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2015 DIGILAW 203 (ORI)

State of Orissa v. Sevanlal Mukherjee

2015-03-25

D.DASH

body2015
JUDGMENT The state has called in question the order of acquittal passed by the learned Chief Judicial Magistrate, Balasore in G.R. Case No. 408 of 1987 acquitting the respondent of the charge under Section 498-A IPC and Section 6(1)(2) of D.P. Act. 2.The prosecution case is that the appellant had married P.W. 3 on 21.07.1986. In the said marriage father of the P.W. 3 had presented gold ornaments and other house hold articles and cash of Rs. 1,00,001/- to the respondent who was then working as Additional Superintendent of Police, Balasore, All these ornaments and jewellery were given to the respondent at the time of marriage were kept in Bank Locker at Sambalpur and the key was retained by the respondent. It is alleged that after having gone for a few days honey moon trip at the cost of the father of P.W. 3, the respondent wanted for going for the training at Hayderabad and then wanted cash of Rs. 30,000/- to be paid by the father of P.W. 3 when he was paid Rs. 10,000/-. It is further stated that during training period P.W. 3 stayed with her-in-laws at Sambalpur and on return of the respondent from training, she again went to Balsasore. It is alleged that she was not allowed to come to Calcutta during Durga Puja, Kali Puja and on other occasions when she wanted to go. The respondent said to have been demanded Rs. 2,00,000/- from the father of P.W. 3 for construction of a building at Bhubaneswar. Thereafter, allegations run that the P.W. 3 was assaulted causing bleeding injuries followed by such kind of assault taking place several times. In view of P.W.3’s reluctance to avoid the demand advanced by the respondent, it is also stated that P.W. 3 was not allowed to communicate with others and finally she was driven out of by the respondent. P.W. 3 finding no other alternative, had returned to Calcutta where she disclosed the incident to her father and thereafter written complaint was lodged with the Director General of Police which being treated as an F.I.R., necessitated registration of the case and commencement of investigation. On completion of investigation when the charge sheet was submitted, the respondent faced the trial for above offences. 3.In the trial the respondent denied the allegation leveled against him as regards the demand and torture. 4. On completion of investigation when the charge sheet was submitted, the respondent faced the trial for above offences. 3.In the trial the respondent denied the allegation leveled against him as regards the demand and torture. 4. From the side of the prosecution eighteen witnesses were examined when the defence examined four. 5. The trial Court on evaluation of the evidence as recorded as finally found the prosecution to have not been able to establish its case beyond reasonable doubt against the respondent and therefore having refused to render the finding with regard to cruelty said to have been meted out against the P.W. 3 on account of non-fulfillment of demand, the respondent has been acquitted. This is how this appeal come to be filed. 6. Learned counsel for the State submits that despite of the fact that the voluminous evidence on record remain to establish the case of the prosecution as regards the demand made by the respondent and the cruelty be meted out by him at P.W. 3, the trial Court on flimsy ground has not believed those. It is her submission that such finding recorded against the prosecution suffers from perversity that the material evidence on record have been side lined. Therefore, she urges that it is a fit case for interference of the order of acquittal. 7. Learned counsel for the respondent on the other hand supports the findings of the trial Court. According to him, upon elaborate discussion of the evidence, on perusal of the letters sent and after thorough analysis of the same, the trial Court has arrived at the right conclusion against the prosecution to have failed to establish the charge. Therefore, he urges that the appeal bears no merit. 8.Before going to take up the exercise to re-appreciate the evidence in the light of the contentions as advanced, it is felt apposite to take note of the settled position of law with regard to the scope and power of this Court for interference 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 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. 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 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-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. Survendran; (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 ). 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). 9.In view of such rival submission, keeping in mind the principle as stated above, the evidence on record are now required to be gone through. It is the case of the prosecution is that the respondent had meted out cruelty for non-fulfilment of demand and in the process finally drove her out of the house. The first allegation remains with the respondent, when the father of P.W. 3 did not pay Rs. 30,000/-. As regards this, there remains no such evidence. P.W.1 has not stated such demand of Rs. 30,000/- by the respondent for the purpose of meeting the expenditure in the training at Hyaderabad. The evidence is not also forthcoming that the respondent had expressed his displeasure when he had not got the amount of Rs. 30,000/- as per his demand. It is the evidence of P.W.4 that he had brought Rs. 30,000/- by the respondent for the purpose of meeting the expenditure in the training at Hyaderabad. The evidence is not also forthcoming that the respondent had expressed his displeasure when he had not got the amount of Rs. 30,000/- as per his demand. It is the evidence of P.W.4 that he had brought Rs. 10,000/- and given the same to the P.W.3 which rather appears to be a voluntary act and there is no evidence that it was on account of the pressure and compulsion from the respondent’s side. This P.W. 3 is stated to have stayed for a period of two months in her in-laws house, no such evidence is forthcoming during her stay that there she was subjected to cruelty in any manner there. As against the allegation that he was not leaving the P.W.3 to her parent’s place as he had received two anonymous letters assassinating the character of the P.W. 3 and for this purpose, it is stated that the parents of the P.W. 3 had gone to the deity to deny the same on oath; such evidence run in canter to the contrary allegations of confinement and torture during that period. As regards the assault on 14.12.1986 as alleged to have been made by the respondent, it is evidence of P.W. 3 that she was immediately taken to hospital in an Ambulance and P.W. 7, the doctor treated her. The evidence of P.W. 3 if considered in its proper prospective rather runs against the allegation of cruelty that during the dressing P.W. 3 wanted the presence of respondent by her side and in fact, the respondent taken her to the hospital. The doctor has stated that no such abnormal conduct on the part of the P.W. 3 was noticed and the relationship between the two was rather found to be very cordial. It is also alleged that the respondent was locking the door of the house outside while leaving P.W. 3 and was taking her during his visit outside Balasore. The trial Court having gone for further analysis of evidence has found that the possibility of such tendency being with the respondent on account of frequent visit of the father-in-law is not ruled out. The trial Court having gone for further analysis of evidence has found that the possibility of such tendency being with the respondent on account of frequent visit of the father-in-law is not ruled out. With respect to each date of incident as alleged in similar fashion, the Court below has discussed the evidence in great detail and finally has not been able to arrive at the conclusion that it is the respondent who was meted out the cruelty upon the P.W. 3. The trial Court has further taken note of the richness of the family of the P.W. 3 into account and thus derived the conclusion as regards the difficulty in proper adjustment between the husband and wife. The evidence on record having been scanned, the trial Court has not accepted the case that the respondent was assaulting P.W.3. In view of the aforesaid discussion, the finding of the Court below with regard to non-establishment of charge of cruelty on account of non-fulfilment of demand inviting culpability for offence under Section 498-A IPC cannot be said to be the outcome of perverse appreciation of evidence and thus is not liable to be interfered with in exercise of the power and within the scope of this appeal. Regarding other evidence for offence under Section 6 (1)(2) of the D.P. Act, the evidence has been churned by the trial Court , the charge has been held to have failed. The same is also found to have been so held by just and proper appreciation of the evidence. For the aforesaid discussion and reason, this Court declines to interfere with the order of acquittal. 10.Resultantly, the appeal stands dismissed. Appeal dismissed.