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2009 DIGILAW 772 (ORI)

STATE OF ORISSA v. GURUBARIA MUNDA

2009-10-12

A.S.NAIDU, B.N.MAHAPATRA

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JUDGMENT : A.S. Naidu, J. - The judgment dated 30th October, 1996 passed by learned Addl.Sessions Judge, Sambalpur, acquitting the accused persons from the charges under Sections 302/34 of the Indian Penal Code in S.T. Case No. 224/27 of 1995-96 is assailed by the State in this Government Appeal. 2. Bereft of unnecessary details, the short facts leading to the prosecution case is that on 08.5.1995 at about 2.30 P.M. Punia Munda had been to the house of Budhuram Tirkey to borrow a "Bahungi" (bamboo bar) to carry goods. In the house of Punia Munda, Gana Munda was present and an altercation cropped up between Gana Munda and Punia Munda. In course of such quarrel, it is alleged that Punia Munda dealt a blow on the head of Gana Munda thereby causing bleeding injuries. It is also alleged that Gana Munda assaulted Punia Munda thereby causing injuries on his face, consequence of such assault Punia Munda lost his tooth. Thereafter Gana Munda and Punia Munda returned to their respective houses. Some times thereafter accused Maghu Munda and his brother Gurubaria came to the house of Punia Munda and asked him to accompany them so that the matter can be decided. Thereafter, Punia Munda proceeded to the village and his wife (P.W.2) followed him and after some time his son Bhudhu Munda, (P.W. 1) also followed him. It is alleged that on the way accused Gurubaria Munda caught hold of Punia Munda an accused Maghu Munda dealt a blow on the head of Punia Munda by means of one iron rod, as a result, Punia Munda fell down on the ground and sustained injuries. "Thereafter P.Ws.1 and 2 with the help of some of the villagers carried Punia Munda to the hospital for treatment and thereafter Punia Munda succumbed to the said injuries. 3. On the basis of the F.I.R., the O.I.C., Deogarh P.S. took up investigation, sent the dead body for post mortem, examined the witnesses, seized the blood stained earth, one iron rod and other materials at the instance of witnesses and after completion of investigation submitted charge sheet in G.R. Case No. 124/1995. Learned S.D.J.M., Deogarh, after perusing the police papers and on being satisfied that prima facie case was made out, took cognizance of the offences and committed the case to the Court of Session for trial. 4. The plea of the defence is complete denial. Learned S.D.J.M., Deogarh, after perusing the police papers and on being satisfied that prima facie case was made out, took cognizance of the offences and committed the case to the Court of Session for trial. 4. The plea of the defence is complete denial. It is stated that taking advantage of previous enmity, a false case has been foisted against them. No witness was examined on behalf of the defence. In order to establish their case, the prosecution got examined five witnesses and exhibited nine documents. They have also produced one iron rod and marked it as a material object. 5. Learned Addl. Sessions Judge after vivid discussion of the evidence, both oral and documentary, came to the conclusion that the prosecution had failed to prove its case beyond all reasonable doubt against the accused persons, consequently both the accused persons were acquitted u/s 235(1) of Code of Criminal Procedure 6. Learned Addl.Government Advocate assailed the judgment of the trial Court mainly on the ground that learned Addl. Sessions Judge has not properly appreciated the evidence and the conclusions arrived at are based on surmises and conjectures. It is further submitted that the evidence of P.W.1, who is the informant, is also very material and he being an after occurrence witness, the trial Court should have relied upon the said evidence. 7. The aforesaid submissions are strongly repudiated by Miss Sujata Dash, learned Counsel for the Respondents. 8. Heard learned Counsel for the parties at length. This Court being the final Court of facts went through the evidence, both oral and documentary, meticulously. P.W.4 is the doctor, who conducted autopsy over the deadbody. The post mortem report (Ext.5) and the evidence of P.W.4 lead to an irresistible conclusion that the death of Punia Munda was caused due to anti mortem injuries. Learned Addl.Sessions Judge after discussing the evidence has arrived at a conclusion that the death was homicidal in nature. After perusal of the evidence, we find that learned Addl.Sessions Judge has not committed any error and the aforesaid finding needs no interference. 9. The only other point which needs to be considered is, who is the author of the crime. To substantiate such plea the prosecution relies upon mainly on the evidences of two witnesses, i.e., P.W.1, who is the son of the deceased and P.W.2, who is the wife of an eye witness. 9. The only other point which needs to be considered is, who is the author of the crime. To substantiate such plea the prosecution relies upon mainly on the evidences of two witnesses, i.e., P.W.1, who is the son of the deceased and P.W.2, who is the wife of an eye witness. P.W.2 is an old lady of 60 years. Though in the examination-in-chief she had narrated the incident vividly and attributed the overt acts, in the cross-examination she has stated as follows : It is a fact I have not seen who were assaulting my husband. As the accused persons had come to our house to call my husband I suspected that they were assaulting my husband that the persons assaulting my husband were the accused persons. Apart from that, in the cross examination she had admitted that she has a poor eye sight and unable to see at the distance of 15 cubits. The only other witness upon which the prosecution relies is P.W.1, the informant. In the F.I.R., the said witness stated that he had seen the occurrence, but then in his deposition before the Court he stated that he was not accompanying his father and requested his mother (P.W.2) to accompany him. P.W.2 followed them and was proceeding at a distance. On hearing hullah from his mother (P.W.2) he rushed to the spot and found that the two Respondents were running away from the place of occurrence and one of them was holding an iron rod. The statement made by P.W.1, who is the informant, is contrary to the facts narrated by him in the F.I.R. That apart, though P.W.1 in his statement has clearly stated that his wife was also accompanying him, but then she has not been examined. 10. After going through the evidence of P. Ws.1 and 2 vis-a-vis the fact stated in the F.I.R. and the most vital fact that the wife of P.W.1, who was accompaning him has not been examined as a witness, there is a cloud of suspicion in the prosecution case. That apart, the incident took place in the year 1995 and fourteen years have passed in the meanwhile. After lapse of so many years, this Court is not inclined to interfere with the order of acquittal. 11. Reading of the entire evidence also reveals that no motive could be attributed to the accused persons. That apart, the incident took place in the year 1995 and fourteen years have passed in the meanwhile. After lapse of so many years, this Court is not inclined to interfere with the order of acquittal. 11. Reading of the entire evidence also reveals that no motive could be attributed to the accused persons. Thus, the prosecution has totally failed to establish that the accused persons had any intention to kill Punia Munda. Learned Sessions Judge has vividly discussed the evidence and the conclusions arrived at do not suffer from any infirmity. It is well settled that the appellate Court should be slow in reversing an order of acquittal and unless there are good and strong grounds, the order of acquittal should not be interfered with. (See Bahal Singh v. State of Harayana reported in AIR 1994 SC 606). It is now well settled that only when the appellate Court after going through the evidence arrives at a conclusion that the view taken by the trial Court in acquitting the accused is extremely perverse and is not reasonably sustainable then it can interfere with such an order of acquittal. It is also no more res integra that if the reasons given and conclusions arrived at by the trial Court are found to be just, the appellate Court may not interfere with the findings and order of acquittal, even if on perusal of the evidence the appellate Court feels that Anr. view is possible and the view taken is absurd and otherwise untenable in law and shocking to the commonsense. Accordingly, the Government Appeal stands dismissed. B.N. Mahapatra, J. 12. I agree. Final Result : Dismissed