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2019 DIGILAW 455 (ORI)

State of Orissa v. Jota Munda

2019-07-16

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. This is an appeal against the judgment dated 2.12.1989 passed by the learned Additional C.J.M.-cum-J.M.F.C., Rourkela in 2(C)CC Case No. 30 of 1989 (Trial No. 1 of 1989). By the said judgment, the respondents (accused persons) have been acquitted of the charge under section 3(a) of the Railway Property (Unlawful Possession) Act. 2. The prosecution case, in short, is that on 8.2.1989 around 5.00 am, when the RPF officials of Bondamunda R.P.F. Post were returning from Bisra, they found the accused persons near Santoshpur coming by carrying something on their shoulders. Since the movement of the accused persons was found to be suspicious, they were asked to halt and as they took to their heels, they were chased. It is alleged that from their possession, cables and plates were recovered and seized under seizure list. These properties seized from the possession of the accused persons being the properties belonging to the Railways, the accused persons faced the trial for commission of offence under section 3(a) of the Railway Property (Unlawful Possession) Act. The plea of the defence is of complete denial and false implication. The prosecution, in the trial; has examined five witnesses besides proving the seizure list, the FIR and the report of the Permanent Way Inspector (P..W. 6) as to the ownership of the said seized cables and plates. 3. Heard Mr. D.K. Sahu, learned Standing Counsel for the Railways. None appears on behalf of the respondents. Perused the judgment passed by the trial court. 4. Before going to reappreciate 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 is the settled position of law that in an appeal against the order of acquittal the scope and power of the appellate forum is not that-wide as it is in case of an appeal against an order of conviction. The scope of the appeal thus remains to interfere with the order of acquittal reversing the finding of trial court against the prosecution, in case the order of acquittal is the outcome of perverse appreciation of evidence giving rise to some compelling reasons to interfere with the finding as it-has caused miscarriage of justice. The scope of the appeal thus remains to interfere with the order of acquittal reversing the finding of trial court against the prosecution, in case the order of acquittal is the outcome of perverse appreciation of evidence giving rise to some compelling reasons to interfere with the finding as it-has caused miscarriage of justice. It is also the position that the appellate court would hesitate to reverse the order of acquittal simply because a second view is taken in the matter of appreciation of evidence. The finding rendered by the trial court taking a view in respect of the evidence, is not permissible to set at naught the order of acquittal. Time and again, it has been held by the Hon'ble Apex Court as well as this Court that when the trial court had the occasion to look to the demeanour of witnesses while recording their evidence and in finally appreciating the same, ordinarily the said appreciation of evidence and the finding based upon the same, is not liable to be disturbed unless there exists compelling reasons to do so to. prevent grave miscarriage of justice. 5. In the backdrop of above, the evidence let in by the prosecution being carefully gone through, it is seen that when P.Ws. 1, 2, and 5 have disclosed that the accused persons were detained by them. The evidence of P.Ws. 3 and 4 is that they were chased and apprehended, It has been stated by P.W. 5 that from the possession of accused Buku Mahali and Jota Munda, cables were recovered, and two plates were recovered from the possession of accused Buchi. It is stated by P.W. 1 that accused persons were carrying gunny bags on their shoulders. P.W. 2 has also stated that they were carrying gunny bags on their shoulder and the evidence of P.W. 3 is also in the same vein. P.W. 1 has not stated as to whether each of the accused persons were then carrying one or more gunny bag or not. That is also the evidence of P.W. 2 whereas P.W. 3 has stated that accused persons were carrying one gunny bag each. When P.W. 1 is stating that the accused persons were detained on finding their movement to be suspicious, P.W. 2 also states so. That is also the evidence of P.W. 2 whereas P.W. 3 has stated that accused persons were carrying one gunny bag each. When P.W. 1 is stating that the accused persons were detained on finding their movement to be suspicious, P.W. 2 also states so. P.W. 3 however has stated that they were apprehended whereas P.W. 5 has come forward to say that he apprehended accused Buku Mahali and accused Jota Munda was apprehended by P.W. 2 whereas accused Buchi was apprehended. by P.W. 4. That has been so stated by P.W. 4, Fact remains that when admittedly the accused persons were not earlier known to these prosecution witnesses, none has stated as to wherefrom and how their names were ascertained. They have stated nothing to the effect that after apprehension, each of the accused persons being asked, disclosed their name as has been so recorded in the documents prepared in course of investigation. 6. In view of all the aforesaid, the trial court having found that the prosecution has failed to establish the factum of possession of those properties under the seizure list (Ext. 1) describing seizure of all such items from all the accused person beyond reasonable doubt by leading clear, cogent and acceptance evidence, this Court finds that the same. does not suffer from the vice of perversity. 7. In the result, this appeal questioning the order of acquittal passed by the learned Additional C.J.M.-cum-J.M.F.C., Rourkela in 2(C)CC Case No. 30 of 1989 stands dismissed. The LCR be sent back immediately.