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2007 DIGILAW 787 (ORI)

Bhagyarathi Patnaik v. Rama Chandra Swain

2007-10-09

R.N.BISWAL

body2007
JUDGMENT R. N. BISWAL, J. : This Revision is directed against the judgment and order dated 17.12.1991 passed by the First Addl.Sessions Judge, Puri in Sessions Trial Case No.15/202 of 1989-88 wherein except accused Jogi @ Jogendra Swain, all the other 14 accused persons were acquitted. 2. All the opp.parties along with 10 other co-accused persons were charged under Sections 147/148/302/149 of I.P.C., on the allegation that forming an unlawful assembly and being armed with deadly weapons, in prosecution of their common object, they committed murder of Raj Kishore Patnaik. Accused Rama Chandra Swain, Babuli @ Pravakar Swain, Mana @ Brundaban Swain and Ganga Martha were also separately charged under Section 302/34 of I.P.C., on the allegation that in furtherance of their common intention they committed murder of Raj Kishore Patnaik. Accused Babuli @ Pravakar Swain was further charged under Section 323 of I.P.C. on the allegation that he voluntarily caused hurt to Nilakantha Patnaik (P.W.6) and Niranjan Patnaik (P.W.15). Simi¬larly, accused mana @ Brundaban Swain was further charged under Section 323 of I.P.C. on the allegation that he voluntarily caused hurt to Golakh Patnaik (P.W.3). In course of hearing of the Revision, learned counsel for the petitioner submitted that the petitioner was only aggrieved with the order of acquittal of accused Rama Chandra Swain, Sankar Naik, Kailash Swain, Sudam Swain and Fakira. But on perusal of the Revision petition it is found that accused Sudam, Kailash and Fakir were not made parties therein for which no adverse order can be passed against them behind their back. 3. Now it is to be seen, whether the order of acquittal of accused Rama Chandra Swain and Sankar Nayak was illegal, so as to be interfered with by this Court in a Revision filed by the informant. A fascicle reading of the decisions in K. Chinnaswamy Reddy v. State of Andhra Pradesh A.I.R. 1962 S.C. 1788, Vimal Singh V. Khuman Singh and another A.I.R. 1998 S.C. 3380, Ayodhya Dube and others v. Ram Sumer Singh A.I.R. 1981 S.C. 1415 shows that a Revision petition can be entertained against an order of acquit¬tal, if there is glaring procedural defect or magnificent error in law, absence of jurisdiction of the Court or if material evidence was not taken into consideration. In the case at hand after assessing the evidence on record and mainly relying upon the evidence of P.Ws.2 and 5 the trial Court acquitted all, but accused Jogi @ Jogendra Swain of all charges. Learned counsel for the petitioner submitted that the trial Court did not properly scrutinize the evidence of P.Ws.2 and 5 for which it arrived at a erroneous conclusion. On perusal of the evidence of P.W.2 it is found that accused Rama dealt a Lathi blow aiming at the head of deceased RajKishore Patnaik, but as the later warded it off by raising both his hands, the blow struck on his forehead. After being assaulted when the deceased was coming out of the disputed Bari, accused Sankar caught hold of him, whereafter accused Jogendra dealt two Farsa blows on his head. During cross-examination P.W.2 stated that except accused Rama, Babuli, Anam and Jogi he did not see any other accused person on the scene of occurrence. So as per his evidence in cross examination, accused Sankar was not present at the spot during the alleged incident. It transpires fro the evidence of P.W.5 that on the date of occurrence at about 7.00 A.M., while he was raising a wall in his house, hearing hullah from the side of village road, he went to the Bari of P.W.1 and saw accused Sankar caught hold of the deceased, while accused Jogi dealt two Farsa blows on his head, in consequence of which the deceased fell down. He did not see anybody else during that time at the spot. So the evidence of P.W.2 that accused Rama assaulted the deceased with Lathi is not safe to be accepted. It is found from the evidence of the I.O. that P.W.2 stated before him that Sankar Naik caught hold of the deceased Raj Kishore Patnaik and snatched away the lathi from Jogeswar. If this part of his evidence is accepted to be correct, then accused Sankar had no intention that the deceased would be assaulted by accused Jogeswar. During cross-examination P.W.5 further stated that when he went to the disputed Bari, he saw the deceased and heard him talking in a loud voice in presence of his relations. At that time accused Jogi suddenly came near the deceased and dealt two Farsa blows on his head. During cross-examination P.W.5 further stated that when he went to the disputed Bari, he saw the deceased and heard him talking in a loud voice in presence of his relations. At that time accused Jogi suddenly came near the deceased and dealt two Farsa blows on his head. So his evidence in examination-in-chief that while the deceased was returning back, accused Sankar caught hold of him cannot be relied upon. The trial Court after scanning the evidence carefully acquitted all the Opp.parties including Rama Naik and Sankar Naik. So the submission of learned counsel for the petitioner can not be ac¬cepted. 4. There is no glaring procedural defect or magnificent error in the judgment of the trial Court. It cannot also be said that the trial Court did not take the material evidence into consideration, while acquitting Rama and Sankar and all other opp.Parties. So, I do not find any reason to set aside the order of acquittal passed against Rama and Sankar and other opp.par¬ties. Further, the alleged occurrence took place on 15.5.1985. The Opp.parties faced the ordeal of trial till 17.12.1991, when the judgment was pronounced. The present appeal is pending before this Court since 1994. So, at this belated stage it would be travesty of justice to set aside the order of acquittal passed in favour of the opp.parties and remand the case to the trial Court for fresh trial. Therefore, under such premises the Criminal Revision stands dismissed. Revision dismissed.