Orissa High Court
Santosh Kumar Pradhan vs Budhiram Nayak And Others .......... ... on 11 January, 2019
Author: A. K. Mishra
Bench: A. K. Mishra
HIGH COURT OF ORISSA: CUTTACK.
Criminal Revision No.329 of 2000.
An application under Section 401 of the Code of Criminal Procedure.
---------
Santosh Kumar Pradhan .......... Petitioner.
- Versus-
Budhiram Nayak and Others .......... Opposite Parties.
Counsel for Petitioner :M/s. S. K. Padhi, Miss. D. Mohapatra, S.
K. Mohapatra, B. K. Sahoo and S. Parida.
Counsel for Respondent :Standing Counsel, M/s.R. P. Mohapatra,
D. Mohapatra and P.C. Sahu.
.
PRESENT:
THE HONOURABLE DR. JUSTICE A. K. MISHRA.
---------------------------------------------------------------------------------------
Date of hearing : 07.01.2019 :: Date of Judgment : 11.01.2019
---------------------------------------------------------------------------------------
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
2
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 it
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.
3
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 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
4
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 Aarwala 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 Kotaiah
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 retrial 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. 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 make
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
5
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 xxxxxx xxxxxx"
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
analyzed the scope of revision in the following manner:-
"xxxx xxxxx xxxxx
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 case 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
6
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.
Having carefully gone through the materials on record it is found
that learned Trial 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.
.........................
Dr. A. K. Mishra, J.
Orissa High Court, Cuttack, Dated the 11th January, 2019/mkp