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2014 DIGILAW 711 (ORI)

State of Orissa v. Sankara Patra

2014-10-30

D.DASH

body2014
JUDGMENT : D. Dash, J. 1. This appeal by the State is directed against the order of acquittal passed by the Learned Assistant Sessions Judge, Khurda in S.T. Case No. 46/326 of 1990 acquitting both the Respondents of the charge under Sections 307/34 IPC; Respondent No. 1 of the charge under Section 341 of IPC & Respondent No. 2 also for the charge under Section326 of IPC. It is pertinent to state here that Respondent No. 1 who is the husband of Respondent No. 2 having in the meantime expired, the appeal stood abetted against him & necessary order to that effect has also been passed on 11.12.2003. Therefore, Respondent No. 1 is hereinafter referred to as accused Sankara where as Respondent No. 2 as simply the Respondent. 2. The prosecution case is that on 14.07.1989 at about 10.00 A.M., Sikar Patra was picking up "Saru Pua" & "Sam" plaints from his bari by ploughing there. At that time, the accused Sankara who is the elder brother of Sikar (the injured) & the present Respondent arrived there. It is alleged that accused Sankara rebuked Sikar using vulgar words which was protested by Sikar. It is next alleged that at this accused Sankara got annoyed & suddenly caught hold the neck of Sikar, when Respondent gave cut blows on the neck of Sikar by means of Katari & also on his head. It is further stated that Respondent dealt further blows by means of the katari on the right hand, right shoulder & neck of Sikar intending to kill him. The persons present there interfered & saved Sikar. The wife of Sikar namely Sashimani hearing hulla arrived there. With the help of those persons present, Sikar was taken to the Police Station, when the A.S.I. of Police present there instructed them to immediately take Sikar to go to the hospital, in view of his serious health condition. The doctor present in the hospital when advised to remove Sikar to S.C.B. Medical College & Hospital at Cuttack, the same was carried out. Sikar was finally admitted in S.C.B. Medical College & Hospital at Cuttack. As his condition was very serious his statement was recorded on 21.07.1989. The doctor present in the hospital when advised to remove Sikar to S.C.B. Medical College & Hospital at Cuttack, the same was carried out. Sikar was finally admitted in S.C.B. Medical College & Hospital at Cuttack. As his condition was very serious his statement was recorded on 21.07.1989. Sashimani the wife of Sikar, the injured lodged the complaint in the Court of S.D.J.M., Khurda which being forwarded to the police under Section 156(3) Cr.P.C., necessary case was registered & finally charge sheet being submitted, the present Respondent & her husband, accused Sankar faced the trial. 3. The case of defence is that of denial. It is also stated by the defence that when accused Sankara was putting straw over the shed on his bari & the Respondent was helping him by handing over the straw bundles, injured Sikar arrived there with katari; dealt pushes by means of the katari handle to the abdomen of Respondent, made her nacked & then assaulted her giving fists, slaps & kicks & abused using vulgar words. So accused Sankar protested & then Sikar is said to have given a cut blow on the right palm causing bleeding injury. Where after there was tussle between Sikar & accused Sankara, & as a case was registered against Sikar; by foisting a story, the present complaint has been lodged. It is also stated that they had long standing enmity. 4. The prosecution in order to bring home the charges against the Respondents has examined fourteen witnesses. Wife of Sikar has been examined as P.W.8, P.Ws. 3, 4, 5 & 6 are the eye witnesses to the said occurrence. Sikar, the injured has been examined as P.W.7. The doctors are P.W.10 & 12. Besides the above, the Investigating Officer has also been examined as P.W.13. Though no witness has been examined by the defence, from their side the bed head ticket of the accused Sankara, his injury report & the FIR as well as the charge sheet of G.R. Case No. 499 of 1989 have been proved. 5. At this juncture, it may be stated that the Trial Court simultaneously tried, the present case with G.R. Case No. 499 of 1989, those being case & counter case arising out of the same occurrence & has disposed of both on the same day. 6. On analysis of evidence the Trial Court has found the evidence of eye witnesses P.Ws. At this juncture, it may be stated that the Trial Court simultaneously tried, the present case with G.R. Case No. 499 of 1989, those being case & counter case arising out of the same occurrence & has disposed of both on the same day. 6. On analysis of evidence the Trial Court has found the evidence of eye witnesses P.Ws. 3, 4, 5 & 6 as highly contradictory shaking the sub-stratum of the prosecution case. Next, the prosecution has been found to be guilty of suppression of material fact & to have not come forward placing the true genesis & origin of the occurrence. The Trial Court has also found the case of defence to be more probably, while going to record the finding that even the spot where the occurrence has taken place as per the prosecution case is varying. On analysis of evidence emanating from the lips of the prosecution witnesses, a finding has been recorded that there has been failure on the part of the prosecution to establish its case against the Respondent & her husband accused Sankar. With these findings, order of acquittal having been passed, this appeal has come to be filed to upset the same. 7. Learned Standing Counsel submits that the evidence of the prosecution witnesses, do not contain such contradiction on material aspects of the case & the Trial Court has picked up some minor contradictions which are very natural to occur in their evidence & those ought not to have been seriously viewed to disbelieve the prosecution case. According to him, the prosecution has been explained the injury sustained by accused Sankara. In this light, he has referred to depositions of P.Ws. 3 & 7 who have stated in detail as to how the injury on the right palm of accused Sankara came into being. He submits that the overwhelming evidence let in by the prosecution establishing the role played by the Respondent & her husband have been discarded by the Trial Court without any such cogent reason & legal justification. Therefore, he urges with vehemence that it is a fit case for interference with the order of acquittal, which is based upon perverse appreciation of the evidence. Learned Counsel for the Respondent supports the finding of the Trial Court. Therefore, he urges with vehemence that it is a fit case for interference with the order of acquittal, which is based upon perverse appreciation of the evidence. Learned Counsel for the Respondent supports the finding of the Trial Court. According to him, the appreciation of evidence has been just & proper in view of the long standing enmity between the parties & when there surfaces the suppression as regards to the genesis & origin of the occurrence which further finds support from the factum of non offering of acceptable explanation regarding the injuries on the person of accused Sankara, the Trial Court's finding cannot be found fault with. According to him, the explanations which is said to have been given by P.Ws. 3 & 7 are rather false & just to side track the actual happening of the incident which has been correctly noted by Trial Court & viewed adversely to doubt the prosecution case as projected. Therefore, he contends that the appeal bears no merit. 8. On such rival submission, this Court is now called upon to take up the exercise of examination of evidence adduced from the side of prosecution to just the defensibility of the finding of the Trial Court against the prosecution that it has failed to establish the charges against the Respondent. But before that it is felt apposite to have a look at the settled possession of law with regard to scope of this appeal & power of this Court to interfere with an order of acquittal in seisin of an appeal against the Appellant. 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 & 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 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. 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 ). 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). 9. It is seen that the evidence of P.Ws. 3, 4 & 6 are highly contradictory in nature in comparison to the evidence of P.W.7. When P.W.3 has stated that the went & saw the occurrence after bearing noise from the Bari of Sikar attached to his old house, when he was going to work in a field; P.W.4 has stated to have seen the occurrence, when he was grazing the buffalo just at that place. Next P.W.6 said to have gone to the old Bari of the house of Sikar from the front side of a carpenter's house hearing noise of injured Sikar & accused Sankara. P.W.5 has stated that he saw the incident when he was cultivating in the Bari of Sikar. They have stated that accused Sankara was holding the neck of Sikar by his hand, when his wife dealt three katari blows on the head of Sikar & when Sikar put his hand on his head she dealt another blow to his right hand near the elbow joint followed by one more blow on the neck of Sikar. On going through the evidence of I.O. P.W.13, it is seen that P.Ws. 3, 4 & 6 have not stated the aforesaid incident before him during their examination. Even, P.W.6 has not told before P.W.13 that accused Sankara had threatened to kill him while holding his neck. On going through the evidence of I.O. P.W.13, it is seen that P.Ws. 3, 4 & 6 have not stated the aforesaid incident before him during their examination. Even, P.W.6 has not told before P.W.13 that accused Sankara had threatened to kill him while holding his neck. All these certainly amount to material omissions & as such major contradictions affecting the credibility of the witnesses & their version at such belated stage is difficult to be accepted holding them to the truthful witnesses more particularly when also admittedly they were examined by the I.O. in course of investigation few days after the occurrence. 10. Though P.W.7 said that P.Ws. 3, 4 & 6 are the only witnesses to the occurrence who have seen the incident of assault & protested, it is again the evidence of I.O. (P.W.13) he did not name the eye witnesses in his statement in course of investigation. Moreover these P.Ws. 3 & 6 are not the witnesses named in the complaint petition. Though P.W.4 has been named in the complaint petition as a witness, P.W.3 is not supporting the presence of P.W.4. He has named another as Jagannath Martha, when P.W.4's is name Jagannath Baliarsingh. The Trial Court has further taken note of some discrepancy in the evidence of the witnesses with regard to the seat of injury as also the non-mention of the same in the complaint petition. When admittedly the wife of Sikar P.W.8 was not present on the spot, this P.W.3 says that she was present & had seen the occurrence which shows his interestedness & over-jealousness which the Trial Court has taken note of. The place of incident is not correctly stated & established by the clear, cogent & acceptable evidence & that the Trial Court on detail analysis of evidence has found out. It is seen that taking a strenuous exercise on going through the evidence of all these witnesses including the injured & upon their analysis a finding has been given by the Trial Court that the prosecution has failed to prove the case against the Appellant. Taking a cumulative view on the evidence, this Court is not in a position either to find out any such perversity or erroneous approach to have been made by the Trial Court in the matter of appreciation of evidence so as to upset the finding. Taking a cumulative view on the evidence, this Court is not in a position either to find out any such perversity or erroneous approach to have been made by the Trial Court in the matter of appreciation of evidence so as to upset the finding. Therefore, the order of acquittal is not liable to be interfered with. In the result, the appeal fails.