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2011 DIGILAW 56 (ORI)

STATE OF ORISSA v. SANKAR BHANJA

2011-01-24

B.K.NAYAK, PRADIP MOHANTY

body2011
JUDGMENT : Pradip Mohanty, J. - This appeal is directed against the judgment and order passed by the Learned Sessions Judge, Cuttack in acquitting the Respondents from the charges under Sections 302, 404, 201, 379 and 411 of the Indian Penal Code in Sessions Trial No. 14 of 1986. 2. The case of the prosecution, in short is that on 04.09.1985 evening deceased Balaram Panda alias Balia Nana went on a Stoll as usual, but he did not return home till late night. The family members of the deceased searched for him. But his whereabouts could not be ascertained. On 05.09.1985 in the early morning patches of blood and blood stains were found near the stairs of Sahkareswar temple and a pair of false teeth, match box, one torn sacred thread were also lying in between the stairs leading to the Sankareswar temple and the Tulasi Chaura. There were also marks of struggle. On the southern-eastern fenee a piece of torn lungi, patches of blood and a blood stained Turkish towel were recovered which belonged to the deceased. P.W.1 the brother of the deceased reported; the matter at the P.S. Thereafter, the (sic) registered the case took up investigation and ultimately filed Charge Sheet against the present Respondents under Sections 302, 404, 201, 379 and 411 of the Indian Penal Code. 3. The plea of the Respondent was complete denial of the charges brought against them. 4. Prosecution has examined as many as 14 witnesses including the I.O. and the doctor and exhibited 21 documents. The defence has examined none. 5. The Trial Court framed charge against the Respondents under Sections 302/404/201/379/404/411 I.P.C. On consideration of prosecution evidence, the Trial Court came to conclusion that the death of deceased Balaram Panda is shrouded in mystery and there is no legal proof regarding complicity of Respondents with the alleged crime and hence acquitted the Respondents of the charges giving benefit of doubt. 6. Mr. Rath, learned Additional Standing Counsel appearing for the Appellant urged that the Trial Court failed to appreciate the evidence adduced by the Appellants and so he erroneously came conclusion that there was no legal proof regarding the complicity of Respondents with the alleged crime. He also urged that Respondent No. 1 Sankar led the police and the witnesses to the place of concealment and made discovery of weapon which was stained with blood. He also urged that Respondent No. 1 Sankar led the police and the witnesses to the place of concealment and made discovery of weapon which was stained with blood. The gold chain was recovered from the possession of Respondent No. 2-Dhruba Prasad Rana and he also confessed before the I.O. that the chain was handed over by Respondent No. 1 in spite of such evidence the Trial Court acquitted the Respondents. 7. Mr. Jena, Learned Counsel appearing for the Respondents urged that the appreciation of evidence by the Trial Court was proper. The conviction cannot be made only basing upon the discovery of knife and the bloodstain found on the same. He also urged that in the facts and circumstances of the case, this Court should not have interfered with the order of acquittal. 8. Perused the L.C.R. P.W.2 states that while in custody Respondent No. 2 led the police and witnesses and gave recovery of gold chain and a locket from a hole of a bamboo piece. This goes to show that Respondent No. 2 must pave concealed the gold chain in the said bamboo or else he could not have easily brought out the same specially when a number of bamboo pieces must have been used in the thatch of P.W.4. P.Ws.3 and 4 corroborated the above evidence of P.W.2. P.Ws.2 and 3, who are witnesses to the recovery of knife, stated that Shankar Bhanj (Respondent No. 1) while in police custody gave recovery of the knife. They specifically stated that the Respondent No. 1 led the I.O. along with the witnesses to his bari and gave discovery of knife, M.O. IV from the heap of filth deposited, the I.O. seized the same, they put signature in the said seizure list. The above evidence is admissible u/s 27 of the Evidence Act. 9. By a series of decisions law has been settled that a judgment of acquittal should not be interfered with unless the assessment of evidence and conclusion drawn by the Trial Court are very unreasonable, erroneous and perverse. The reversal of judgment of acquittal will not be justified merely on the ground that the Appellate court's view of the evidence on record is different from that of the Trial Court or in the set of evidence, two views are reasonably possible, views of the Trial Court are not to be brushed aside. In Balbir Singh Vs. The reversal of judgment of acquittal will not be justified merely on the ground that the Appellate court's view of the evidence on record is different from that of the Trial Court or in the set of evidence, two views are reasonably possible, views of the Trial Court are not to be brushed aside. In Balbir Singh Vs. State of Punjab, it was held that the High Court has full power to review the evidence upon which the order of acquittal is founded. It is equally well settled that the presumption of innocence of the accused persons is further reinforced by his acquittal by the Trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration, since the Trial Court had opportunities of seeing demeanor of witnesses. There must be substantial and compelling reasons for the Appellate court to come to a conclusion different from that of the trial judge. In 1979 SCC (Crl.) 568, Salim Zia v. State of Uttar Pradesh it was held that the Appellate court in an appeal against acquittal can review the entire evidence and come to its own conclusion. In Mehtab Singh and Others Vs. The State of Madhya Pradesh, it was held that if two views of evidence are reasonably possible, the Appellate Court ought not to disturb a finding of acquittal. Identical views were taken in State of Orissa Vs. Dolagobinda Nanda, . In the decision reported in AIR 1979 S.C. 1042 Babboo v. State of M.P. it was held that mere discovery of the knife in pursuance of the information of the accused is not sufficient to convict him for the offence of murder. It has been held in the aforesaid case, the confessional statement to police officer is hit by the provisions of Section 25 of the Evidence Act, The recoveries hardly have any probative value if there is no substantive evidence. 10. Keeping this view in mid, this Court re-evaluates both oral as well as documentary evidence adduced by the prosecution. There is no evidence that the gold chain belongs to the deceased and he was wearing before his death. There is no material that how it was with Dhruba Prasad Rana, Respondent No. 2. Mere recovery of knife stained with human blood is not sufficient to convict the Respondent No. 1. There is no evidence that the gold chain belongs to the deceased and he was wearing before his death. There is no material that how it was with Dhruba Prasad Rana, Respondent No. 2. Mere recovery of knife stained with human blood is not sufficient to convict the Respondent No. 1. By applying the ratio decided in Babboo and others (supra) this Court holds that recovery of M.O. IV in pursuance of the information of the Respondent No. 1. Shankar and recovery of chain from Respondent No. 2 is not sufficient to convict any of them for the offence of murder of the deceased. The recoveries hardly have any probative value if there is no substantive evidence. Moreover the circumstance of this case undoubtedly creates suspicion against the Respondents. Suspicion by itself however strong it may be is not sufficient to take the place of proof and warrant of finding of guilt of the Respondents. Even if it is presumed that the blood stained knife which was recovered from the bari of the Respondents, that is not sufficient to convict the Respondents. 11. In view of the above reason, there is no legal proof regarding complicity of the Respondents with the alleged crime. There is no infirmity or illegality committed by the Trial Court in acquitting the Respondents. Hence called for, no interference. 12. In the result, Government Appeal is dismissed. B.K. Nayak, J. 13. I agree. Final Result : Dismissed