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2010 DIGILAW 76 (ORI)

Nilakantha Pradhan v. State of Orissa

2010-02-05

S.K.MISHRA

body2010
JUDGMENT S. K. MISHRA, J. — On consent of the learned counsels for both the parties, the criminal Revision is disposed of at the stage of admission. 2. In this Criminal Revision, the petitioner assails the judgment of acquittal dated 24.10.2005 passed by the learned Adhoc Additional Sessions Judge, F.T.C. No.I, Puri in Sessions Trial No.96/261 of 2003/2002 whereby he acquitted the accused-Opp.Parties of the offences under Sections 447, 294, 506, 324, 325, 307, 337/34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” for brevity). 3. Short facts of the case are that on 4.12.1999 the informant Nilakantha Pradhan went to his land for cutting paddy along with his brother, it is alleged that during their absence, the accused persons being armed with deadly weapons came to the Bari side door of his house and started abusing his father Lax¬man. When Laxman opened the door, all of them attacked him. When he fell down on the ground, accused Rabindra, Dusa, Surendra and Suka assaulted him by dealing blows with swords. The other ac¬cused persons also assaulted him by means of Thengas causing severe bleeding injuries on his person. Accused Hina and Phula started pelting stones. On being informed, Nilakantha came run¬ning to the spot but the accused persons threatened to kill him. Satrughana Panda, Sahadev Panda, Shyama Panda and Pabana Panda arrived there. Seeing them, the accused persons left the place. On the same day at about 11.45 A.M., the informant lodged a report regarding the occurrence in the Satyabadi Police Station. The Officer in charge, Satyabadi Police Station took up the investigation. In course of investigation, the injured was exam¬ined by the doctor. After completion of investigation, the Inves¬tigating Officer submitted the charge-sheet. 4. The accused took the plea of complete denial of the prosecution case. 5. In order to establish the charges against the accused persons, prosecution examined seven witnesses, out of whom P.W.3 Nilakantha Pradhan is the informant and father of P.W.2 Sabita Pradhan. P.W.5 Laxman Pradhan is the injured and was examined by P.W.6 Dr. Haribandhu Mishra on police requisition. P.W.1 Satrugh¬ana Pradhan and P.W.4 Shyama Pahanda were examined as independent eye witnesses to the occurrence. P.W.7 D.K. Tripathy is the Investigating Officer of the case. None were examined on behalf of the defence. 6. P.W.5 Laxman Pradhan is the injured and was examined by P.W.6 Dr. Haribandhu Mishra on police requisition. P.W.1 Satrugh¬ana Pradhan and P.W.4 Shyama Pahanda were examined as independent eye witnesses to the occurrence. P.W.7 D.K. Tripathy is the Investigating Officer of the case. None were examined on behalf of the defence. 6. The learned trial Court, after discussing the evidence on record, held that the prosecution has failed to prove its case and hence acquitted the accused persons of the offences invoking Section 235(1) of the Code of Criminal Procedure, 1973 (hereinaf¬ter referred to as “the Code” for brevity) due to want of suffi¬cient evidence. 7. In course of hearing of the revision, the learned counsel for the petitioner pointed out several infirmities in the judgment and argued to set aside the order of acquittal. The learned counsel for Opp.Parties No.2 to 11, on the other hand, supported the findings recorded by the learned trial Court and further urged that the revisional Court should not lightly inter¬fere with the order of acquittal of the lower Court. Way back in 1962, the apex Court in K. Chinnaswamy Reddy v. State of Andhra Pradesh and another, reported in A.I.R. 1962 SC 1788 : (1963) 3 SCR 412 has laid down that it is open to a High Court in revision to set aside an order of acquittal even at the instance of the private parties, though the State may not have thought it fit to appeal. However the apex Court cautioned that the jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 of the Code of Criminal Procedure, 1908 forbids the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. The apex Court has further ruled that only in exceptional cases such power should be exercised. But it is not possible to lay down the criteria for determining such excep¬tional cases which would cover all contingencies. The apex Court has further ruled that only in exceptional cases such power should be exercised. But it is not possible to lay down the criteria for determining such excep¬tional cases which would cover all contingencies. However, the apex Court has pointed out that where the trial Court has no jurisdiction to try the case but has still acquitted the accused or where the trial Court has wrongly shut-out evidence or where the appeal Court has wrongly held evidence which was admitted by trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding of the offence which are not compoundable, are instances in which revisional power can be exercised for setting aside of the order of acquittal. In Logendranath Jha & others v. Shri Polailal Biswas, (1951) SCR 676; the Apex Court has cautioned against a discussion of the evidence and expressing opinion in the judgment in a Criminal Revision against acquittal on the ground that there can be little doubt that by doing so he shall load the dice against the appellants, and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general. 8. Applying the principle to the case in hand, it is the duty of the Court not to discuss the evidence but to see that if the order passed by the learned Adhoc Additional Sessions Judge requires interference of this Court. In this case, the statement of P.W.5 Laxman Pradhan, the injured himself, who has sustained six injuries out of which three are grievous in nature, has been brushed aside by the learned trial Court rather perfunctorily. It is seen that the learned trial Court has taken into consideration the non-mentioning of the name of P.W.4 Shyam Pahanda in the FIR and has held that the presence of the said witness at the spot is ruled out. At the same time, he has taken into consideration the evidence of P.W.4 Shyam Pahanda to discredit the evidence of the injured P.W.5 Laxman Pradhan. At the same time, he has taken into consideration the evidence of P.W.4 Shyam Pahanda to discredit the evidence of the injured P.W.5 Laxman Pradhan. The evidence of the witnesses has not been discussed and appreciated in their proper perspective against the accepted canons of appreciation of evidence and the testimony of most of the witnesses have not been properly dis¬cussed in the judgment consisting of proper reasoning and lack of judicial approach. The propriety has been entirely ignored and as pointed out earlier at one stage, the lower Court looking into the evidence held that the presence of P.W.4 has not been proved because the name was not mentioned in the FIR, such finding is against the settled principle of law that F.I.R. is not an ency¬clopedia. The lower Court also committed gross illegality by taking into his evidence to find out fault in the evidence of the injured. 9. The apex Court in Bindeswari Prasad Singh @ B.P. Singh and others v. State of Bihar and Others, (2002)23 OCR SC 476 has held that an order of acquittal cannot be interfered by the High Court in revision but in exceptional cases, where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The apex Court has further ruled that the High Court will not be justified in interfering with an order of acquittal merely because the trial Court has taken a wrong view of the law or has erred in appreciation of evidence. 10. In this case, however, the machinations shown by the trial Court in appreciation of evidence cannot be held to be a simple error in appreciation of evidence. In fact, the whole approach of the trial Court has resulted in manifest illegality and gross miscarriage of justice. 11. Keeping in view the aforesaid considerations, this Court holds that the order of acquittal recorded by the trial Court cannot be sustained and requires interference of the revi¬sional Court. 12. In the result, the Criminal Revision succeeds, the judgment of acquittal dated 24.10.2005 passed by the learned Adhoc Additional Sessions Judge, FTC No.1, Puri is hereby set aside and the case is remitted to the trial Court for re-hearing of the argument and to decide the case afresh. The Opposite parties 2 to 11 are directed to appear before the learned Adhoc Addl. The Opposite parties 2 to 11 are directed to appear before the learned Adhoc Addl. Sessions Judge, (F.T.C.-I), Puri on 8.2.2010 without fail. On that date, the learned trial Court shall release them of furnishing fresh bail bond on the same conditions they were released during trial. Send back the LCR immediately. Cri. Revision Succeeds.