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2016 DIGILAW 422 (ORI)

State of Orissa v. Narayan Budula

2016-06-07

D.P.CHOUDHURY, S.K.MISHRA

body2016
JUDGMENT S.K. MISHRA, J. - Heard Mr. S.K. Nayak, learned Addl. Government Advocate, who is representing State of Odisha. None appears for the respondents. However, after hearing learned Addl. Government Advocate and perusing the records, we are of the opinion that it is not necessary to hear learned counsel for the respondents and judgment can be passed outright. 2. The Government Appeal arises out of the judgment of acquittal passed by the learned Addl. Sessions Judge, Jharsuguda on 11.05.1999 in S.T. No. 95/55 of 1997-99 in which both the respondents stood charged for the alleged commission of offence under Sections 302 and 201 read with Section 34 of the I.P.C. and have faced their trial. The case of the prosecution has been dealt with quite detail by the learned Addl. Sessions Judge. So this Court take into consideration the statements of witnesses as described in paragraphs 1, 2 and 3 of the judgment of the learned Addl. Sessions Judge and it need not be reflected in this judgment to avoid repetition. The defence took the plea of simple denial. 3. The prosecution in order to bring home the charges against the respondents, accused persons before the trial Court, has examined ten witnesses. P.W.1 is stated to be an eye-witness to the occurrence, P.W.6 is a doctor, who has conducted postmortem examination on the dead body of the deceased. P.W.9 is the person, who has stated about the handing over of the deceased, who was heavily drunk and unable to walk, to the accused persons on the night of the occurrence. Besides such oral evidence, several documents like F.I.R., Postmortem Report etc. and the evidence of five other prosecution witnesses have been taken into consideration. 4. After analyzing the materials available on record, learned Addl. Sessions Judge has come to the conclusion that there is no iota of evidence on record to establish that the death of the deceased was homicide in nature. Another point that is to be taken into consideration is that the dead body of the deceased was not properly identified because of decomposition and P.W.3 the brother of the deceased has identified the dead body of Gethal @ Robit Ping from his wearing apparels (towel). The third aspect that is to be taken into consideration as submitted by the learned Addl. Government Advocate is that the evidence of P.W.1, which is suffered from many discrepancies and infirmities. The third aspect that is to be taken into consideration as submitted by the learned Addl. Government Advocate is that the evidence of P.W.1, which is suffered from many discrepancies and infirmities. Learned Addl. Sessions Judge was very conscious of the settled position of law that conviction can lie solely basing on the solitary testimony of a single witness, provided that such evidence appears to be cogent and consistent with the case of the prosecution and free from any embellishments. 5. Learned Addl. Government Advocate drew attention of the Court to the evidence of P.W.1 and submits that his evidence can be believed on three grounds: first ground is that the learned Addl. Sessions Judge has held that the occurrence took place three years back on a Sunday night on the thrashing floor of accused Narayan. That was a moonlit night. P.W.1 states that the deceased was then working as a field servant of accused Narayan, he slept in the house of the accused Narayan and there was a wall around the Courtyard up to chest height and there existed one wall around the ‘Khala’ which stood at a distance of 4’ to 5’ away from the ‘Dhenkisal’ and the walls could not have hindered his views. It is further stated that the occurrence took place in a moonlit night and the place where the occurrence took place is about 30’ to 40’ away from him. But, it is held that in such situation it is not proper to accept the evidence of the sole eye witness P.W.1 Second ground is that, it is observed by the learned Addl. Sessions Judge that the sole eye witness examined by the prosecution i.e. P.W.1 has never disclosed the matter before anybody after the occurrence and only he has disclosed the same to the Police, when the Police came to his village and after he is asked by the Police. So, keeping in view all these aspects and cumulative effect learned Addl. Sessions Judge has come to the conclusion that the prosecution has failed to establish its case beyond all reasonable doubt. 6. Learned Addl. Government Advocate in course of hearing has stated that only because of non-acceptance of evidence of an eye-witness, the statements of other witnesses cannot be thrown away. Sessions Judge has come to the conclusion that the prosecution has failed to establish its case beyond all reasonable doubt. 6. Learned Addl. Government Advocate in course of hearing has stated that only because of non-acceptance of evidence of an eye-witness, the statements of other witnesses cannot be thrown away. Secondly, though it is a moonlit night an eye-witness could have recognized the assailants of the deceased as the accused persons were known to him, the deceased being his uncle and the accused being his employer. However, such an argument cannot be entertained at this stage as there would be re-appreciation of evidence as if sitting in an appeal against the order of conviction. The Supreme Court in an off-quoted case of Ghurey Lal v. State of Uttar Pradesh, 2009 (1) SCC (Crl.) 60 after taking into consideration all its previous decisions on the point has summarized the principles that govern appeals against acquittal. They are as follows: “(1) The Appellate Court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Code” for brevity). Its power of reviewing evidence is wide and the Appellate Court can re-appreciate the entire evidence on record. It can review the Trial Courts conclusion with respect to both facts and law. (2) The accused is presumed to be innocent until proven quality and the accused possessed this presumption when he was before the Trial Court. The Trial Court’s acquittal bolsters the presumption that he is innocent. (3) Due or proper weight and consideration must be given to the Trial Court’s decision. This is especially true when a witnesses’ credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the Trial Court was wrong” The Supreme Court has further held that in view of the above, the High Court and other Appellate Courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the order of acquittal passed by the trial Court. (1) The Appellate Court may only overrule or otherwise disturb the Trial Court’s acquittal if it has “very substantial and compelling reasons” for doing so. (1) The Appellate Court may only overrule or otherwise disturb the Trial Court’s acquittal if it has “very substantial and compelling reasons” for doing so. A number of instances arise in which the Appellate Court would have “very substantial and compelling reasons” to discard the Trial Court’s decision. “Very substantial and compelling reasons” exist when: (i) the Trial Court’s conclusion with regard to the facts is palpably wrong; (ii) the Trial Court’s decision was based on an erroneous view of law; (iii) the Trial Court’s judgment is likely to result in “grave miscarriage of justice” (iv) the entire approach of the Trial Court in dealing with the evidence was patently illegal. (v) the Trial Court’s judgment was manifestly unjust and unreasonable; (vi) the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like ;dying declarations/report of the ballistic expert etc. (This list is intended to be illustrative, not exhaustive). (2) The Appellate Court must always give proper weight and consideration to the findings of the Trial Court. (3) If two reasonable views can be reached one leads to acquittal and the other to conviction the High Court/Appellate Court must rule in favour of the accused. On when the aforesaid conditions are satisfied, the Appellate Court should interfere with the findings recorded by the Trial Court acquitting an accused. So, it is apposite to consider the evidence in the case in the light of the observations made by the Hon’ble Supreme Court in Ghurey Lal’s case. 7. So while appreciating the evidence in this case, in the light of the principles settled by the Hon’ble Supreme Court in the aforesaid case, this Court is of the opinion that there is no very substantial and compelling reason to disturb the findings of acquittal and reversing it to a judgment of conviction. In view of the aforesaid observation, this Court is of the opinion that the Government Appeal should be dismissed. Hence, the Government Appeal is dismissed. The judgment be communicated to the lower Court immediately. The bail bond furnished by the respondents at the time of their release on bail be cancelled and the bailers are discharged from their liabilities. Appeal dismissed.