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2003 DIGILAW 93 (ORI)

ASHOK DAS v. STATE OF ORISSA

2003-01-31

B.P.DAS

body2003
B. P. DAS, J. ( 1 ) THIS revision application is directed against the judgment dated 4-1-1999 passed in Criminal Appeal No. 13 of 1999 by which the Addl. Sessions Judge, Jagatsinghpur, has confirmed the order of conviction and sentence passed by the Chief Judicial Magistrate-cum-Asst. Sessions Judge, Jagatsinghpur, in S. T. Case No. 499/95 arising out of G. R. Case No. 417/94 convicting petitioner Nos. 6 and 7 under Section 304, Part II/34 of the Indian Penal Code ('i. P. C. ' in short) and sentencing each of them to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000. 00, in default, to undergo R. I. for a further period of two months. The trial Court also convicted petitioner Nos. 1 to 5 under Section 323/34, I. P. C. and sentenced each of them to undergo R. I. for six months and to pay a fine of Rs. 500. 00, in default, to undergo R. I. for one month more. ( 2 ) THE petitioners (hereinafter referred to as 'the accused') stood charged under Sections 341/323/324/294/304/34, I. P. C. for wrongfully restraining the deceased Brundaban Das; for voluntarily causing hurt to one Nabaghan Das and Kusa Das; for voluntarily causing hurt to the deceased Brudaban Das by means of Farsa; for abusing the deceased Brundaban Das in vulgar words in public place to his annoyance and for causing death of the deceased-Brundaban Das by assaulting him by means of a Farsa with the intention of causing such injury as was likely to cause his death in furtherance of their common intention. ( 3 ) SHORN of unnecessary details, the factual backdrop as depicted by the prosecution is that on 19-5-1995 at about 7 p. m. the accused persons suddenly came to the house of the informant (PW 2) and threw earth from the side wall of the house of PW2 and accused Narahari Das caught hold of the deceased-Brundaban Das and accused Birabar Das gave a Frasa blow on his head. Soon after, when the family members of PW 2 arrived at the spot, accused Dilip Das and Gobinda Das assaulted them by means of Lathis. Accused Aruna Das gave a thrust to the foundation of PW 2's house by means of a Lathi. After the assulat, the informant and his family members ran away from the spot. Soon after, when the family members of PW 2 arrived at the spot, accused Dilip Das and Gobinda Das assaulted them by means of Lathis. Accused Aruna Das gave a thrust to the foundation of PW 2's house by means of a Lathi. After the assulat, the informant and his family members ran away from the spot. Accused Dilip Das and Gobinda Das entered inside the house of PW 2 and took away certain household articels and two bags of paddy and forcibly detained Nabaghan Das, the elder brother of the informant, in order to assault him. F. I. R. as per Ext. 1 was lodged at Jagatsinghpur Police Station whereafter investigation followed on completion of which charge sheet was submitted against the accused persons, who stood their trial for the offences already indicated above. ( 4 ) THE defence plea was one of complete denial of the charges. ( 5 ) THE prosecution examined as many as 11 witnesses and the defence examined 3 witnesses. Several documents were exhibited on either side. ( 6 ) THE trial Court after looking into the evidence on record found accused Narahari Das and Birabar Das guilty under Section 304, Part II/34, I. P. C. and the rest of the accused under Sections 323/34, I. P. C. and convicted and sentenced them thereunder as stated hereinbefore. The aforesaid order of conviction and sentence was assailed by the accused persons by filing an appeal and the appellate Court by the impugned order has confirmed the order of conviction and sentence and dismissed the appeal as having no merit. ( 7 ) THE learned counsel for the petitioners submitted that the order passed by the appellate Court is totally an outcome of non application of mind. The grounds taken before it have neither been dealt with by the said Court nor has any finding been recorded on the same. It was further submitted that there are several contradictions and anomalies in the evidence of the prosecution witnesses which were brought to the notice of the appellate Court and argued before, it but the appellate Court dismissed the appeal without entering into the merits of the said submissions. It was further submitted that there are several contradictions and anomalies in the evidence of the prosecution witnesses which were brought to the notice of the appellate Court and argued before, it but the appellate Court dismissed the appeal without entering into the merits of the said submissions. ( 8 ) ON perusal of the judgment of the appellate Court, I find that the entire judgment consists of six paragraphs out of which five paragraphs are the repetition of the grounds of appeal, case of the prosecution and the pleas of the appellant. Paragraph 6 only deals with the finding and the conclusion of the appellate Court, which is as follows :-"6. Learned Court below after thorough discussion of the evidence came to a conclusion that being directed by accused Bira, accused Narahari caught hold of deceased Brundaban and accused Bira assaulted the deceased Brundaban Das by means of Farsa on his head causing bleeding injury as a result of which the deceased died in S. C. B. Medical College and other accused persons, assaulted other persons. The judgment is well discussed. There is nothing on record to differ from the finding of the learned Asstt. Sessions Judge, Jagatsinghpur. He has rightly convicted the appellants and also rigthly sentenced them. There is nothing on record to interfere in the sentence passed by the learned Asstt. Sessions Judge, Jagatsinghpur. So, the judgment and sentenced passe are confirmed. The appeal having no merit is dismissed. "as it appears, the appellate Court after observing that the judgment is well discussed and there is nothing on record to differ from the finding of the learned Asstt. Sessions Judge has dismissed the appeal. ( 9 ) SECTION 386 of the Code of Criminal Procedure deals with the power of the appellate Court. In the matter of assessment, appraisal and appreciation of evidence and also to determine the disputed issues, the appellate Court's jurisdiction is co-existensive with that of the trial Court. When such an approach is not made, it is necessary that the appeal is heard and disposal of afresh in accordance with law. In the matter of assessment, appraisal and appreciation of evidence and also to determine the disputed issues, the appellate Court's jurisdiction is co-existensive with that of the trial Court. When such an approach is not made, it is necessary that the appeal is heard and disposal of afresh in accordance with law. (1999) 2 Orissa LR 546 (SC) Rajan v. State of M. P.) In Paul George v. State, reported in AIR 2002 SC 657 , the Apex Court while deciding an appeal preferred against an order of the Delhi High Court dismissing a criminal revision observed as follows :"we are, however, not examining the merits of the pleas raised before us. We are only considering the question as to whether the revision should have been disposed of by means of bald and non speaking order. We feel that whatever be the outcome of the pleas raised by the appellant on merits, the order disposing of the matter must indicate application of mind to the case and some reasons be assigned for negating or accepting such pleas. . . . . . . . . . . . Be that as it may, the submissions made on behalf of the appellant could not be negated without examining them on merit. The order impugned, however, does not indicate any trace of application of mind on the facts or the pleas raised before the Court. . . . . . . . . . . . " ( 10 ) IN another decision in Lal Mandi v. State of W. B. , reported in AIR 1995 SC 2265 : (1995 Cri LJ 2659), the Apex Court dealing with the power of the appellate Court observed as follows (Para 5) :- ". . . . . . . . . . . . An appellate Court may give every reasonable weight to the conclusions arrived at by the trial Court but it must be remebered that an appellate Court is duty bound, in the same way as the trial Court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial Court, all the circumstances available on record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence. ( 11 ) IN Bani Singh v. State of U. P. , AIR 1996 SC 2439 , while pointing out the course to be adopted by the appellate Court when both the appellant and his lawyer failed to appear on the date the appeal was posted for hearing, overruled its earlier decision in of Ram Naresh Yadav v. State Bihar, AIR 1987 SC 1500 , and held thus (Para 14) :-". . . . . . . The plain language of Ss. 385-386 does not contemplate dismissal of the appeal for non prosecution simpliciter. On the contrary, the Code envisages the disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by trial Court are consistent with the material on record. . . . . . . . . . " ( 12 ) IN the present case, unfortunately I find that the appellate Court has simply dismissed the appeal saying that the judgment of the trial Court is well discussed which on the face of the aforesaid judicial pronouncements cannot be sustained. The appellate Court has not applied its mind to the facts and even overlooked the evidence on record and not dealt with the grounds taken by the appellants. The appellate Court should bear in mind that reasons are to be indicated in the order disposing of any matter, when such order is subject to appeal or revision before the higher forum which helps appellate or revisional authority to appreciate the merits of the order and the way the decision has been arrived at. ( 13 ) IN view of the discussions made above, I am of the view that the impugned order passed by the learned Addl. Sessions Judge, Jagatsinghpur, in Criminal Appeal No. 13 of 1999 does not stand the judicial scrutiny and is liable to be set aside. ( 13 ) IN view of the discussions made above, I am of the view that the impugned order passed by the learned Addl. Sessions Judge, Jagatsinghpur, in Criminal Appeal No. 13 of 1999 does not stand the judicial scrutiny and is liable to be set aside. Accordingly, I set aside the impugned order and remand the matter to the appellate Court for its hearing and disposal afresh in accordance with law keeping in view the judicial pronouncements referred to above. During the pendency of the appeal, if the appellants move for, bail, they shall be allowed to be released on bail on such terms and conditions as the appellate Court deems just and proper. ( 14 ) THE criminal revision is allowed accordingly. Revision allowed.