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2016 DIGILAW 1135 (ORI)

P. Rajeswari v. Padma Charan Sahu

2016-11-22

SATRUGHANA PUJAHARI

body2016
JUDGMENT S. PUJAHARI, J. - This is an appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) preferred by the complainant-appellant challenging the impugned judgment dated 30.06.1990 passed by the learned S.D.J.M., Berhampur in I.C.C. No.66 of 1984 / T.R. No.922 of 1984 acquitting the accused-respondent of the charge under Sections 427 and 448 of the Indian Penal Code (for short “the IPC”). 2. Case of the complainant-appellant, as embodied in the complaint petition is that she was in possession of a dwelling house situated at Urban Bank Road, Berhampur originally recorded in the name of her mother. On 06.05.1984 around 1.20 p.m. when she returned home from market, she found the accused-respondent engaging six labourers uprooting the doors. She being in possession, objected, but the accused-respondent divulged before her to have purchased that house from her brother who put him in possession and he having also succeeded in the Civil Suit vide T.S. No.71 of 1982, threatened her to leave the place. Visibly annoyed and disturbed for such unlawful act of the accused-respondent, despite pendency of Civil Suit, she lodged F.I.R. at Police Station. But, police having refused to receive the report, she approached the Office of the Superintendent of Police, Berhampur repeatedly, but having failed to meet the Superintendent of Police, she sent the F.I.R. by registered post. Despite of that, when no tangible action taken, she filed the complaint before the Court of the S.D.J.M, Berhampur registered as I.C.C. No.66 of 1984 on such cause of action. She adduced three witnesses in support of her case, but the Court of the S.D.J.M., Berhampur when held the accused-respondent not guilty under Sections 427 and 448 of IPC and acquitted him under Section 255(1) of Cr.P.C., she filed this appeal against the said order of acquittal raising a large many grounds. 3. The learned counsel for the complainant-appellant submits that since in this case, there was no delay in filing of complaint and substantial evidence adduced in support of her possession and mischief committed by the accused-respondent, the trial Court omitted to consider all such material evidence while acquitting the accused-respondent, the impugned order of acquittal is to be reversed and the accused-respondent is to be held guilty under Sections 427 and 448 of IPC. 4. 4. Assailing such contentions, the learned counsel for the accused-respondent defends the impugned order of acquittal that being in conformity with the evidence brought on record, particularly when the accused-respondent is in possession of the property and having succeeded in Civil suit filed on that issue. 5. Before adverting to the question raised vis-à-vis the material brought on record, it is apposite to highlight the settled position of law with regard to power of this Court to interfere with an order of acquittal. The High Court in an appeal under Section 378 of Cr.P.C. is entitled to re-apprise the evidence and put the conclusion drawn by the trial Court to test, but that jurisdiction is permissible only if the judgment of the trial Court is perverse. In 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”. Similarly, the Apex Court in the case of K. Prakashan vrs. P.K. Survenderan, (2008) 1 SCC 258 , have held that the appellate Court should not reverse the order of acquittal merely because another view is possible on evidence. It has been stated that when two views are reasonably possible on the very same evidence, it cannot be said that prosecution has proved the case beyond reasonable doubt, as held in the case of T. Subramaniam vrs. State of Tamil Nadu, (2006) 1 SCC 401 . That part, the interference by the 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. [See:- (2002) 10 SCC 461 (Bhima Singh vrs. State of Haryana)]. That apart, it is also settled law that in case of minor offence, minor discrepancy and infirmity in the evidence is just and reasonable to discard the entire case. 6. Reverting back to the materials on record, there is material on record to show that to curve out her share, if any, out of that building, the complainant-appellant had initiated a Title suit vide T.S. No.71 of 1982, but she having failed, has approached this Court in F.A. No.318 of 1983 which is still subjudice as submitted. 6. Reverting back to the materials on record, there is material on record to show that to curve out her share, if any, out of that building, the complainant-appellant had initiated a Title suit vide T.S. No.71 of 1982, but she having failed, has approached this Court in F.A. No.318 of 1983 which is still subjudice as submitted. It is an admitted fact that the accused-respondent had purchased that house under a registered sale deed from the brother of the complainant-appellant. He claims to be in possession. The transaction was through a registered sale deed for valid consideration. That building is in a dilapidated state as brought on record. The complainant-appellant being not in possession of the building, she filed the suit for possession and her share. When possession of the complainant- appellant over the building is not established beyond doubt, the acquittal of the accused-respondent from that charge cannot be found fault with. Besides, there are major discrepancies between the evidence adduced before the trial Court and averments incorporated in the complaint petition. The complaint petition revealed that the accused-respondent smashed the doors of that house and ransacked her household articles, but in her evidence in Court she had stated that the accused-respondent had demolished the entire building and removed 2 nos. of almirah, one table, one cot and one trunk from her house. This being a major improvement in her version and there being gross infirmity in her statement, no credence could be attached in a case of this nature. That apart, the witnesses named in the complaint petition had been withheld and instead, she had examined two witnesses whom she had not named in the complaint petition. In cross-examination she is also unable to say who are the ‘others’ named in the complaint petition. All such infirmities in the prosecution case were considered by the learned trial Court in its proper perspective and by a reasoned order the accused-respondent was held not guilty of the charge under Sections 427 and 448 of IPC. The complainant-appellant having failed to substantiate the charge by legal evidence on record, the impugned judgment of acquittal needs no interference. 7. Consequently, the ultimate result recorded by the trial Court in acquitting the accused-respondent of the charge under Sections 427 and 448 of IPC is not found to be illegal or against the weight of evidence. It is also not a perverse one. 7. Consequently, the ultimate result recorded by the trial Court in acquitting the accused-respondent of the charge under Sections 427 and 448 of IPC is not found to be illegal or against the weight of evidence. It is also not a perverse one. Hence, the same is not amenable to interference in this appeal. 8. Hence, this criminal appeal filed challenging the impugned judgment of acquittal stands dismissed. LCR received along with the copy of this judgment be returned forthwith. Appeal dismissed.