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2014 DIGILAW 280 (ORI)

State of Orissa v. Santosh Sabat

2014-04-23

D.DASH

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Judgment Being aggrieved by an order of acquittal passed by learned Special Judge, Ganjam-Gajapati in G.R. Case No. 74 of 1995, acquitting the respondent of the charge under Section 341/294/354/323 of IPC and under Section 3(1)(x) of SC & ST (Prevention of Atrocities) Act, the State has preferred this appeal. 2. Prosecution case in short is that the respondent and informant P.W.3 with other injured persons, P.W.4, P.W.5 and P.W.8 hail from village Sumantapur under Patapur Police Station. On 22.03.1995 around 10.00 A.M., P.W.4 and 5, two minors were tending cattle. The respondent assaulted them with sticks alleging those cattle to have damaged the sugarcane grown on his land. It is also stated that the respondent abused them in filthy language. P.W.3 and 8 who had been to take, bath near the place of occurrence said to have witnessed the said incident. It is also the case of prosecution that P.W.4 and 5 being assaulted, rushed near P.W.3 and 8 for help when the respondent chased them and also further assaulted P.W.3 and 8 there when they protested, P.Ws. 3, 4, 5 and 8 are thus said to have been injured on account of such assault by the respondent. F.I.R. being lodged by P.W.3 at Patapur Police Station, necessary case was registered and finally on completion of investigation, chargesheet being submitted, the respondent faced the trial for the above offences. 3. During trial the respondent took the plea of denial. 4. Prosecution in order to bring home the charges against the respondent has examined 9 witnesses. P.W.3 is the informant, P.W.4, 5 and 8 are the injured persons. The doctor who had examined the injured persons is P.W.1, P.W.2, 6 and 7 are the co-villagers and the P.W.9 is the Investigating Officer. 5. The Trial Court on analysis of evidence of P.W. 3, 4, 5 and 8 has ultimately arrived at a conclusion that the prosecution has not been able to prove its case beyond reasonable doubt and thus the charges against the respondent were found to have not been established. Trial Court has found the evidence to be highly discrepant and also running contrary to be medical let in by the prosecution. So the evidence having been found to have been bristled with infirmities, the Trial Court has refused to place reliance on the same in fastening the guilt upon the respondent. 6. Trial Court has found the evidence to be highly discrepant and also running contrary to be medical let in by the prosecution. So the evidence having been found to have been bristled with infirmities, the Trial Court has refused to place reliance on the same in fastening the guilt upon the respondent. 6. Learned Counsel for the State submits that appreciation of evidence as made by the trial Court is not proper and on some flimsy ground, it has discarded the positive evidence of all the injured persons. It is also his submission that in this particular case the discrepancies as noted by the Trial Court are not that material so as to be viewed seriously. Therefore he urges that the finding of acquittal being based on improper appreciation of evidence is perverse and as such is liable to be interfered with. Learned counsel appearing for the respondent on the other hand supports the appreciation of evidence made by the Trial Court in submitting that the prosecution evidence having been properly analyzed, has been rightly refused to be acted upon. 7. The settled position of law regarding the powers to be exercised by High Court in an appeal against the order of acquittal is that while High Court has full powers to appreciate the evidence upon which an order of acquittal is based and to act on its own thereof, it will not do so lightly and will be slow to reverse an acquittal, except for strong and compelling reasons when it differs from that of the trial Court. The paramount consideration in the matter is to avoid miscarriage of justice. Of course where two views are possible and the trial Court has taken a reasonable view and acquitted the accused, the High Court in appeal cannot interfere with such finding but when there is perverse finding based on erroneous appreciation of evidence and a serious miscarriage of justice has been caused, the High Court has ample power to reverse that finding. 8. With such rival submission now it is necessary to examine the evidence of the prosecution witnesses in order to test the sustainability of the finding of acquittal recorded by the Trial Court in the touchstone of above settled principles. 8. With such rival submission now it is necessary to examine the evidence of the prosecution witnesses in order to test the sustainability of the finding of acquittal recorded by the Trial Court in the touchstone of above settled principles. It is the evidence of P.W.4 that she with P.W.5 had been to tend cattle near hillock when the respondent came there and assaulted them by means of bamboo stick alleging that those cattle had damaged the sugarcane crops grown on his land. It is further stated that P.W.4 and 5 rushed to P.W. 3 and 8 who were taking bath nearby and then the respondent also followed and assaulted P.W.3 and 8. This P.W.4 is not stating about any injuries to have been sustained by her or P.W.3 and so also P.W.5 and 8. P.W.5 has stated that she and P.W.4 had taken cattle for tending and the respondent assaulted them there. She has not stated anything that the respondent assaulted by means of a stick. She is also silent with regard to the injuries sustained by them. P.W.4 and 5 are two child witnesses, they have not stated to have sustained any injury on their person. Although Ext. 2 and 4 the injury reports have been admitted in evidence from, the side of prosecution through the doctor, P.W.1 in respect of P.W.4 and 8, the same are silent as regards any injury. When it is stated that the respondent had challenged first as regards the damage to his sugarcane crops, the investigation has not been directed to ascertain whether that narration if at all is correct or not. There has not been seizure of that bamboo stick said to have been used in assaulting prosecution witnesses. Even P.W.3 who has stated about his sustaining injury, she is silent as regards the seat of the injury resulting from the assault by the respondent. The doctor had found one abrasion on the person of the P.W.3 i.e., near forearm and his evidence is that said injury is likely to appear in the event of a dash against a wall. Similarly, P.W.3 who has been examined in the case has not stated that he was assaulted by means of a stick or otherwise. She has not breathed a word about any such injury on her person. Similarly, P.W.3 who has been examined in the case has not stated that he was assaulted by means of a stick or otherwise. She has not breathed a word about any such injury on her person. This P.W.1 has further stated that injury on P.W.8 could be possible by fall on rough surface. P.W.2 and 7 are the post occurrence witnesses. In view of above, the Trial Court appears to have rightly taken the view that its unsafe to rely upon evidence of P.W.3, 4, 5 and 8 as also that there remains no such evidence as regards wrongful restraint, use of obscene words and about outraging the modesty of P.W.3 and 8. Thus it appears that the trial Court has rightly held the prosecution as blame worthy for having not been able to bring home the charges against the respondent and this Court finds no such reason in holding, the contrary. 9. For the aforesaid discussion and reason, the Trial Court's order of acquittal is not liable to be interfered with. Thus, the appeal stands dismissed. Appeal dismissed.