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2019 DIGILAW 29 (ORI)

Santosh Kumar Pradhan v. Budhiram Nayak

2019-01-11

A.K.MISHRA

body2019
JUDGMENT Dr.A.K.MISHRA, J. - In this revision u/s. 401 Cr.P.C., the informant has assailed the acquittal of opposite party nos. 1 to 11 of the offences u/ss. 328, 427, 506 of the Indian Penal Code (herein after the ‘I.P.C.) in the judgment dtd. 16.03.2000 passed by the Assistant Sessions Judge, Aska, Ganjam in Sessions Case No. 9 of 1996. 2. The case of the petitioner is that he had taken lease of the Tank known as Panibandha of village Benia for the agricultural year 1994-95 depositing the premium amount of Rs.9,000/-. On 06.11.1994 all the accused persons, being armed with different weapons, attempted to net fish. The informant guarded the Tank. They had threatened him. On 07.11.1994, at 10 P.M. the informant and others heard water breaking sound. They focused torch light and found accused Budhiram Nahak, Gopinath Jena and Girija Kampa were washing their hands in the Tank. They fled away. At the mid night, informant detected the dying of fish, on the next day morning, he informed Fishery Extension Officer and then lodged FIR at 2 P.M. Investigation was taken up and after completion of investigation, charge-sheet was submitted u/s.328, 427, 506 of I.P.C. The case was committed to the court of Sessions. 3. In proof of the case, prosecution examined 7 witnesses including the informant. P.W. 1 is the Scientific Officer while P.Ws. 3, 4 and 5 are projected to be the eye-witnesses of the occurrence. 4. Accused persons took the plea of denial and examined one Jr. Clerk attached to the office of Superintendent of Police, Ganjam as D.W. 1 in support of alibi plea. 5. Learned trial court recorded acquittal on the ground that Section 328 of I.P.C. is not attracted for poisoning fish and the delay in lodging FIR for the incident on 6.11.1994 is not properly explained. On appreciation of evidence, learned trial court also found that is was not possible to identify the culprits focusing torch from a distance of 800 feet. The presence of P.Ws.2,3 and 4 at spot was not believed. Besides the above, learned trial court also held that the cause of death is not proved. Referring the evidence of P.W. 2 and eye witnesses, the trial court found that there was no criminal intimidation. 6. During pendency of this revision opposite party no.8 died for which the case has been abated vide order dtd. 28.3.2017. 7. Besides the above, learned trial court also held that the cause of death is not proved. Referring the evidence of P.W. 2 and eye witnesses, the trial court found that there was no criminal intimidation. 6. During pendency of this revision opposite party no.8 died for which the case has been abated vide order dtd. 28.3.2017. 7. Learned counsel for the petitioner submits that the appreciation of evidence by the learned trial court is erroneous and the ground of delay in lodging FIR cannot be the basis to acquit the accused persons. It is further submitted that the admission of accused Rama Chandra Pradhan under 313 Cr.P.C. has not been taken into consideration. Added to above, it is contended by him that the plea of alibi has not been properly appreciated and for that he relies upon the decision reported in AIR 2001 SC 3031 in the case of Munshi Prasad and others vrs. State of Bihar. 8. Learned counsel for opposite party nos. 1 to 7 and 9 to 12 have supported the judgment on the grounds stated therein. Learned Additional Standing Counsel for the State also supports the impugned judgment stating that the scope of revisional court against the judgment of acquittal is very limited and only because of a contrary view on the appreciation of evidence is possible, the same cannot warrant interference. 9. In the decision reported in 1991 II OLR 488, Kalandi Charan Pani vrs. Ganesh Dalai and others, the Division Bench of this court, while analyzing the decisions of the Hon’ble Apex Court in the matter of revisional power against acquittal, has stated at paragraph 3 as follows : “3. The limitation to the exercise of revisional power while dealing with an application for reversal of the order of acquittal is provided in Sub-section (3) of Section 401 Code of Criminal Procedure, 1973 ( in short ‘the Code’). The limitation is that on reversal of acquittal or discharge, further enquiry or retrial can only be directed. As observed by the Supreme Court in AIR 1973 SC 79): Amar Chand Agarwala v. Shanti Bose and Anr., the jurisdiction of the revisional powers is to be exercised in exceptional cases. The limitation is that on reversal of acquittal or discharge, further enquiry or retrial can only be directed. As observed by the Supreme Court in AIR 1973 SC 79): Amar Chand Agarwala v. Shanti Bose and Anr., the jurisdiction of the revisional powers is to be exercised in exceptional cases. It would be open for the Court to interfere, if it is established that the findings of fact arrived at by the Court are based either on no evidence or on inadmissible evidence, or on a legally inadequate evidence, or when the findings are otherwise unjustified or perverse. It is open to the High Court to direct retrial if there is miscarriage of justice. Some of the following illustrative categories were indicated by the Supreme Court. (1) The trial Court having no jurisdiction has acquitted the accused; (ii) it has wrongly shut out evidence of the prosecution, (iii) the appellate Court has wrongly held the evidence admitted by the trial Court as inadmissible; (iv) the material evidence has been overlooked either by the trial Court or the Court of appeal; or (v) the acquittal is based on a compounding of the offence invalid under the law. The indications were reiterated in AIR 1962 SC 1788 : K. Chinnaswamy Reddy v. State of Andhra Pradesh. It is incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. (See AIR 1973 SC 1274 : Chaganti Kotaish and Ors.v. Gegineni Venkateshwara Rao and Anr., AIR 1973 SC 2145 : Akalu Ahir and Ors. v. Ramdeo Ram; and AIR 1975 SC 380: Satyendra Nath Outta and Anr. v. Ram Narain). The jurisdiction to direct retiral is somewhat similar to those contained in Section 386. In AIR 1951 SC 196 : D. Stephens v. Hosibolla, it was observed that the revisional jurisdiction is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal. It could be exercised only in exceptional cases, where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. It could be exercised only in exceptional cases, where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. In K. Chinnaswamy Reddy’s case (supra) it was observed that a re-trial may be permitted where material evidence has been overlooked either by the trial Court or by the appellate Court. The principle that emerges on conspectus of the consistent view of the apex Court is that the scope for interference is limited and has to be exercised in exceptional circumstances. But the Criminal Justice System does not admit of any “pigeon-holing”. Life and the law do not fall neatly into slots. Categories, classifications and compartments, which statute does not mention, all tend to maker law less flexible, less sensible and less just. As observed by the Supreme Court in Ayodhya Dube and Ors. v. Ram Sumer Singh; AIR 1981 SC 1415 , where accepted cannons have been thrown to wind, the probative value of the first-information report has been ignored, individual testimony of the eye-witnesses has not been discussed, reliable testimony has been overlooked, material evidence has been left out of consideration and overlooked, interference is imperated, where intrinsic and probative value of evidence has not been dealt with in its proper perspective and has either not been considered or has been brushed aside on surmises and conjectures, interference is called for. Where vital and crucial evidence is ignored there should be no hesitation for interference. Xxxxx xxxx xxxx 9.(a) Hon’ble Supreme Court in the decision reported in 2009 (14) SCC 569 in the case of K. Ramachandran vrs. V.N.Rajan & Anr. has also analysed the scope of revision in the following manner :- “Xxx xxx xxx This question has been considered in the celebrated judgment of Akalu Ahir & Ors. vrs. Xxxxx xxxx xxxx 9.(a) Hon’ble Supreme Court in the decision reported in 2009 (14) SCC 569 in the case of K. Ramachandran vrs. V.N.Rajan & Anr. has also analysed the scope of revision in the following manner :- “Xxx xxx xxx This question has been considered in the celebrated judgment of Akalu Ahir & Ors. vrs. Ramdeo Ram (1973) 2 SCC 583 , where, after considering the judgments of D. Stephens v. Nosibolla ( 1951 SCR 284 , Logendranath Jha v. Polailal ( 1951 SCR 676 , K.C. Reddy v. State of Andhra Pradesh (1963) 3 SCR 412 and Mahendra Pratap Singh v. Sarju Singh (1968) 2 SCR 287 , this Court came out with categories of cases which would justify the High Court in interfering with the finding of acquittal in revision; “(i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the appellant-accused; (ii) Where the Trial Court has wrongly shut out evidence which the prosecution wished to produce; (iii) Where the appellate Court has wrongly held the evidence which was admitted by the Trial Court to be inadmissible; (iv) Where the material evidence has been overlooked only (either) by the Trial Court or by the appellate Court, and 17 (v).Where the acquittal is based on the compounding of the offence which is invalid under the law.” 9. (b) Hon’ble Apex Court in the decision reported in (2018) 2 SCC 278 in the case of Issac @ Kishor Vrs. Ronald Cheriyan and Ors. has also circumcised the scope of revision against order of acquittal at the instance of private parties in the following words:- “14. In appeal against acquittal, in exceptional circumstances, the High Court may set aside the order of acquittal even at the instance of private parties, though the State may not have thought it fit for appeal. But it is to be emphasized that this jurisdiction is to be exercised only in exceptional circumstances when there is glaring defect in the conduct of trial which has materially affected the trial or caused prejudice....” 10. In the case at hand, the acquittal has been recorded after scanning of evidence, both oral and documentary. The delay in lodging of F.I.R. is not the sole basis for acquittal. Instead, acquittal was the cumulative effect of many facets of evidence which had created doubt in the mind of learned Trial Judge. In the case at hand, the acquittal has been recorded after scanning of evidence, both oral and documentary. The delay in lodging of F.I.R. is not the sole basis for acquittal. Instead, acquittal was the cumulative effect of many facets of evidence which had created doubt in the mind of learned Trial Judge. Having carefully gone through the materials on record it is found that learned Court has analyzed the evidence and Law in proper perspective and the judgment does not suffer from any infirmity. Further, for the occurrence dtd. 7.11.1994 the acquittal judgment was passed on 16.3.2000. Any interference in the revision after eighteen years, when no manifest error is available, would jeopardize the right to speedy trial. In view of the above discussions, the instant revision petition is dismissed being devoid of merit. Petition dismissed.