Orissa High Court
State Of Orissa vs Kabi @ Kabiraj Swain on 24 September, 2024
Bench: D. Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
GA No.32 of 2002
In the matter of an Appeal under Section 378(1)(3) of the Criminal
Procedure Code and from the judgment dated the 20.11.1997 passed by
the learned 2nd Additional Sessions Judge, Berhampur in Sessions Case
No.13 of 1996.
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State of Orissa .... Appellant
-versus-
1. Kabi @ Kabiraj Swain .... Respondent No.3
2. Manu @ Manas Swain
3. Sanjaya Swain
(Leave to appeal was rejected
against Respondent Nos.1-Kabi @
Kabiraj Swain & 2-Manu @
Manas Swain)
For Appellant : Mr. P.K. Mohanty, ASC
For Respondent : Mr. S.D. Das, Sr. Advocate CORAM:
MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of hearing : 27.08.2024 : Date of judgment :24.09.2024 V. Narasingh, J. Assailing the judgment of acquittal passed by the learned 2nd Additional Sessions Judge, Berhampur in SessionsCase No.13of 1996 thereby acquitting the Respondents S.C. No.94/1996 (GDC) who were charged under Sections 302/34 of Indian Penal Code (hereinafter referred to as IPC) for causing the death of one Page 1 of 10 GA No.32 of 2002 Ladu Rout (hereinafter referred to as the deceased), the present appeal has been preferred by the State.
2. It is apt to note here that while considering grant of leave to appeal the same was refused in respect of Respondent Nos.1 (Kabi @ Kabiraj Swain) & 2 (Manu @ Manas Swain). As such, refusal has attained finality. The appeal is thus confined to Respondent No.3-Sanjaya Swain.
3. The case of the prosecution in brief is that on 24.06.1995, the deceased Ladu Rout after taking dinner came out of his house around 8:30 to 8:40 P.M. to get pan masala. Twenty minutes after he left the house, on hearing hulla, his brother-P.W.1 (Bhima Rout) ran to the spot and there he saw that the accused-Respondent No.2 (Manu @ Manas Swain) has caught hold of the left hand of the deceased and the accused- Respondent No.1 (Kabi @ Kabiraj Swain) is trying to inflict a blow by a spring knife on the belly of the deceased. But since the deceased slipped some steps behind he escaped the assault. Immediately thereafter the accused Respondent Sanjaya Swain, in respect of whom leave was granted, snatched the knife from Kabi @ Kabiraj Swain and pierced the knife in the left belly of the deceased.
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4. It is the further case of the prosecution that P.W.1- Bhima Rout along with Gauranga Rout and others took his injured brother to M.K.C.G. Medical College Hospital, Berhampur.
5. The genesis of the offence is that the accused persons were abusing one Urbasi Raut-P.W.7 and when it was objected to by the deceased quarrel ensued in which the deceased suffered the injury which, ultimately resulted in his death.
6. Law was put into motion on the basis of FIR lodged by P.W.1. and Purushottampur P.S. Case No.79 of 1995 was registered under Sections 341/326/294/34 of IPC on 25.06.1995. As the injured-Ladu Rout succumbed to his injuries while undergoing treatment at M.K.C.G. Hospital, Berhampur, the case turned to one under Section 302 of IPC and P.W.10- Rajendra Kumar Senapati, O.I.C. took over the investigation.
7. After completion of investigation, charge sheet was submitted against the accused persons and they were charged under Sections 302/34 of IPC and faced trial for committing the murder of Ladu Rout by intentionally causing his death in furtherance of their common intention. Page 3 of 10 GA No.32 of 2002
8. To fortify its stand the prosecution relied on 11 witnesses and their descriptions are as under. P.W.1 Bhima Rout-brother of the deceased (Informant) P.W.2 Gauranga Rout-brother-in-law of the deceased (eyewitness) P.W.3 Madan Mohan Rout-Police Constable P.W.4 Prafulla Kumar Gauda-Police Constable (witness to the seizure of lungi and gold ring of the deceased) P.W.5 Basanti Rout-wife of the deceased P.W.6 Bijaya Chandra Rout-witness to seizure of the wearing cloth of the deceased P.W.7 Urbasi Rout P.W.8 Dr. Jagadananda Misra-Doctor P.W.9 Raghunath Das-A.S.I P.W.10 Rajendra Kumar Senapati-S.I. P.W.11 Dr. H.K. Sahu- Doctor
8.A. One witness was also examined on behalf of the defence. Several documents were marked and admitted into evidence for the prosecution of which, the bed head ticket-Ext.6 is of seminal importance. The alleged weapon offence-the knife was marked as M.O.I, the wearing apparels of the deceased Lungi and blood stained cloth were marked as M.Os.II & M.O.III respectively.
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9. The learned Trial Court analyzing the evidence on record acquitted the Respondents.
10. Learned counsel for the State, Mr. P.K. Mohanty submits that the analysis of evidence by the learned Trial Court in returning the finding of acquittal is ex-facie perverse and therefore, calls for interference.
11. Learned Senior Counsel for the Respondent, Mr. S.D. Das on the other hand submits that the judgment of acquittal is based on sound reasoning and as such does not merit any interference.
12. The principles governing the exercise of power in an appeal against acquittal is worth reiterating before adverting to the factual matrix of the case at hand. In Mrinal Das & Others vs. the State of Tripura, (2011) 9 SCC 479 the Apex Court has extensively dealt with the scope of an Appellate Court, to interfere with the judgment of acquittal and referred to the following precedents.
i. State of Goa vs. Sanjay Thakran & Anr. (2007) 3 SCC 755 ii. Chandrappa and Others vs. State of Karnataka (2007) 4 SCC 415 iii. State of Uttar Pradesh vs. Jagram and Others, (2009) 17 SCC 405 Page 5 of 10 GA No.32 of 2002 iv. Sidhartha Vashisht alias Manu Sharma vs. State (NCT of Delhi) (2010) 6 SCC 1 v. Babu vs. State of Kerala, (2010) 9 SCC 189 vi. Ganpat vs. State of Haryana and others, (2010) 12 SCC 59 vii. Sunil Kumar Sambhudayal Gupta (Dr.) and Others vs. State of Maharashtra, (2010) 13 SCC 657 viii. State of Uttar Pradesh vs. Naresh and Others, (2011) 4 SCC 324 ix. State of Madhya Pradesh vs. Ramesh and another, (2011) 4 SCC 786
13. The guiding principles in an Appeal against acquittal and the power of the Appellate Court to re-appreciate, review or reconsider evidence and interfere with an order of acquittal was restated while quoting paragraph-42 of the judgment of the Apex Court in the case of Chandrappa and Others vs. State of Karnataka (Supra).
"42.....The following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(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 Page 6 of 10 GA No.32 of 2002 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.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
14. The most material witnesses in the case at hand are P.Ws.1 & 7.
14-A. P.W.1 is the brother of the deceased and the informant. In paragraph-6 of his cross-examination P.W.1 has stated that as soon as he reached the spot the accused Sanjaya Swain the Respondent No.3 herein to whom the present appeal is confined, stabbed on the belly of the deceased. The relevant extract of his deposition is culled out hereunder:- Page 7 of 10 GA No.32 of 2002
".........As soon as I reached the spot, accused Sanju Swain stabbed on the belly of my deceased brother by a knife. The occurrence had taken place in front of the house of Urbasi just adjacent to her verandah. By then the accused persons were close to my deceased brother......."
15. P.W.7-Urbasi Rout, who did not support the prosecution has stated in her evidence that the accused Kabi @ Kabiraj Swain stabbed with a knife on the belly of the deceased. It is her further statement that she has not seen the accused Respondent No.3-Sanjaya Swain and Manu @ Manas Swain- Respondent No.2 at the spot.
16. In this background the evidence of P.W.8 the doctor who was treating the deceased when he was admitted in the hospital as an indoor patient is of significance. The bed head ticket has been marked as Ext.6.
17. P.W.8 has stated that P.W.1-Bhimasena Rout (brother of the deceased), Jayasena Rout and Bidyadhara Rout had given information about the cause of injuries and their names have been reflected in the bed head ticket and Bhimasena Rout (P.W.1) and Jayasena had put their signatures.
The said witnesses have further stated that Kabi @ Kabiraj Swain has been named as the person causing the injury. Page 8 of 10 GA No.32 of 2002
18. During the course of hearing, this Court carefully scrutinized Ext.6 and found that Kabi @ Kabiraj Swain has been clearly stated therein, as the person causing injury.
19. It is apposite to state that the learned Trial Court taking note of the contradictions in the evidence regarding the identity of the accused, who caused the injury to which the deceased succumbed, acquitted them.
20. This Court while granting leave to appeal has declined the motion on behalf of the prosecution for re-examination of the judgment of acquittal in respect of accused Kabi @ Kabiraj Swain who is stated to have caused the injury on the deceased, as borne out from testimony of P.W.7 as well as on perusal of Ext.6-Bed head ticket proved through independent witness P.W.8-the doctor.
20-A. The non-grant of leave to challenge the judgment of acquittal in respect of leave was not assailed by the prosecution and has attained finality, as noted.
21. The learned Trial Court has taken note of the discrepancy in the statement of P.W.1-brother of the deceased in his deposition and the statement as reflected in Ext.6-the bed head ticket and taking note of the same giving the benefit of doubt acquitted the Respondent.
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22. On a close scrutiny of the evidence on record and carefully analyzing the same, on the touchstone of law laid down by the Apex Court regarding the appreciation of evidence while evaluating the judgment of acquittal, this Court is not persuaded to hold that the reasoning adopted by the learned Trial Court on the basis of evidence regarding the complicity of the accused persons more particularly the Respondent No.3- Sanjaya Swain to whom the appeal is confined can be said to be perverse.
23. Hence, the Appeal being devoid of merit is dismissed.
24. The bail bond of Respondent No.3-Sanjaya Swain stands cancelled.
(V. Narasingh) Judge D. Dash, J. I agree (D. Dash) Judge Orissa High Court, Cuttack, Dated the, 24th September, 2024/Ayesha Signature Not Verified Digitally Signed Signed by: AYESHA ROUT Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 26-Sep-2024 18:13:28 Page 10 of 10 GA No.32 of 2002