Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 756 (ORI)

State of Orissa v. Khageswar Konhar

2014-11-12

D.DASH

body2014
JUDGMENT : D. Dash, J. 1. The State in this appeal has called in question the order of acquittal passed by the learned Special Sessions Judge, Kandhamal-Boudh, Phulbani in S.T. No. 93 of 1996 acquitting the respondent of the charge under section 20(a)(i) of the ND & PS Act 1985. The case of the prosecution in short is that on 04.09.1996 morning, the Sub Inspector of Excise (P.W.4) along with other excise staff and Tahasildar had gone to village Doni and in course of patrolling, they found ganja plants to have been grown in the backyard of the respondent. So, they made an entry to the backyard with a person of the locality and found five numbers of ganja plants to have been grown there. According to the case of the prosecution those plants were grown by the present respondent in his backyard. The plants were then uprooted and seized followed preparation of seizure list and service of the copy of the same upon the respondent. The ganja plants being uprooted were packed and sealed. The respondent then being arrested was forwarded to the court where the seized packets were produced. On the prayer of the prosecution, sample from the seized plants were collected by the learned S.D.J.M. and sent for chemical examination. The report came in the affirmative. That is how the respondent faced the trial. In the trial the respondent took the plea of complete denial as having no connection with those ganja plants said to have been seized. 2. Prosecution in order to bring home the charge against the respondent has examined four witnesses. P.W.4 the Excise Sub-Inspector, who had gone with other being the leader of the squad. The constable of Excise a member of the squad has been examined as P.W.2. The local Tahasildar who is said to have accompanied P.W.4 and others has been examined as P.W.3 and P.W.2 is a local witness. The defence has examined none. From the side of the prosecution the seizure list has been admitted in evidence and marked as Ext. 1. Ext. 2 is the statement of the respondent said to have been recorded by the P.W.3. The forwarding has been marked as Ext. 4, the report to that effect is marked as Ext. 5. Record of right of the land, in question, where the ganja plants are said to have been grown has been marked as Ext. 1. Ext. 2 is the statement of the respondent said to have been recorded by the P.W.3. The forwarding has been marked as Ext. 4, the report to that effect is marked as Ext. 5. Record of right of the land, in question, where the ganja plants are said to have been grown has been marked as Ext. 6. 3. The trial court on analysis of evidence has come to a finding that the prosecution is vitiated for noncompliance of the provision of section 42(1) & (2) of the Act. Next, finding has been rendered that the prosecution has failed to establish by Clear, cogent and acceptable evidence that it is the respondent who had grown those ganja plants in his backward. In the absence of any positive evidence with regard to cultivation by the respondent the trial court has refused to accept the evidence of the official witnesses to fasten the guilt upon the respondent. With the above view, the trial court having acquitted the respondent, the appeal has come to be filed. 4. Learned counsel for the State submits that the evidence in the case coming from the lips of official witnesses who have no axe to grind against the respondent and who have no apparent reason to falsely arraigned the respondent when it is not ever said that they knew each other, their evidence with regard to the cultivation of the ganja plants by the respondent as also the seizure on being detected ought not to have been discarded. He further submits that in this case the factual aspect do not require the compliance of provision of section 42(1) and (2) of the Act which the trial court has erred in law. According to him, the evidence being overwhelming on record, as regards the cultivation of the ganja plants by the respondent, the trial court did commit gross error both in law and fact by recording the order of acquittal. 5. Learned counsel for the respondent while supporting the finding of the trial court contended that the evidence of the official witnesses with regard to the main aspect of the case that it is the respondent which had cultivated those ganja plants has not been established beyond reasonable doubt. According to him, there is (sic) independent corroboration to the evidence of the official witnesses. According to him, there is (sic) independent corroboration to the evidence of the official witnesses. He further submits that the writing said to have been given by the respondent (Ext. 2) upon which much stress has been laid by the learned counsel for the State is not to be given any weightage for the purpose of arriving at a conclusion with regard to the commission of offence by the respondent. He of course does not dispute with regard to the position that compliance of provision of section 42(1) and (2) of the Act may not come in to play in the facts and circumstances of the case. In view of all these, he urged that the appeal bears no merit and the order of acquittal does not call for interference. 6. Keeping the rival submission in mind, this Court is now called upon to examine the evidence of the prosecution and evaluate the same in judging the defensibility of the finding of the court below on which the order of acquittal is found. But before taking up the said exercise, it is felt apposite to take note of the settled position of law with regard to the powers of this Court to interfere with the order of acquittal in seisin of an appeal at the behest of the State. 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 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). 7. Keeping the above in mind, let's now go to the evidence of the prosecution witness and first of all examine the evidence of the P.W.4, who is the leader of the squad. He has stated that while patrolling, he found ganja plants to be there in the backyard of the respondent. So, they entered there and next he says that the plants to have been carefully watered, manured and fenced by thorny bamboos. He further states to have uprooted those, then seized and packed whereafter other courses were adopted. In his entire deposition, he has not stating about the Tahasildar to have ever recorded any statement of the respondent there at the spot much less to say that the respondent had ever stated personal knowledge about the possession of the land and also the person doing the cultivation made therein. Simply because a piece of land stands recorded in the name of a person, the same does not go to attract the liability of that person for the cultivation of any objectionable plants over the same, unless of course it is shown either that he is the cultivator or that he has got the cultivation done under direction with the command key remaining with him. The other official witness is P.W.1: He is not stating anything as regards the cultivation of the said ganja plants. It is his evidence that they arrived there at 7.50 A.M. 8. The local witness has not supported the prosecution case with regard to such cultivation. The Tahasildar examined as P.W.3 though has stated that they found the ganja plants to have grown in the backyard and those were having good growth being properly watered and manured, he is not breathing a word as to who was involved in such watering and manuring or for taking care of those plants. The Tahasildar examined as P.W.3 though has stated that they found the ganja plants to have grown in the backyard and those were having good growth being properly watered and manured, he is not breathing a word as to who was involved in such watering and manuring or for taking care of those plants. He for the first time is stating to have recorded the statement of the respondent which has been marked as Ext. 2. When a look to Ext. 2 is given, it is seen that the father's name of the respondent is not correctly written there. The respondent appears to be a illiterate person and there being no evidence as regards the fact that he did not know writing Odia, the statement instead of being written by the respondent has been written by P.W.3. Furthermore, cross mark (x) having been put, the signature of respondent stands. In the case (another doubt arises that) when P.W.4 states that he had called P.W.3, P.W.3 states to have got the requisition for the purpose. Interestingly, that requisition has not seen the light of the day during trial. Next, when it is stated by P.W.1 that they had gone to the place at 7.50 A.M., P.W.2 has said that it was around 10 A.M. The evidence of P.W.3 is to the effect that they arrived there at 4 P.M. whereas in the Ext. 2 it is indicated that around 9 A.M. the excise official uprooted the ganja plants. P.W.4 most interestingly has not stated anything as regards the time of their arrival or seizure: The seizure list, Ext-1 shows that it was prepared at 7.50 A.M. All these give rise to genuine doubt in mind as regards the recording of statement of respondent and also the presence of P.W.3 at the spot when such suspicions are not explained away. Thus, on re-appreciation of evidence with all the above discrepancies and for the reasons and discussions made herein before, this Court independently arrive at a conclusion with regard to failure on 'the part of the prosecution to establish the factum of cultivation of the ganja plants by the respondent in the backyard. Therefore, the ultimate finding rendered by the trial court is not found to be a flawed one. In view of the above, the submissions with regard to other aspects are not felt necessary to be delved into. Therefore, the ultimate finding rendered by the trial court is not found to be a flawed one. In view of the above, the submissions with regard to other aspects are not felt necessary to be delved into. In the result, the appeal stands dismissed.