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2019 DIGILAW 137 (ORI)

Surendranath Bisoi v. Harekrushna Sahu

2019-02-19

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. Being aggrieved by the order dated 18.02.1992 passed by the learned Sub-Divisional Judicial Magistrate, Khurda in I.C.C. Case No. 21 of 1989 (T.R. No. 412 of 1989) acquitting the respondent (accused persons) of the offence under sections 448/325/427/34 IPC, the complainant as the appellant has filed the appeal. 2. The case of the complainant (appellant) is that on 3.2.89 around 1 P.M. the respondent (accused persons) went to his house. It is stated that accused Harekrushna, then serving as the ASI attached to Nirakarpur Police Out-Post under Jankia Police Station asked Muli Bisoi (PW-3) who happens to be the father of the complainant (PW-1) as regards the whereabouts of his son namely, Upendra Bisoi, the brother of complainant. It is further stated that said Upendra was wanted in connection with a case which was pending investigation. It is alleged that when PW-3 denied to have any knowledge about the whereabouts of Upendra, said accused Harekrushna assaulted him by giving fist blows, slaps and kicks and then he being apprehensive of being further assaulted, entered inside the room. It is next alleged that said Harekrushna forced his entry thereto by breaking open the door with the help of the other accused Bhaskar and after severely assaulting PW-3 left the spot. The complainant PW-1 then took PW-3 to the hospital and informed the OIC of Jankia Police Station about the incident. It is stated that as no action was taken at that end, the complaint was filed in court. 3. The accused persons have taken the plea of denial and false implication. 4. The complainant has examined in total seven witnesses including the doctor PW-6 and has proved the documents which include the medical examination reports. 5. The trial court having formulated the points for determination has gone for analysis of evidence let in by the complainant and upon their evaluation has held the complainant to have failed to prove his case for commission of offence under sections 448/325/427/34 against the accused persons. 6. None appears on behalf of the appellant. Learned counsel for the respondents has been heard. The judgment passed by the court below as also the depositions of the complainant's witnesses and the documents admitted in evidence from the side of the complainant have been carefully perused. 7. 6. None appears on behalf of the appellant. Learned counsel for the respondents has been heard. The judgment passed by the court below as also the depositions of the complainant's witnesses and the documents admitted in evidence from the side of the complainant have been carefully perused. 7. It is the settled position of law that in the absence of any manifest illegality, perversity or miscarriage of justice, the order of acquittal passed by the trial court may not be interfered with by the High Court in exercise of appellate jurisdiction. Bindheswari Pr. Singh vs. State of Bihar, (2002) 6 SCC 650 , Rathinam vs. State of Tamil Nadu, (2011) 11 SCC 140 and Sunil Kumar Sambhudayal and Gupta vs. State of Maharashtra, (2010) 13 SCC 657 . It has been recently held in case of Madathil Narayanan vs. State of Kerala, (2018) 14 SCC 513 that if the trial court takes the view that the accused deserves to be acquitted on the basis of evidence on record, the same cannot be reversed unless and until it is found that the same is vitiated on account of gross perversity and erroneous appreciation of evidence on record. 8. The court below has taken note of the fact that in the complaint as also the initial statement, PW-1 (complainant) has narrated all the details of the incident as if he was present at the scene at the time of the occurrence. During evidence that has fallen flat on the ground when he has stated that when he had been to take bath, the incident actually took place in his house and its only on his return, he came to learn about it when his father was found to be lying unconscious. He has admitted that he, his father PW-3 and his brother Upendra are accused in G.R. Case No. 258 of 1988 and the accused of the present case i.e. Harekrushna Sahu was conducting the investigation of the case. He has further admitted that one U.D. case having been registered for the unnatural death of the wife of his brother, Upendra, it was also being enquired into by said accused Harekrushna. This witness has also stated that his brother Upendra's father-in-law has filed a case against him, his brother Upendra and their father alleging to have been assaulted by them when he had demanded his daughter's ornaments. This witness has also stated that his brother Upendra's father-in-law has filed a case against him, his brother Upendra and their father alleging to have been assaulted by them when he had demanded his daughter's ornaments. Although PW-1 has denied the fact that on the allegation of commission of rape upon the daughter of accused Bhaskar his brother, Upendra is facing G.R. Case No. 67 of 1989, the relevant record having been proved, it has been established that actually a case under section 376/511 IPC has been registered against the brother of the complainant. With the above relationship between the complainant and his family members on one hand and the accused persons on the other, the trial court as it appears has rightly gone to analyze the evidence on record in a stricter manner with utmost care and caution. The court below has taken into account the fact that the version of PWs. 2 and 3 as regards the incident right from the beginning till end substantially differ in material particulars. The evidence of PW-2, the wife of PW-1 when gone through, not only it is seen that she has failed to say the names of the accused persons but also that she has not identified any accused and has further gone to express her inability to recall even the year of the incident. The documents proved from the side of the complainant relating to the so-called medical examination of PW-3 having been taken note of, upon examination of evidence of the persons attached to the hospital including the doctors, the court below has raised suspicion to hold that those relate to PW-3. The trial court has also noted the exaggeration in the evidence of the witnesses examined from the side of the complainant. In view of all the above, the trial court has held the case of the prosecution as to have not been established so as to fasten guilt upon the accused persons. 9. In view of the discussion of evidence as made above, I do not find that the ultimate finding arrived at by the trial court is vitiated on account of perversity and erroneous appreciation of evidence on record warranting interference within the scope and ambit of this appeal. 10. In the result, the appeal stands dismissed.