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2004 DIGILAW 80 (ORI)

SHYAMA SUNDAR BEHERA v. RASANANDA BEHERA

2004-02-06

L.MOHAPATRA

body2004
L. MOHAPATRA, J. ( 1 ) THE petitioner in all the three revisions is the informant in G. R. Case No. 328 of 1993 registered for commission of offences under Sections 379, 294, 506 and 34 of the Penal Code and disposed of by learned Judicial Magistrate, First Class, cuttack. From the record, it appears that the case had been split up against the accused persons and three separate judgments have been delivered acquitting the accused persons resulting in filing of three revisions before this Court. ( 2 ) THE case of the prosecution is that on 9-4-1993 at about 5. 00 p. m. accused daitari, his father Rasananda and his brother entered into the plot under occupation of the informant armed with lathi and other weapons and threatened the informant to kill and abused him in filthy language. While the informant came out of land under his occupation, the accused persons removed the stones about 100 (one hundred) in number forcibly. After the F. I. R. was lodged on these allegations investigation was taken up and charge-sheet was submitted for commission of offences as aforesaid. In all the split up cases it appears the defence was one of denial and some witnesses were examined on behalf of the prosecution excepting the I. O. The learned Magistrate in one of the cases observed that there is evidence about removal of stones and seizure of the same by the police and there is also evidence on record to show that the said seized stones were released in zima of the informant. However, the I. O. has not been examined to prove the seizure and non-examination of the I. O. is fatal to the prosecution. The learned Magistrate has further observed that due to non-examination of the material witness like the I. O. benefit of doubt should go to the accused persons and accordingly acquitted the accused persons. Similar is the observation in the judgment delivered in the split up cases also. ( 3 ) THE learned counsel for the informant challenging the aforesaid judgments submitted that it was the duty of the prosecution to examine the I. O. and the informant should not be made to suffer because the I. O. was not produced before the Court for examination. ( 3 ) THE learned counsel for the informant challenging the aforesaid judgments submitted that it was the duty of the prosecution to examine the I. O. and the informant should not be made to suffer because the I. O. was not produced before the Court for examination. The learned counsel further submitted that when the Court was of the view that examination of the I. O. is necessary, the learned Magistrate should not have closed the prosecution case without examination of the I. O. Sk. Aziz, the learned counsel appearing for the accused persons, on the other hand, submitted that the seizure could be proved through any one of the wit-nesses and for that it is not necessary to examine the I. O. The I. O. was required to be examined only when certain statements made during investigation by the different witnesses are required to be confronted. There being no such material on record to show that certain differences were required to be confronted to the I. O. , non-examination of the I. O. has not made any difference. It was also submitted that the scope of interference by the High Court in a revision at the instance of the informant against an order of acquittal is very limited and only when the Court is satisfied that the trial court has committed glaring illegalities, the court should interfere. ( 4 ) THERE is no dispute about the proposition of law that while deciding a revision filed at the instance of the informant against an order of acquittal, the High Court cannot convert an order of acquittal to an order of conviction. The Court has also held that where the High Court is satisfied that while recording an order of acquittal proper procedure has not been followed by the trial court or glaring illegalities have been committed by the trial Court, it can always remitted back for reconsideration. This is one such case where the learned Magistrate has specifically recorded a finding that the stones alleged to have been removed from the lands under occupation of the informant were seized by the police during investigation and the seizure list had been prepared. However, the I. O. was not examined to prove the seizure list. This is one such case where the learned Magistrate has specifically recorded a finding that the stones alleged to have been removed from the lands under occupation of the informant were seized by the police during investigation and the seizure list had been prepared. However, the I. O. was not examined to prove the seizure list. ( 5 ) THIS Court in the case of Damodar prasad Mohanty v. Biranchi Kar reported in (2002) 22 OCR 46 has held that in a revision against an order of acquittal, at the instance of the informant, where finding recorded by the learned Magistrate is perverse, such acquittal order requires to be set aside and the matter should be remitted back to the trial Court for fresh disposal. This Court further in the case of Iswar Sahu v. State of orissa reported in (1996) 2 OCR 122 considered the case where without examination of the I. O. the prosecution had been closed. This Court held that non-examination of the i. O. may prejudice either the prosecution or the defence and, therefore, the learned Magistrate is duty bound to secure the presence of the I. O. and if the I. O. does not respond to notice served by the Court, recourse to section 350 of the Cr. P. C. should be taken against him. ( 6 ) IN view of the above, non-examination of the I. O. has resulted in a perverse finding and consequently has resulted in acquittal. I, therefore, set aside the impugned judgments and direct the learned magistrate to examine the I. O. in all the three cases and after examination of the I. O. deliver the judgments on the basis of the evidence collected during trial. Accordingly, all the three revisions are allowed. Petition allowed.