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2014 DIGILAW 684 (ORI)

Dhobei Sahu v. Bibatsa @ Daktar Pradhan

2014-10-20

D.DASH

body2014
JUDGMENT The complainant in the Court below as the appellant has challenged the order of acquittal dated 16.10.1990 passed by learned S.D.J.M., Talcher in ICC No.97 of 1989 acquitting the respondents of the charges under Section 448/504/506/34 IPC. 2.Prosecution case as it reveals from the complaint petition filed by the appellant is that the respondents are the sons of his brother-in-law (wife’s brother) namely Kunja Pradhan and Khageswar Pradhan. It is stated that the wife of the complainant and her brothers were having land at village Danara and it had been acquired for the purpose of Bharatpur Colliery Project. In view of the fact that the said land stood jointly recorded in the names of the wife of the complainant and her two brothers, all of them were entitled to get the compensation for the acquisition of the said land. So on 19.12.1989, they were asked to remain present for the purpose of receiving compensation. The wife of the appellant could not remain present on that day for which the compensation amount could not be disbursed. It is alleged that for that reason the respondents entered into the house of the appellant asked his wife as regards the reason for not attending the Land Acquisition Officer’s Office and when appellant’s wife explained as to why she could not go to receive the compensation amount, it is alleged that the respondents threatened her saying that they would cut the appellant into the pieces. Cognizance for offence under Section 448/504/506/34 IPC being taken, the respondents ultimately faced their trial for the said offences. 3.The case of the respondent No.2 is that he was absent at the place during the relevant time of alleged occurrence. It is also stated that the appellant had taken a loan of Rs.18,500/- from the respondents for the marriage of his eldest son and as it was not paid despite repeated demand, the case is said to have been falsely foisted. 4.The trial Court upon analysis of evidence of five witnesses examined by the appellant to establish the case against the respondents and the defence evidence has finally found those to be unsafe, for being relied upon to hold the respondents guilty for any of the offences. 5.Learned counsel for the appellant submits that the appreciation of evidence as done by the trial Court has not been proper. 5.Learned counsel for the appellant submits that the appreciation of evidence as done by the trial Court has not been proper. According to him, there is overwhelming evidence on record to show that it is the respondents who had committed of offence under Section 448 of IPC and also the offence under Section 504/506 of IPC. Therefore, he submits that it is a fit case to interfere with the order of acquittal. Learned counsel for the respondents contends that the finding of the trial Court is based on proper appreciation of the evidence and upon due consideration of the facts and circumstances of the case. 7.In view of such rival submission, this Court is required to go through the evidence on record to judge the defensibility of the finding of the trial Court with regard to the failure on the part of the appellant to establish the case and if the same stands for justification for being interfered with. But before that it is felt to apposite to take note of the settle position of law with regard to power of this Court to interfere with the order of acquittal. It has been held in case of Basappa v. 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 and 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 and others v. 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 v. 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 v. 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 v. 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 v. State of Haryana; (2002) 10 SCC 461). 8.First of all as regards the plea of alibi taken by the respondent No.2, it is seen that the defence has examined D.W.5, the personal officer of Nondiva Colliery. He has stated that the said respondent was serving as a Clerk in the Colliery and on 19.12.1989, he was on duty, Ext-A the attendance register has been proved through the witness. It is being criticized on the ground that as duty hour is not indicated there and that the trial Court on the basis of said evidence ought not to have accepted the plea of alibi as taken by the respondent No.2. The trial Court as it appears having assigned good reason has accepted the evidence of P.W.5 and has held the respondent No.2 to have been able to prove his absence at the relevant time. Perusal of the evidence on record, do not lead this Court to gather any justifiable reason to interfere with the said finding, when even the appellant has not suggested to D.W.5 that the respondent No.2 was not present in the office on the relevant date and time. 9.Next consideration comes with regard evidence on the incident. It is pertinent to state here that the appellant has not examined any independent witness though the fact remains that the parties were in inimical terms. The evidence of the prosecution witnesses is found to be not there on the score that the respondents forcibly entered into the house of the complainant. The appellant has surprisingly taken no step to call any neighbour as a witness. The evidence of prosecution witnesses on a careful reading goes to show that there is lack of consistency in those with regard to the happening of the incident and the role of the respondents played therein. The appellant has surprisingly taken no step to call any neighbour as a witness. The evidence of prosecution witnesses on a careful reading goes to show that there is lack of consistency in those with regard to the happening of the incident and the role of the respondents played therein. It is also stated that the respondents asked the wife of the complainant to accompany them to go to receive the compensation money and when she refused, he was abused and threatened to be killed. It is however seen that the incident took place immediately on arrival of the respondents at the place which run to counter the above evidence. In such the state of affair, the trial Court having found the respondents not guilty of the above offences, the same in my considered view cannot be said to be the outcome of perverse appreciation of evidence on record. 10.Resultantly, the appeal stands dismissed. Appeal dismissed.