Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 67 (ORI)

STATE OF ORISSA v. PRATAP CHANDRA SAHOO

2009-01-27

P.K.TRIPATHY, SANJU PANDA

body2009
JUDGMENT : P.K. Tripathy, J. - Heard. The Government Appeal bearing no merit is dismissed and the grounds thereof are as follows: 2. The Respondents faced trial in Sessions Trial No. 24/164 of 1993 in the Court of Addl. Sessions Judge, Balasore for the charge under Sections 120-B/458/302 Indian Penal Code on the allegations that in the night between 6th and 7th April, 1993 at about 1.00 A.M, they intentionally committed murder of the deceased, Amulya Nayak after making a conspiracy and thereafter lurking house trespass by night. 3. According to the prosecution, there was bad blood between the informant family of which the deceased was a member and the family of the accused persons. On 4.4.1993 accused Ganapati had given a threatening to the deceased and the informant to attempt on their life. In the night of 6th and 7th April, 1993 at about 1.15 A.M, Kumari Gitarani Nayak (P.W.21) raised hulla and the other inmates got up and ultimately discovered that the internal door to the room of the deceased was bolted from inside. When they went to the external door, they found that the door was open but the deceased was lying injured with profuse bleeding injuries on the right side chest and other parts of the body. He was unable to speak though attempted and therefore he was shifted to Primary Health Centre, Soro and Dr. Krupasindhu Mishra (P.W.11) attended him medically. After stitching the wound and applying the medicines, he advised the companions to shift the deceased to the District Headquarters Hospital, Balasore. After reaching Balasore hospital, the deceased was found dead. In the meantime, the informant (P.W.1) went and lodged the FIR and set the law into motion. 4. Investigation was undertaken with the aid and assistance of the Scientific Officer, Finger Print Experts and Executive Magistrate and ultimately charge-sheet was submitted and the Respondents faced trial for the aforesaid offences. 5. Respondents took the plea of denial but did not adduce any oral evidence as against the evidence of 27 witnesses from the side of the prosecution together with 75 documents marked as Exts.1 to 75 and the material objects marked as M. Os.I to XXIV. However, the Respondents relied on Ext.A, i.e., signature of Respondent Debendra Prasad Naik in the inquest report Ext. However, the Respondents relied on Ext.A, i.e., signature of Respondent Debendra Prasad Naik in the inquest report Ext. 2 and Order Dated 23.6.1986 in R.O.R Case No. 228/79 of the Court of Tahasildar, Soro marked as Ext.B. 6. In the F.I.R, it was mentioned that the culprit was unknown. In the Court P.W. 1 the sister of the deceased deposed as an eye-witness to the occurrence. Trial Court disbelieved her for good reasons and Learned Standing Counsel while assailing the order of acquittal is unable to counter the reasoning assigned by the Trial Court for discarding her evidence, as untruthful. 7. Learned Addl. Sessions Judge, considered the evidence of P. Ws.3, 15 and 19 who deposed about the conduct of the accused persons moving in the late night, i.e., at about 3.00 AM in the occurrence night and for good reason assigned in the Judgment, he found such evidence to be not creditworthy. In course of his submission, Learned Standing Counsel is unable to establish that the finding of the Trial Court is perverse or illegal. Under such circumstances, the view taken by the Trial Court on the non? credibility of P. Ws.3, 15 and 19 is found to be correct. 8. Learned Addl. Sessions Judge at the out set of the judgment recorded the admitted fact position regarding homicidal death of the deceased after sustaining injuries by means of a weapon like sword and that he was shifted to the Soro PHC and then to the District Headquarters Hospital, Balasore for treatment and was found dead at the latter place. The Respondents do not challenge that part of the finding of the Trial Court. Learned Addl. Sessions Judge took up other circumstantial evidence into consideration, such as, the finger print found from two bottles supposed to have contained Acid and a broken bottle and discovery of finger prints of some of the Respondents in course of examination by the Finger Print Expert. Learned Addl. Sessions Judge stated that such evidence ipso facto does not prove that Respondents were at the spot or that they were the author of the homicidal death of the deceased. In that respect, he said that the other view is also possible and plausible that somebody else might have put those bottles at the scene of occurrence and that probability cannot be ruled out. In that respect, he said that the other view is also possible and plausible that somebody else might have put those bottles at the scene of occurrence and that probability cannot be ruled out. Therefore, availability of the bottles at the scene of occurrence does not prove the case against the Respondents. We do not find the aforesaid reasonings assigned by the Trial Court to be unreasonable, illegal or perverse though Learned Standing Counsel strongly argues against the reasonings assigned by the Trial Court. 9. Learned Addl. Sessions Judge also rejected the contents of the letter written to P.W. 16 and certain admissions contained in such letters. Such documents were marked as Material Objects. Therefore, those documents cannot be accepted as documentary evidence. Apart from that, P.W. 20 did not support the prosecution that she produced those letters for seizure by the investigating officer. Hand-writing of the concerned Respondents was not collected in presence of the Magistrate or in course of the investigation after arrest of the concerned accused. Therefore, we find sufficient reason to discard the argument of the Appellant State and adhere to and accept the reasonings assigned by the Trial Court. Learned Addl Sessions Judge also rejected the evidence adduced by the prosecution on the identity of the sword M.O.I and the evidence of P.W. 20 for his failure in the T.I. parade to identify the sword. Learned Addl Sessions Judge also opined that the statement u/s 164 Code of Criminal Procedure. of P. Ws.6, 8 and 20 and the witnesses who were not examined in course of the trial cannot be utilized as evidence. We find sufficient legal force in that respect. Under such circumstance, we find that Learned Addl. Sessions Judge for good reasons assigned has granted benefit of doubt to the Respondents and acquitted them. 10. It is settled principle of law that while sitting in appeal against order of acquittal, the Appellate Court is not to interfere with the order of acquittal unless it finds that the order of acquittal suffers from illegality, perversity or otherwise not just and proper. At the cost of repetition, we find that on reasonable grounds and correct appreciation of evidence, the Trial Court granted benefit of doubt to the Respondents and therefore we do not want to interfere with the same. 11. Accordingly, as stated above, the Government Appeal is dismissed. Final Result : Dismissed