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2021 DIGILAW 62 (ORI)

Laxminarayan Panigrahi v. Kishoremohan Mohapatra

2021-02-11

S.K.SAHOO

body2021
JUDGMENT S. K. Sahoo, J. - The matter is taken up through Video Conferencing. 2. This appeal has been preferred by the appellant Laxminarayan Panigrahi challenging the impugned judgment and order dated 03.02.1990 passed by the learned J.M.F.C., Balasore in I.C.C. Case No.309 of 1988 in acquitting the respondents Kishoremohan Mohapatra, Manoj Kumar @ Manu Mohapatra and Saroj Kumar @ Ninu Mohapatra of the charges under sections 447, 427, 379, 323 read with section 34 of the Indian Penal Code. The appellant preferred an application under section 378(4) of Cr.P.C. seeking for special leave to appeal from the order of acquittal which was granted in Criminal Misc. Case No.298 of 1990 as per order dated 27.08.1990 and accordingly, the present appeal was filed. 3. The prosecution case, in short, is that the appellant is the complainant in the said complaint petition and he presented the complaint petition on 31.10.1988 before the learned S.D.J.M., Balesore on the accusation that on 12.10.1988 at about 11.00 a.m., the respondents being armed with deadly weapons such as axe, lathi, katuri, sickle and sword entered into his land which appertains to Khata No.97, Plot No.529 at Mouza-Ghoadapada having an area of Ac.0.06 decimals and cut about fifty cubits of dry and green fence from the said land and they also cut and removed some trees which were also standing on the boundary of the said plot. The appellant raised protest but the respondents abused him in filthy language and then the respondents also assaulted the appellant for which he sustained injuries. When the witnesses came to the spot and raised protest against the conduct of the respondents, they fled away. 4. After the presentation of the complaint petition, the initial statement of the complainant was recorded and finding prima facie case, the learned S.D.J.M., Balesore took cognizance of offences under sections 447, 427, 379 and 323 of the Indian Penal Code and process was issued against the respondents. After the appearance of the respondents, they were directed to be released on bail and the case was transferred to the Court of J.M.F.C., Balasore for disposal in accordance with law. Two witnesses were examined before charge and then charge was framed against the respondents under sections 447, 427, 379, 323 read with section 34 of the Indian Penal Code. 5. The defence plea of the respondents was one of denial. 6. Two witnesses were examined before charge and then charge was framed against the respondents under sections 447, 427, 379, 323 read with section 34 of the Indian Penal Code. 5. The defence plea of the respondents was one of denial. 6. In order to establish the charge, the appellant examined four witnesses including himself as P.W.1. P.W.2 Laxman Mohanty and P.W.3 Narendra Khuntia are the independent witnesses to the occurrence and P.W.4 Dr. Jayanta Kumar Das medically examined the appellant and noticed two bruises which were opined to be simple in nature and he proved his report. Apart from the oral evidence, the appellant in order to establish the ownership over the land in question proved Ext.1, the R.O.R. which indicated that the land stood recorded in the name of the sons of the appellant. He also proved the rent receipts vide Ext.2 to Ext.2/3. The injury report of the appellant has been marked as Ext.3. 7. The learned trial Court after analysing the evidence on record came to hold that the prosecution has failed to establish the charges and accordingly, acquitted the respondents of all the charges. 8. Since nobody appeared on behalf of the appellant to argue the appeal on 10.12.2020 and it is a thirty years old appeal, Mr. Rajeet Roy, Advocate was appointed as Amicus Curiae. He was supplied with the paper book and given time to prepare the case. He placed the evidence of the witnesses and also the impugned judgment. While assailing the impugned judgment and order of acquittal, he argued that the finding of the learned trial Court is based on conjectures and the evidence of P.Ws.2 and 3, who were natural witnesses have been disbelieved without any cogent reason. He further argued that the evidence of those two witnesses corroborates the version of the complainant and they stood the test of cross-examination and therefore, the learned trial Court should not have held that the prosecution failed to establish the charges against the respondents. He placed reliance on the judgments of the Honble Supreme Court in the cases of Chandrappa and others -Vrs.-State of Karnataka reported in (2007)4 Supreme Court Cases 415 and Rana Pratap and others -Vrs.- State of Haryana reported in (1983)3 Supreme Court Cases 327. 9. None appears on behalf of the respondents. 10. He placed reliance on the judgments of the Honble Supreme Court in the cases of Chandrappa and others -Vrs.-State of Karnataka reported in (2007)4 Supreme Court Cases 415 and Rana Pratap and others -Vrs.- State of Haryana reported in (1983)3 Supreme Court Cases 327. 9. None appears on behalf of the respondents. 10. Perused the complaint petition, the evidence adduced by the appellant and also the impugned judgment meticulously and carefully. In the case of Chandrappa (supra) while reiterating the principle relating to the power of the appellate Court in dealing with the appeal against an order of acquittal, it has been held as follows: '(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. (5) If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court.' Keeping the above cardinal principle in mind, let me analyze the evidence on record to find out as to whether the conclusions drawn by the trial Court is perverse and against weight of evidence or not, whether the view taken is reasonable and plausible or not, whether the findings of the trial Court is palpably wrong, manifestly erroneous or not. This Court is indeed quite conscious of the fact that there is no limitation on the part of an appellate Court to review the entire evidence upon which the order of acquittal has been passed and to come to its own conclusion and review the trial Courts conclusion on both facts as well as law, but unless this Court is satisfied that there has been flagrant miscarriage of justice by pronouncing the order of acquittal substantially and compelling reasons are there to interfere with the conclusions arrived at by the trial Court, the finding of the acquittal cannot be disturbed or interfered with. 11. While dealing with the charge under section 447 of the Indian Penal Code, the learned trial Court has been pleased to observe that there is no evidence that the respondents trespassed into the land of the appellant and it is the prosecution case that the fence was cut and trees were standing at a distance of six feet away from the fence and therefore, the learned trial Court held that even without entering inside the bari of P.W.1, it was possible to cut the trees. Section 447 of the Indian Penal Code deals with punishment for criminal trespass and criminal trespass is defined under section 441 of the Indian Penal Code. Every trespass by itself is not criminal. Section 447 of the Indian Penal Code deals with punishment for criminal trespass and criminal trespass is defined under section 441 of the Indian Penal Code. Every trespass by itself is not criminal. The ingredients of the offence of criminal trespass will be attracted, if someone enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. It will also be attracted, if someone after entering into or upon such property lawfully remains there unlawfully with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence. The offence is complete as soon as there is unlawful entry and it falls within section 441 of the Indian Penal Code. Therefore, first there must be clinching material on record that the respondents entered into or upon the property which was in possession of P.W.1. P.W.1 stated that the bari of the respondents was adjoining to his house in the south and the middle fence is the disputed fence. He further stated that the dispute was for fence and trees and the trees were not in fence but those were six feet away from the fence. He further stated that the respondents wanted to purchase the land in question prior to one month of his purchase. Thus from the evidence of P.W.1, it appears that there was scramble for possession of land between the parties. There is no material on record as to where exactly the fence was put and who put up the fence and where the trees were standing. There is also no clear evidence that the respondents entered into the land which was in possession of the appellant and then cut the fence as well as the trees. In absence of any such evidence, it is very difficult to arrive at a conclusion that the ingredients of the offence under section 447 of the Indian Penal Code are attracted and therefore, the findings of the learned trial Court on this score cannot be said to be perverse. 12. Coming to the offence under section 427 of the Indian Penal Code, it is required to be proved that the respondents committed mischief as defined under section 425 of the Indian Penal Code. 12. Coming to the offence under section 427 of the Indian Penal Code, it is required to be proved that the respondents committed mischief as defined under section 425 of the Indian Penal Code. The essential ingredients of mischief as defined in section 425 of the Indian Penal Code are that there must be intention to cause or knowledge of likelihood of causing wrongful loss or damage to the public or to any person in destroying the property in question or causing such change in the property or in the situation thereof as destroying or diminishing its value or utility or affecting it injuriously. Mischief involves mental act with a destructive animus. Destruction with object of creating wrongful loss or damage is obligatory to be established. Except the vague statements of P.W.1 and other witnesses that the respondents cut the fence and some trees, there are no other materials to attract the ingredients of the offence of mischief. In case of police investigation, the spot visit note and report of the Amin apart from the documents proved by the appellant would have made the task of the Court easier to find out culpability of the respondents, which is not the case here. Thus the learned trial Court rightly disbelieved the charge under section 427 of the Indian Penal Code. 13. The learned trial Court while dealing with the charge under section 379 of the Indian Penal Code has been pleased to hold that the sons of the appellant were the owners of the land and the appellant was in possession of the same. At this juncture, it would be profitable to refer to some of the decisions of this Court. The offence of theft consists in the dishonest taking of any moveable property from out of possession of another without his consent. Dishonest intention exists when the person so taking the property intends to cause wrongful gain to himself or wrongful loss to the other. It is true that an act does not amount to theft unless there be not only no legal right but no appearance or colour of a legal right and bona fide claim of right is always a good defence to a prosecution for theft. (Ref: Uma Charan Chand -Vrs.- Charan Das reported in Vol.35(1969) Cuttack Law Times 186). It is true that an act does not amount to theft unless there be not only no legal right but no appearance or colour of a legal right and bona fide claim of right is always a good defence to a prosecution for theft. (Ref: Uma Charan Chand -Vrs.- Charan Das reported in Vol.35(1969) Cuttack Law Times 186). An offence of theft is committed when a person removes moveable property of another person without his consent dishonestly. An act is said to have been done dishonestly, if it is done with a view to cause wrongful loss to the other person or wrongful gain to oneself. (Ref: Hadubandhu Singh -Vrs.- Sudhkar Paikara reported in Vol.36(1970) Cuttack Law Times 469). The offence of theft consists in the dishonest removal of moveable property without the consent of the owner. Dishonest removal means anything done to cause wrongful gain or wrongful loss. (Ref: Jadu Bal -Vrs.- The State reported in Vol.20(1954) Cuttack Law Times 544). In view of ratio laid down in the aforesaid decisions, when there are no material on record over which particular plot of land, the fence and trees were standing and that the respondent was in lawful possession of the same, mere removal would not attract the offence under section 379 of the Indian Penal Code. 14. The learned trial Court while discussing the charge under section 323 of the Indian Penal Code has been pleased to hold that the injury report (Ext.3) proved from the side of the appellant is a corroborative piece of evidence to the statement of the appellant. However, after disbelieving the evidence of P.W.2 and P.W.3 mainly on the ground that they are chance witnesses and their presence at the place of occurrence at the relevant point of time is doubtful, the learned trial Court further held that the prosecution did not like to examine the nearby neighbours when they were present at the spot and non-examination of the material witnesses cast a great deal of doubt to the prosecution case. In the case of Rana Pratap (supra), the Honble Supreme Court has been pleased to hold that the evidence of the chance witnesses cannot be discarded or viewed with suspicion. The learned trial Court rightly did not find it safe to accept the evidence of the solitary witness like P.W.1 to convict the respondents under section 323 of the Indian Penal Code. 15. The learned trial Court rightly did not find it safe to accept the evidence of the solitary witness like P.W.1 to convict the respondents under section 323 of the Indian Penal Code. 15. It is needless to say that the occurrence allegedly took place on 12.10.1988 and the complaint petition was filed on 31.10.1988 which was after a gap of nineteen days. The appellant has not given any reasonable explanation for the delay in filing the complaint petition. He merely stated that the delay occurred as the Court was closed due to Durga Puja and that on the reopening day, the case was filed. There is no evidence on record as to when the Durga Puja vacation commenced in the relevant year and when the Court was reopened. No cogent explanation has been offered as to why P.W.1 did not go to the police station to lodge the first information report. He merely stated in his evidence that the police personnel were not taking the case for which he did not go to police station. It is not a case where the appellant approached the police to lodge the F.I.R. but they did not take any action. In the case of Patra Mirgan -Vrs.- State reported in 1994(2) Crimes 613 (Orissa), it is held that in criminal trial, one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. It is for the reason that delay affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be made before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. Therefore, the explanation offered by the appellant in filing the complaint petition after nineteen days of the alleged occurrence is not acceptable. 16. In view of the foregoing discussions, I am of the humble view that the impugned judgment and order of acquittal passed by the learned trial Court does not suffer from any infirmity or illegality. Therefore, the explanation offered by the appellant in filing the complaint petition after nineteen days of the alleged occurrence is not acceptable. 16. In view of the foregoing discussions, I am of the humble view that the impugned judgment and order of acquittal passed by the learned trial Court does not suffer from any infirmity or illegality. There is no flaw in the approach of the learned trial Court in acquitting the respondents of all the charges. The conclusions drawn by the trial Court is neither perverse nor against weight of evidence. The view taken by the trial Court is quite reasonable and plausible. It cannot be lost sight of the fact that there is background of the civil dispute between the parties and the offences are not that serious in nature. The occurrence allegedly took place in the year 1988 and the order of acquittal was passed in the year 1990 and in the mean time, more than three decades have passed. The parties seem to have lost interest in the case for which no one appeared on the last date when the Amicus Curiae was appointed and today also no one appeared for the respondents. In the result, the criminal appeal being devoid of merit stands dismissed. The hearing fees is assessed to Rs.5,000/- (rupees five thousand) in toto and the same be paid to the learned Amicus Curiae immediately.