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2013 DIGILAW 490 (ORI)

Damodar Prasad Mohanty v. Biranchi Kar

2013-12-11

B.K.NAYAK

body2013
JUDGMENT B.K. NAYAK, J. : This revision has been filed challenging the judgment and order of acquittal dated 23.06.2003 passed by the learned Ad hoc Additional Sessions Judge (Fast Track Court No.1), Cuttack in Criminal Appeal No.36 of 2002 setting aside the judgment dated 06.04.2002/10.04.2002 passed by the learned S.D.J.M.(S), Cuttack in G.R. Case No.485/91 (Trial No.5062 of 1991) convicting the accused-opposite parties under Section 323 of the I.P.C., and releasing them under Section 3 of the Probation of Offenders Act. 2.The opposite parties were prosecuted in the aforesaid G.R. Case for allegedly committing offences under Sections 341/323/294/506 of the I.P.C. 3.The prosecution case in brief is that on 08.04.1991 at about 1.15 P.M. the informant, who is a Senior Lawyer, returned from the Court to his house. While going to put his motor car in his garage, he found that some customers of nearly ‘Satyadham Hotel’ had parked their bicycles in front of his garage leaning against the garage door. When the informant opened to the garage door, two number of bicycles fell down, whereupon accused-opposite party No.3-Manoj Kumar Jena raised protest and the other two accused persons, namely, Biranchi Kumar Kar and Jagannath Mishra joined him and all three of them attacked the informant and his son, Prem Kumar Mohanty (P.W.3). Accused-Jagannath Mishra instigated saying “SALANKU MARA” and accused-Manoj assaulted P.W.3 by fist blows on his face and accused-Jagannath Mishra assaulted the informant by fist blows on the left side of the head causing bleeding injuries. 4.The informant lodged F.I.R. at the Purighat Police Station and the case was investigated by an A.S.I. During the course of investigation the informant and P.W.3 were medically examined on police requisition. On completion of investigation charge-sheet was submitted against the opposite parties under Sections 341/323/294/506 of the I.P.C. 5.The defence plea was one of complete denial and false implication. During their examination under Section 313, Cr.P.C. accused Jagannath Mishra and Biranchi Kumar Kar also stated that a false case was initiated against them by the informant due to civil dispute. 6.During trial the prosecution examined five witnesses in all. P.W.1 is the informant and P.W.3 is his son, P.W.2 is the lady Medical Officer, who examined P.Ws.1 and 3 on police requisition, P.W.4 is the Investigating Officer, and P.W.5 is an independent witness. The accused persons examined one witness in support of their defence. 6.During trial the prosecution examined five witnesses in all. P.W.1 is the informant and P.W.3 is his son, P.W.2 is the lady Medical Officer, who examined P.Ws.1 and 3 on police requisition, P.W.4 is the Investigating Officer, and P.W.5 is an independent witness. The accused persons examined one witness in support of their defence. 7.Initially the G.R. Case was tried by the J.M.F.C., Cuttack, who by judgment dated 21.11.1994 acquitted the accused persons. The acquittal order was challenged by the petitioner before this Court in Criminal Revision No.116 of 1995. By judgment dated 05.11.2001 this Court allowed the revision, set aside the order of acquittal passed by the learned J.M.F.C. and remanded the G.R. Case to the learned S.D.J.M. (S), Cuttack for disposal after hearing fresh arguments from the parties. 8.After remand the learned S.D.J.M. on consideration of the evidence on record acquitted the accused persons of the charges under Sections 341/294/506 of the I.P.C. but convicted them for commission of offence under Section 323 of the I.P.C., but instead of awarding any sentence, it released the accused-opposite parties under Section 3 of the Probation of Offenders Act after due admonition. The opposite parties filed Criminal Appeal No.36 of 2002 challenging the aforesaid order of conviction and the learned Ad hoc Additional Sessions Judge (FTC-I), Cuttack by the impugned judgment found the accused persons not guilty of the offence under Section 323 of the I.P.C. and accordingly set aside their conviction. 9.Before going to deal with the contentions raised in this revision, it is necessary to notice a few more facts. While the present opposite parties challenged the order of conviction passed by the learned S.D.J.M., Cuttack in filing the Criminal Appeal as aforesaid, the petitioner filed Criminal Revision No.35 of 2002 before the Sessions Judge, Cuttack challenging the order of the learned S.D.J.M., in so far as it related to releasing the accused persons under Section 3 of the Probation of Offenders Act. While the Criminal Appeal filed by the accused persons was disposed by the learned Ad hoc Additional Sessions Judge on 23.6.2003, the petitioner’s Criminal Revision No.35 of 2002 was disposed by the learned Sessions Judge by judgment dated 27.01.2005. The revision was dismissed on two grounds. While the Criminal Appeal filed by the accused persons was disposed by the learned Ad hoc Additional Sessions Judge on 23.6.2003, the petitioner’s Criminal Revision No.35 of 2002 was disposed by the learned Sessions Judge by judgment dated 27.01.2005. The revision was dismissed on two grounds. Firstly, the order of conviction and release of the convicts under Section 3 of the Probation of Offenders Act had already been set aside in appeal by the learned Ad hoc Additional Sessions Judge and, therefore, the legality of the order of probation passed by the learned S.D.J.M., was no more available to be considered and, secondly, the revision against the order of probation under Section 3 of the Probation of Offenders Act was not maintainable. The petitioner filed W.P.(Crl.) No.97 of 2005 challenging both the judgments, namely, the appellate judgment passed by the learned Ad hoc Additional Sessions Judge in Criminal Appeal No.36 of 2002 and the judgment passed by the learned Sessions Judge in Criminal Revision No.35 of 2002. Being confronted with the defect that both the judgments could not have been challenged in a single criminal writ petition, the petitioner filed a memo stating that he would confine and press the criminal writ petition only against the judgment passed by the learned Sessions Judge in Criminal Revision and that he would file a separate revision challenging the appellate order of acquittal of the accused persons. Accordingly, he took back the certified copy of the appellate judgment and filed the present criminal revision challenging the appellate order of acquittal of the accused persons. W.P.(Crl.) No.97 of 2005 was dismissed by a Division Bench of this Court on 13.02.2006 holding that the finding of the learned Sessions Judge in his judgment in the criminal revision was correct and that the order of conviction having been set aside in appeal, the order of releasing the accused persons under Section 3 of the Probation of Offenders Act has also been set aside and, therefore, the matter has become infructuous. 10.In assailing the impugned judgment it was submitted by the appellant that the lower appellate Court has not appreciated the evidence on record in its proper perspective and that it wrongly said that the evidence of P.W.5 was untrustworthy as because the said witness was a chance witness. 10.In assailing the impugned judgment it was submitted by the appellant that the lower appellate Court has not appreciated the evidence on record in its proper perspective and that it wrongly said that the evidence of P.W.5 was untrustworthy as because the said witness was a chance witness. It is his submission that the appellate Court has disbelieved the evidence of injured witnesses (P.Ws.1 and 3) on the ground that it is not consistent with the injury report and that P.Ws.1 and 3 being in inimical terms with accused-Jagannath their evidence is not acceptable and that such reasons are legally untenable. 11.Learned counsel appearing for the opposite parties-accused, on the other hand, submits that the scope of revisional power against an order of acquittal is very very limited. The order of acquittal can be interfered by the High Court only in exceptional circumstances and that where two views are possible the view taken by the Court below should not be interfered with. It is his further submission that the lower appellate Court in the instant case has given cogent reasons in support of the order of the acquittal and even assuming that another view may be possible, the lower Court’s order of acquittal should not be interfered with. 12.The apex Court in the case of K. Ramachandran v. V.N. Rajan and another : (2009) 44 OCR (SC) 15 while considering the scope of High Courts’ revisional jurisdiction against an order of acquittal, reiterated the judgment in Akalu Ahir and others v. Ramdeo Ram : (1973) 2 SCC 583 wherein the categories of cases in which the High Court would be justified in interfering with the finding of acquittal in exercise of its power of revision have been enumerated. The categories are as follows : “(i)Where the Trial Court has no jurisdiction to try the case, but has still acquitted the appellant-accused. The categories are as follows : “(i)Where the Trial Court has no jurisdiction to try the case, but has still acquitted the appellant-accused. (ii)Where the Trial Court has wrongly shut out evidence which the prosecution wished to produce; (iii)Where the Appellate Court has wrongly held the evidence which was admittedly by the Trial Court to be inadmissible; (iv)Where the material evidence has been overlooked (either) by the Trial Court or by the Appellate Court; and (v)Where the acquittal is based on the compounding of the offence which is invalid under the law.” It was further held as follows : “Of course, these categories were declared by this Court to be illustrative and this Court observed that other cases of similar nature could also be properly held to be exceptional in nature where the High Court could justifiably interfere with the order of acquittal. In this very judgment though in paragraph-10, this Court did not generally approve of the appreciation of evidence by the Trial Court Judge and held it to be not perfect or free from flaw and further observed “the Court of appeal may be justified in disagreeing with the conclusion, but it does not follow that on revision by a private complainant, the High Court is not entitled to re-appreciate the evidence for itself as if it is acting as a Court of appeal and then order a re-trial.” It has also been held by the apex Court in the case of Sheetala Prasad and others v. Srikant and another : (2010) 45 OCR (SC) 711 as follows : “9. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the Trial Court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the Trial Court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the Trial Court or the Appellate Court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice require interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered.” 13.Learned counsel for the accused-opposite parties cited a large number of decisions regarding the power of judicial review by the High Court under Article 226 and 227, which are not relevant for this case. 14.The lower appellate Court in the instant case has recorded finding of acquittal discarding the evidence of P.W.5 as a chance witness and because of other infirmities. It also disbelieved the evidence of the injured witnesses P.Ws.1 and 3 on the ground that they are admittedly in inimical terms with accused-Jagannath and civil and criminal litigations are being fought between them and that there is admittedly a counter case on the basis of report lodged by accused-Jagannath in which Jagannath was injured and medically examined and the prosecution has not come with clean hand as it has suppressed the injuries sustained by accused-Jagannath in the same incident. The appellate Court has also found that none of the neighbours of the parties support the prosecution case and on the contrary the evidence of D.W.1, who has a betel shop near the place of occurrence, goes to show that it is P.Ws.1 and 3, who assaulted he accused persons. It is also found by the lower appellate Court that the medical evidence is not consistent with the oral evidence of P.Ws.1 and 3 with regard to the injuries. 15.On going through the evidence of P.W.1, it is found that he was dealt with several blows by accused-Jagannath, who had worn 3 to 4 sliver rings on his right fingers, as a result of which P.W.1 sustained bleeding injuries on his forehead. He also received swelling injury on his cheeck. However, doctor found one abrasion and no bleeding injury. Similarly, the evidence of P.W.3 with regard to his own injury is not fully consistent with the medical evidence of the doctor, P.W.2 and the injury report. P.W.1 although states that nearby house owners were present when the occurrence took place, but when he was suggested the names of the house owners situated near his garage, where the occurrence took place, he pleaded ignorance. P.W.1 clearly admits that he is in inimical terms with the accused persons as there are civil and criminal litigations pending between them. Although it is stated that some persons were eating in the hostel situated near place of the occurrence, none of such persons has been examined. On the contrary P.W.5, who is not a charge-sheet witness was examined only during trial and from the evidence of the said witness it is clear that he does not stay in the street where the occurrence took place and he never before used to dine in the hotel concerned and that for the first time he had gone to the hotel on that day. He states in cross-examination that he was unable to say how many persons had gathered on the occurrence spot at the time of occurrence. He is unable to say the duration of the occurrence. Evidently, P.W.5 is a chance witness as held by the lower appellate Court. He states in cross-examination that he was unable to say how many persons had gathered on the occurrence spot at the time of occurrence. He is unable to say the duration of the occurrence. Evidently, P.W.5 is a chance witness as held by the lower appellate Court. The I.O. P.W.4 admitted in his evidence that a counter case was initiated against the petitioner (P.W.1) and his son, P.W.3 in respect of the same occurrence and P.W.4 also investigated the said counter case and sent the injured persons of that case for medical examination. He also admits that the place of occurrence was a busy place and there are houses on both sides of the road where the occurrence took place. He states that he has examined some persons of the locality and also some persons, who were taking Tiffin in a nearby hotel, but none of them supported the prosecution case. Similarly D.W.1 speaks about assault on the accused persons by P.Ws.1 and 3. He has a betel shop near the place of the occurrence and, therefore, his presence cannot be doubted. 16.Considering all the above aspects, the lower appellate Court doubted the veracity of the prosecution case and granted the benefit of such doubt to the accused-opposite parties and acquitted them. On going through the impugned judgment and the evidence on record, I find that the view taken by the lower appellate Court is a possible view. Even though another view may be possible, this Court in exercise of its revisional power under Section 401, Cr.P.C. is not entitled to interfere with the impugned order of acquittal. Hence, the revision has no merit and is accordingly dismissed. In view of dismissal of the revision, the petition filed by the petitioner with a prayer to sentence the accused persons after restoring the order of conviction instead of releasing them on probation is liable to be dismissed and accordingly it is dismissed as such. Revision dismissed.