Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 550 (ORI)

STATE OF ORISSA v. RAMA CHANDRA DAS

2014-09-01

D.DASH

body2014
JUDGMENT : D. Dash, J. - The State in this appeal has called in question the order of acquittal passed by the Learned Sessions Judge, Cuttack in Criminal Appeal No. 82 of 1994 setting aside the conviction recorded by the Learned Assistant Sessions Judge, Jagatsinghpur against the Respondents of the charge under Section 307 I.P.C. & the order of imposition of sentence of rigorous imprisonment for a period of six years against each. 2. Facts necessary for disposal of the above appeal run as under: On 01.10.1991 around 10.00 am Dhadi Das, P.W. 8 was returning home from Jagatsinghpur market & on the way near Haripada accused Purushottam & Murali detained him & accused Dhobei assaulted Dhadi by means of lathi. The Respondents then by means of bhujali caused injuries on his head resulting his fall being unconscious. It is further stated that all the accused persons took away a sum of Rs. 6,000. Witnesses coming on the road saw the assailants running away & Dhadi lying with such injuries. Injured Dhadi was then taken to nearby hospital & then ultimately to S.C.B. Medical College & Hospital, Cuttack. Information to the above effect being lodged at the Jagatsinghpur Police Station, necessary case was registered & investigation commenced. On completion of the same charge-sheet was submitted against five accused persons & accordingly they faced their trial in the Court of Learned Assistant Sessions Judge, Jagatsinghpur. In the trial all except the Respondents were acquitted. These Respondents were convicted for commission of offence under Section 307 IPC & sentenced as aforesaid. Being aggrieved by the said order of conviction & sentence the Respondent filed Criminal Appeal No. 82 of 1994 in the Court of Learned Sessions Judge, Cuttack & the conviction & sentence having been set aside, the State have filed this appeal. 3. Learned Counsel for the State submits that the lower Appellate Court has unnecessarily given importance to the enmical relationship between P.W. 8 & the Respondents. According to him, simply because P.W. 8 is a trustee of the Math & some of the accused persons were the bhag tenants the enmical relationship is not to infer when it is not a case that P.W. 8 was carrying any personal interest for being served by falsely implicating the Respondents. According to him, simply because P.W. 8 is a trustee of the Math & some of the accused persons were the bhag tenants the enmical relationship is not to infer when it is not a case that P.W. 8 was carrying any personal interest for being served by falsely implicating the Respondents. It is his next submission that evidence of P.W. 8 as regards assault on him has been amply corroborated by the evidence of medical officers P.Ws.1 & 9 with the existence of incised injuries further confirming those to have been caused by sharp cutting weapons. According to him there was no reason for the lower Appellate Court to discard the evidence of P.W. 8. Therefore, it is his contention that even uncorroborated testimony of P.W. 8 can be relied upon in the present case for the purpose of holding the Respondents guilty, nonetheless but at the same time the same has also been well corroborated. It is his further submission that the Lower Appellate Court has given much emphasis on delayed examination of P.W. 5. According to him, the delay simpliciter is no ground to doubt or discard his testimony of witnesses unless it is shown to have been so done to serve any mischievous end is further shown to have not been done at the earliest despite of the opportunity in view of all these, he urges for restoration of the order of conviction & sentence passed by the Trial Court by upsetting the order of acquittal passed by the lower Appellate Court. Learned Counsel for the Respondents on the other hand supports the order of the lower Appellate Court. According him, the lower Appellate Court has rightly gone to appreciate the evidence keeping in view the delayed examination of the witnesses & also the enmity part, also the interestedness of the witnesses in achieving the success for the prosecution has been rightly kept in mind. He contends that the appreciation of evidence made by the lower Appellate Court is just & proper & the same has been done in the backdrop of certain admitted facts which were not kept in mind by the Trial Court. Therefore, he urges that the appeal bears no merit. 4. He contends that the appreciation of evidence made by the lower Appellate Court is just & proper & the same has been done in the backdrop of certain admitted facts which were not kept in mind by the Trial Court. Therefore, he urges that the appeal bears no merit. 4. 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 & to act on its own thereof, it will not do so lightly & will be slow to reverse an acquittal, except for strong & 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 & the Trial Court has taken a reasonable view & acquitted the accused, the High Court in appeal can not interfere with such finding but when there is perverse finding based on erroneous appreciation of evidence & serious miscarriage of justice has been caused, the High Court has ample power to reverse that finding. 5. In the anvil of aforesaid principle, now the rival submission me required to be examined with reference to evidence in order to ascertain the defensibility of the order of acquittal passed by the Trial Court. The factum of enmity between the injured, P.W.8 as the Trustee of the Matha & the Respondents being possession of some property belonging to Matha stands admitted. The I.O., P.W.11 in his evidence has also spoken in that light. The injured, P.W.8 has also stated about litigation running with the Respondents & that they are not giving anything in return towards the cultivation of the land belonging to Matha. The son of P.W.8 who has been examined as P.W.10 has also stated in that vain. Its true that simply because of the enmity the evidence of witnesses are not be discarded. But it certainly puts the Court on guard & obligates upon examination of evidence of the witnesses critically & accordingly appreciates to judge the truthfulness of their version. The lower Appellate Court appears to have rightly taken that in mind & has proceeded to appreciate the evidence. Here from the beginning the Respondents asserted that the case is a concocted one. The lower Appellate Court appears to have rightly taken that in mind & has proceeded to appreciate the evidence. Here from the beginning the Respondents asserted that the case is a concocted one. The FIR has been lodged on 02.10.1991 & out of the accused persons only accused Purusottam has been arrested on 21.12.1991, i.e, after about 80 days of the occurrence. It is not forthcoming in the evidence of P.W.11 or any witnesses as to why such attempt was not made at the earliest in apprehending any of the accused persons when the commission of non-cognisable offence revealed from the FIR narration. This certainly raises eyebrows any blames on the fairness of the investigation casting some doubt over the complicity of the Respondents & others. The evidence of the medical officer, P.W.1 is to the effect that he had not examined P.W.8 on police requisition. However, it is stated by the witnesses that some were identified by the P.W.8 at that time. But who is that person who had identified the P.W.8 before the medical officer is not forthcoming. P.W.11, the I.O. has not gone to the P.H.C. or S.C.B. Medical College & Hospital, Cuttack to even ascertain the said fact. Therefore, a reasonable doubt emerges in the mind as to whether P.W.8 was at all available for the purpose & whether he was examined at the P.H.C. & then treated at SCB Medical College & Hospital. Besides P.W.8 & the eye witness as regards the occurrence as cited by the prosecution is P.W.5. Interestingly P.W.5 has been examined by the I.O., 19 days after the said incident, though P.W.8 has been examined on the very day of lodging of the FIR. The FIR has been lodged by the P.W.10 who is neither a witness to the occurrence nor even a post occurrence witness. The solitary testimony of the injured, P.W.8 is unsafe to be relied upon without any corroborative evidence as regards the occurrence which in the fact & circumstance of the case & on the face of the prior enmity & other features as described above is necessary which in this case is lacking. The prosecution has also not given any acceptable explanation as regards delay in examination of the sale eye witness of P.W.5. The prosecution has also not given any acceptable explanation as regards delay in examination of the sale eye witness of P.W.5. In such state of affairs, when the lower Appellate Court has found the evidence of the P.W.8 as unsafe, to be relied upon, the said view cannot to be said to be unjust or improper & consequent recording of the order of acquittal giving the Respondent the benefit of doubt. 6. Therefore, no justification stands to interfere with the order of acquittal impugned this appeal. 7. Resultantly, the appeal stands dismissed.