Page 4 of 10 6. The accused has taken the plea of complete denial and false implication and has taken a plea that due to previous enmity, a false case has been foisted. 7. Mr.P.K.Maharaj learned Additional Standing Counsel for the State-Appellant submitted that the finding of the Trial Court that the prosecution has failed to establish the charge against this accused beyond reasonable doubt is outcome of perverse appreciation of evidence on record. According to him, the Trial Court, having rightly excluded the evidence of P.W.4 (Bhasini Naik) from consideration as she has not supported the case in the Trial and since no such material has surfaced in her evidence to come to the aid of the prosecution has, however, committed grave error by refusing to accept the evidence of P.Ws.1 & 2 in saying that the same as unsafe and hazardous to be relied upon. He submitted that the appreciation of the evidence by the Trial court inasmuch as the evidence of P.Ws.1 & 2 is concerned, is wholly perverse and the result being the acquittal, the same according to him, cannot be sustained. He submitted that with the obtained evidence of P.Ws.1 & 2, the Trial Court ought to have convicted the accused for commission of the offence under section 302 of the IPC and he should have been accordingly visited with the sentenced. GCRLA No.18 of 2008 Page 5 of 10 8. Mr.G.Samantaray, learned counsel for the Respondent- accused submitted all in favour of the judgment of acquittal passed by the Trial court. Inviting our attention to paragraph-10 of the judgment passed by the Trial court, he contended that there surfaces no perversity in the matter of appreciation of evidence by the Trial Court. He, then placing before us the scope for interference with an order of acquittal in seisin of the Appeal at the behest of the State, submitted that in any case as the he view taken by the Trial Court since cannot be said to be wholly unreasonable even though this Court is inclined to take another view differing with the Trial Court, the same as per the settled principles of law cannot stand as the substitute to up-set the order of acquittal and is impermissible. 9. 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 12) and have perused the documents admitted in evidence marked as Exts.1 to 22. 10. 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 GCRLA No.18 of 2008 Page 6 of 10 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:- “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. State by Srirampuram Police Station & Anr., (2012) 4 GCRLA No.18 of 2008 Page 7 of 10 SCC 722; and State of Haryana v. Shakuntla & Ors., (2012) 4 SCALE 526). 11. In the touchstone of the aforesaid, now let us proceed to examine the evidence as to whether there arises the justification for reversing the judgment and order of acquittal recorded by the Trial Court. The prosecution, in the case, has examined three witnesses, i.e., (P.Ws.1, 2 & 4) projecting them as the eye witnesses. P.W.4, who is one of the labourers, who had accompanied the deceased to the field where the incident took place, has not supported the prosecution and she, having resiled from her previous version, simply her attention has been drawn to the previous statement, which she claimed to have not stated, that has been shown to have been stated before the I.O. (P.W.11). She has stated to have not seen the occurrence. Therefore, the Trial Coiurt has rightly held that the evidence of P.W.4 to be of no help to the prosecution, which in fact is not questioned by the learned Counsel for the State before us. P.Ws.1 & 2 are the two persons, who were then cutting paddy in the field with the deceased. They have stated that the deceased was cutting paddy by bending from her waist, which is actually the pose while cutting paddy by means of a sickle. They state that the accused came from behind and dealt two blows by means of a Kati on the backside of the neck of the deceased. GCRLA No.18 of 2008 Page 8 of 10 When such is the positive evidence of P.Ws.1 & 2, the Doctor, who had conducted the autopsy over the dead body of the deceased, has stated that he found multiple injuries on the front side of the deceased. The Doctor (P.W.12) has categorically stated that all such injuries noticed by her on the front part of the body of the deceased are not at all possible to be caused by a person(s) from the backside. The Doctor (P.W.12) had noticed seven cut wounds. Taking a cue from this, the Trial Court has said that P.Ws.1 & 2 stating that the accused came from behind and assaulted on the backside of the deceased, the injuries noticed on the front side are not possible in that way as they narrate. So, from that, a doubt has been entertained by the Trial Court that a case of fighting between the deceased and the accused is being suppressed by these witnesses. By taking further aid from the evidence that the accused has also sustained cut injuries on his finger, as has been stated by the Doctor (P.W.9), who had examined him in stating that the same was also possible by sickle, that has been assigned as one more reason by the Trial Court to hold the evidence of P.Ws.1 & 2 as unsafe to be relied upon when for the presence of blood on the sickle held by the deceased, its user in the incident is not rule out. So, the Trial Court has stated that the actual happenings have not been stated by P.Ws.1 & 2 and they either suppressed the same to a great extent or having not seen the incident are asserting their status as the eye GCRLA No.18 of 2008 Page 9 of 10 witnesses. The Trial Court has taken such a view coupled with what has also culled out from the evidence to show that the FIR lodged in the case was not the real one and the real one, having been suppressed, the present FIR (Ext.1) has been manipulated. Taking all those into account and finding the conduct of P.Ws.1 & 2 as they ought to have shown as their immediate reaction at the spot, the Trial Court, having held the prosecution to have failed to establish the charge beyond reasonable doubt through the available evidence, we find no reason or justification to interfere with the same within the scope and ambit of this Appeal as noted in the aforesaid paragraphs. 12.
Decision
In the result, the Appeal stands dismissed. The judgment of acquittal dated 24th September, 2003 passed by the learned Additional Sessions Judge, Bhanjanagar-Aska, Camp at Aska in S.C. No.8 of 2000 (S.C.195/2000-GDC), are hereby confirmed. V.Narasingh, J. I Agree. (D. Dash) Judge (V. Narasingh) Judge Signature Not Verified Basu Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 27-Aug-2024 12:15:12 GCRLA No.18 of 2008 Page 10 of 10