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2014 DIGILAW 683 (ORI)

Gopikrushna Dey v. Ananta Gopal Das

2014-10-20

D.DASH

body2014
JUDGMENT : D. Dash, J. 1. The complainant in the Court below as the Appellant has called in question the order of acquittal passed by the Learned J.M.F.C., Balasore is acquitting Respondent charge under Section 323/379 IPC. Prosecution case is that on 01.06.1987, the Appellant had opened his shop though call of 'Bharat Bandh' had been given. At about 3.15 p.m. while returning from his shop, Respondent detained & abused him raising protest as to why he opened his shop. So, the Appellant protested to it, & then he was given slaps & pushes. It is also alleged that the Respondent took away one fountain pen worth Rs. 17 from his pocket. The matter being reported at the police station, no step was taken. So the Appellant filed the complaint in setting the criminal law into motion. Cognizance of the aforesaid offence being taken filing the Respondent faced the trial for the above offences. 2. The defence has taken plea of complete denial. Prosecution during trial has examined three witnesses including the Appellant who is P.W. 3. None has been examined from the side of the defence. 3. The Trial Court on analysis of evidence, taking note of the facts & Circumstances of the case as those emanate from the evidence let in by the Appellant has held that the case against the Respondent for commission of offence under Section 323/379 IPC has not been established beyond reasonable doubt. Therefore, acquittal having been recorded that is how the present appeal has come up. 4. Learned Counsel for the Appellant submits that the appreciation of evidence of the witnesses examined on behalf of the Appellant has been wholly improper & according to him there surfaces no such justifiable reason to disbelieve the evidence of all these witnesses examined on behalf of Appellant when it is not the law that they having been examined as witnesses on behalf of the complainant, their evidence is to be viewed with suspicion from the very beginning. Next, the submits that the delay in lodging complaint in the present case having been well explained through acceptable evidence, the Trial Court did commit gross error in taking that as a circumstance as telling upon the veracity of the case. So, he contends that it is a fit case for interference with the order of acquittal. Next, the submits that the delay in lodging complaint in the present case having been well explained through acceptable evidence, the Trial Court did commit gross error in taking that as a circumstance as telling upon the veracity of the case. So, he contends that it is a fit case for interference with the order of acquittal. Learned Counsel for the Respondent while submitting in support of the finding of the Trial Court has further contended that the Trial Court has assigned very good reason for ultimately holding the evidence to be insufficient to establish the case against the Respondent for commission of offence under Section 323/379 IPC. Therefore, he & contends that the appeal bears no merit. 5. In view of such rival submission let's go to the evidence on record to come to the conclusion on their re-appraisal as to whether the finding of the Trial Court & the ultimate result rendered in the trial if can sustain. But before that its felt apposite to take note of the settled position of law with regard to the power of this Court in interfering with the order of acquittal. It has been held in case of Basappa Vrs. State of Karnataka; (2014) 57 OCR 1044 that the High Court in an appeal under Section 378 Cr.P.C. is entitled to reappraise the evidence & put the conclusions drawn by the Trial Court to test but the same is permissible only if the Judgment of the Trial Court is perverse. Relying the case of Gamini Bala Koteswara Rao & others Vrs. State of Andhra Pradesh; (2009) 10 SCC 639, it has been held that the word "perverse" in terms as understood in law has been defined to mean 'against weight of evidence'. In K. Prakashan Vrs. P.K. Survenderan; (2008) 1 SCC 258 , it has also been held that the Appellate Court should not reverse the acquittal merely because another view is possible on evidence. It has been clarified that if two views are reasonably possible on the very same evidence, it cannot be said that prosecution has proved the case beyond reasonable doubt (Ref.: - T. Subramaniam Vrs. State of Tamil Nadu; (2006) 1 SCC 401 ). It has been clarified that if two views are reasonably possible on the very same evidence, it cannot be said that prosecution has proved the case beyond reasonable doubt (Ref.: - T. Subramaniam Vrs. State of Tamil Nadu; (2006) 1 SCC 401 ). Further, the interference by Appellate Court against an order of acquittal is held to be justified only if the view taken by the Trial Court is one which no reasonable person would in the given circumstances, take (Ref.: - Bhima Singh Vrs. State of Haryana; (2002) 10 SCC 461). 6. Evidence of P.W. 1 is to the effect that the Respondent abused P.W. 3 & pushed him & lastly to have taken his fountain pen. On being specifically asked, he has stated that the Respondent had given a push on the chest of the P.W. 3 but the evidence of P.W. 3 is that he was assaulted on his cheek which is not the version P.W. 1. When P.W. 3 has stated that there was swelling on his cheek remaining visible for two days, he has not chosen to have been medically examined which would have provided due corroboration. It is also seen from the evidence of P.W. 1 that he has categorically denied to have not seen the Respondent removing the fountain pen & by the time he reached near the place, the occurrence was over. It is his evidence that he came to know about the taking the fountain pen only from P.W. 3. When such is the state of affair in the evidence of P.W. 1 & 3, the explanation given for the purpose of delay in lodging of F.I.R. also appears to be un-satisfactory. The incident having taken place on 01.06.1987, the complainant has been filed on 17.07.1987. P.W. 3 has stated that as police refused to take any step & advised him to take shelter in the Court of law, he had to file the complaint. If that is so then it is not understood that what further prevented P.W. 3 in lodging the complaint earlier & instead do so after for one & half month such gross delay casts a doubt in the mind as regards the veracity of the case of the Appellant. 7. If that is so then it is not understood that what further prevented P.W. 3 in lodging the complaint earlier & instead do so after for one & half month such gross delay casts a doubt in the mind as regards the veracity of the case of the Appellant. 7. In that view of the aforesaid discussion of evidence, this Court do not find any reason to take a view contrary to the one taken by the Trial Court in ultimately acquitting the Respondent of the said charges. In the result the appeal stands dismissed.