Orissa High Court
Hemaraj Sharma vs Banwarilal Bathwal And Ors. on 17 September, 1987
Equivalent citations: 1988CRILJ1887
JUDGMENT K.P. Mohapatra, J.
1. This appeal is against the order passed by the learned Sessions Judge, Cuttack, acquitting the respondents of charges under Sections 323 and 379, I.P.C.
2. The appellant and the respondents are close door neighbours in a crowded residential locality of Cuttack town. Indisputably, they had been litigating in different Courts for several years and the relationship between them was far from being cordial. The appellant filed a complaint petition making allegations that in the morning of 27-3-1976 when he was engaged in the work of repairing and painting the old gate in front of his house, the respondents who were father and son respectively having formed an unlawful assembly being armed with lathis and cycle chains abused him in obscene language and having surrounded assaulted him by means of lathis and also attempted to hit him by the cycle chains. Respondent Banwarilal during the assault snatched away a gold necklace valued at Rs. 1500/- from his neck. The appellant was injured and was examined by a private medical practitioner (P.W. 4) who gave a certificate (Ext 1).
3. The learned Judicial Magistrate who tried the respondents framed charges against them under Sections 147, 323 and 379,1.P.C. Their defence to the charges was that on account of previous enmity, a false case was brought against them. In order to substantiate the chthe charges, the appellant examined himself, two eye-witnesses to the occurrence and the private medical practitioner (P.W. 4). The learned Judicial Magistrate rejected the evidence of P.W. 2 on the ground that he was a chance witness and had no business to be present at the time and the place when the alleged occurrence took place. He, however, accepted the evidence of the rest of the prosecution witnesses and while acquitting the respondents of the charge under Section 147, convicted all of them under Section 323 and sentenced them to undergo rigorous imprisonment for six months each. In addition, he convicted respondent Banwarilal under Section 379, I.P.C. and sentenced him further to undergo rigorous imprisonment for six months. The respondents appealed before the learned Sessions Judge who by the impugned order entertained doubt as to the truth of the prosecution case and having disbelieved the prosecution witnesses acquitted the respondents.
4. Guidelines have been set by a series of decisions of the Supreme Court as to how the High Court shall deal with an appeal against an order of acquittal. One of the latest decisions reiterating the established principle has been , Tota Singh v. State of Punjab. It has been held that the mere fact that the appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance With the one recorded in the order of acquittal passed by the Court below will not constitute a valid nd sufficient ground for setting aside the acquittal. The jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous. The learned Sessions Judge in taking a view against the appellant's case was mostly influenced by the facts that on account of previous litigations and enmity between the parties the approach to the prosecution evidence should be careful and cautious, the evidence of the appellant (P.W. 1) was not corroborated by independent, natural and neighbouring witnesses, some independent persons cited in the complaint petition as eye-witnesses to the occurrence were withheld from the Court, P.W. 3 who did not belong to the locality could be said to be a chance and not a natural witness, there was discrepancy in the evidence of P.Ws. 1 and 3 particularly with regard to theft of the gold necklace, the injuries on the person of the appellant could have been self-inflicted, there was complete absence of evidence of resistance which could have been shown by the appellant being a wrestler and above all, there was no material to show that such an incident was reported to the police station which was at a stone's throw from the place of occurrence. These considerations are undoubtedly very weighty and it is very difficult to surmount them.
5. According to the long established principle, the evidence of an interested or partisan witness whose relationship with the accused is inimical cannot be discarded on that ground alone, but should be scrutinized ith care and caution before acceptance. If the court will feel that before acceptance of such evidence there should be corroboration from independent sources, it should not hesitate to insist upon the same. In this case the appellant (P.W. 1) has no doubt stated about the assault and the snatching of the gold necklace from his neck. But on account of the strained relationship between the parties, corroboration of his evidence from independent sources was necessary. Unfortunately, there was no such corroboration. The neighbours and the people of the locality did not come forward to support the appellant's case. Some independent persons cited as prosecution witnesses in the complaint petition were also withheld. P.W. 3 did not belong to the locality and remained elsewhere. According to his evidence, he was the private tutor of the children of a neighbouring house and accidentally happened to be present when the alleged occurrence took place. When he visited another house shortly after, he did not reveal the incident to the house owner. This type of evidence hardly arouses confidence in a case of conviction on criminal charges. While the appellant stated that the gold necklace was snatched from his neck and was taken away by respondent Banwarilal, P.W. 3 did not say specifically that the gold necklace was taken away. The injuries were very minor in nature. It was surprising that the appellant being a wrestler did not resist and meekly submitted to the assault. He did not report the incident at the nearby police station, because there is no evidence of it. All these evidence, circumstances and probabilities induce me not to dislodge the findings recorded by the learned Sessions Judge which appear to be reasonable and plausible. Therefore, I do not consider that it is a fit case for interference with the order of acquittal.
6. In the result, the appeal is dismissed.