Orissa High Court
State Of Orissa vs Bhagirathi Sahu & Others on 4 September, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
G.A. No.22 of 2002
In the matter of an Appeal under Section 378(1)&(3) of the
Code of Criminal Procedure, 1973 and from the judgment of
acquittal dated 17th March 1998 passed by the learned Sessions
Judge, Kandhamal-Boudh, Phulbani in Sessions Trial Case No.73
of 1996 and Sessions Trial No.149 of 1996.
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State of Orissa .... Appellant
-versus-
Bhagirathi Sahu & Others .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode)
=========================================================
For Appellant - Mr. S.K. Nayak,
Additional Govt. Advocate.
For Respondents - Mr. Biswaranjan Swain,
Advocate (Amicus Curiae).
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
Date of Hearing : 27.08.2024 : Date of Judgment : 04.09.2024
The State of Orissa, in this Appeal, has called in question the judgment of acquittal dated 17th March 1998 passed by the learned Sessions Judge, Kandhamal-Boudh, Phulbani in Sessions Trial Case No.73 of 1996 and Sessions Trial No.149 of 1996 arising Page 1 of 11 GA No.22 of 2002 out of G.R. Case No.99 of 1994 corresponding to Tikabali P.S. Case No.44 of 1994 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), G. Udayagiri.
The Respondents (accused persons), standing charged for commission of offence under section 147/302/325/323 read with section-149 of the Indian Penal Code, 1860 (for short, 'the IPC') have been acquitted in the said trial with the finding that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt.
2. Prosecution case is that during relevant period, there was ethnic violence and dissection amongst the people belonging to the members of one Scheduled Tribe Community on one hand and members of one Scheduled Caste and other Community on the other, giving rise to serious breach of piece in the District. The life and properties of innocent persons were on stake and they were being put to unnecessary hardship and harassment on account of the said situation. In order to bring peace and harmony between the members of the two Communities, in reconciling the situation a meeting was scheduled to be held on 02.06.1994 during noon hour near the mango grove (locally known as Bali Amba Thota).
Purna Chandra Gonda (deceased), Sudarsan Ganda (P.W.4) and Chandramani Naika (P.W.6) were called to attend the Page 2 of 11 GA No.22 of 2002 meeting. It is stated that the accused persons then forming an unlawful assembly being armed with deadly weapons were concealing their presence somewhere near the spot and no sooner did Purna Chandra (deceased), P.W.4 and P.W.6 arrive at the spot, the accused persons in prosecution of the common object of the said assembly, began assaulting them. For that P.W.4 and P.W.6 when sustained injuries, Purna receiving the injuries fell down and died.
The wife of the deceased (Informant-P.W.1) having orally reported the matter to the Assistant Sub-Inspector of Police attached to Pasara Police Outpost under Tikabali Police Staton; the same was reduced into writing (Ext.11) and sent the ASI to the OIC, Tikabali Police Station for registration of the case. The ASI awaiting further direction took up the investigation by treating the said report as F.I.R.
The OIC (P.W.12) later on after registration of the case, took charge of investigation.
3. In course of investigation, the Investigating Officer (I.O.- P.W.11) examined the Informant (P.W.1). Having visited the spot, prepared the spot map (Ext.12). He (P.W.11) then seized the blood-stained stone, one blood-stained old napkin of about 6 feet, one blood-stained earth and sample earth in presence of witnesses and prepared seizure list (Ext.13); M.O.-I is the said stone and M.O.-II is the said napkin. The I.O. (P.W.11) then went Page 3 of 11 GA No.22 of 2002 to the house of Purna Chandra Naik (deceased), Chandramani Nayak (P.W.6) and Sudarsana Ganda (P.W.4) and saw them in an injured condition. They were shifted to Takabali UGPHC in police vehicle. He (P.W.11) then requested the Medical Officer for their examination. The Medical Officer declared Purna Chandra Ganda as dead. The OIC (P.W.12) having taken over the charge of investigation, held the inquest over the dead body of the deceased and prepared the report (Ext.8). He sent the dead body for postmortem examination by issuing necessary requisition. He also examined the Informant (P.W.1) and other witnesses and seized other incriminating articles. On completion of the investigation, the I.O. (P.W.12) submitted the Final Form placing this accused to face the Trial for commission of the offence.
4. Learned J.M.F.C., G. Udayagiri, on receipt of the Final Form, took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charges for the aforesaid offences against these Respondents-accused person.
5. In the Trial, the prosecution in total examined thirteen (13) witnesses. Out of them, the important are P.Ws.1, 2, 3 and 4, who being the wife, mother, sister and brother of the deceased; claim to be the eyewitnesses. The star witnesses for the prosecution are P.Ws.4 and 6 who have received injuries in the said incident, Page 4 of 11 GA No.22 of 2002 whereas P.W.5 is the wife of P.W.4 and P.W.7 is another witness who too claims to have seen the incident. The Doctor, who had conducted postmortem examination over the dead body of the deceased, when has been examined as P.W.8; P.W.9 is the Doctor, who had examined the injured persons i.e. P.Ws.4 and 6. Two Investigating Officers are P.W.11 and P.W.12.
Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 27. Out of those, important are the FIR (Ext.11); spot maps, Exts.12 and 18, inquest report (Ext.8); postmortem report (Ext.1); medical reports of P.Ws. 4 and 6 which have marked Exts.2, 3,4, 5 and 6. The bed head tickets of P.W. 6 and X-ray plates relating to him are marked as Exts.20, 23 and 24; and so also in respect of Sudarsan (P.W.4), those are Exts.22, 25, 26 and 27. The seized incriminating articles; one big stone and blood-stained napkin having been produced during trial, those have been marked as Material Objects (M.O.-1 and M.O.-II).
6. The defence being called upon has examined three (3) witnesses as D.Ws.1 to 3.
7. The Trial Court upon examination of the evidence and their evaluation has ultimately arrived at a conclusion that the prosecution has not been able to prove the charges against the Page 5 of 11 GA No.22 of 2002 accused persons by leading, clear, cogent and acceptable evidence beyond reasonable doubt which is impugned in this Appeal.
8. Learned Counsel for the State submitted that the evidence of P.Ws.4 and 6 have been appreciated by the Trial Court in perverse manner. According to him, their evidence coupled with the evidence of other witnesses such as P.Ws.1 to 4 and 7 ought to have been held to be sufficient to fasten the guilt upon the accused persons when the medical evidence provide corroboration to the other evidence. In furthering the submission, he inviting our attention to the depositions of all the prosecution witnesses and side by side, took up through the reasonings given by the Trial Court while dis-believing their versions and arriving at the final conclusion. He thus, submitted that it is a fit case where the judgment of acquittal is required to be set at naught.
9. Learned counsel for the Respondents-accused persons placing the scope of inference with the finding of the Trial Court in seisin of an Appeal, challenging the acquittal contended that the Trial Court after detail and thorough examination of evidence and having appreciated all the circumstances surrounding the incident as have emerged from the version of the prosecution witnesses did commit no mistake in acquitting the accused persons.
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10. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to 13) and have perused the documents admitted in evidence marked as Exts.1 to 27.
11. Before proceeding to address the rival submissions, we would like to place on record, the scope of interference in an appeal against the acquittal and when the same is justified. In exceptional cases, where there are compelling circumstances and the judgment under Appeal is found to be perverse, the Appellate Court can interfere with the order of acquittal. The Appellate Court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference - Pudhu Raja v. State (2013) 1 SCC (Cri) 430: (2012) 11 SCC 196; Phula Singh V. State of Himachal Pradesh, 2014 AIR SCW 1499. See also Basappa v. State of Karnataka 2014 AIR SCW 1529.
Interference with acquittal in Appeal is justified only when there is element of perversity traceable from the findings recorded by the lower court in appreciation of evidence - Govindaraju v. State (2012) 2 SCC (cri) 533: (2012) 4 SCC 722. In Ramesh Harijan v. State of U.P. (2012) 2 SCC (Cri) 905: (2012) 5 SCC 777, it has been held as follows:-
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"The law of interfering with the judgment of acquittal is well- settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide: State of Rajasthan v. Talevar & Anr., AIR 2011 SC 2271; State of U.P. v. Mohd. Iqram & Anr., AIR 2011 SC 2296; Govindaraju @ Govinda v. State by Srirampuram Police Station & Anr., (2012) 4 SCC 722; and State of Haryana v. Shakuntla & Ors., (2012) 4 SCALE 526).
12. Now in order to address the rival submissions on merit bearing in mind, the position of law as noted above, let's first proceed to examine the evidence of P.Ws.4 and 6.
The deceased, P.W.4 as well as P.W.6 are the permanent resident of the same village. It is stated by P.W.4 that at the relevant time on that day, when he was in his house, accused Suresh and Kalia had called him to hold a meeting and therefore, he (P.W.4), Chandramani (P.W.6) and Purna (deceased) went near the mango grove where the accused persons were present. It is stated that the accused Suresh and accused Sashadev created trouble, when accused Bijay gave a push by a lathi on his left arm. Page 8 of 11 GA No.22 of 2002 accused Sashadev gave a lathi blow on his left upper arm and causing fracture and resulting his fall. It is next stated that thereafter all the accused persons dealt blows on Purna and he being a strong man could able to get out of the same and ran away. So, this P.W.4 states to have been injured in the incident and it was because of the role played by accused Bijay and Sesadev. When he (P.W.4) implicates all the accused persons in assaulting Purna, it appears that he had not stated during investigation before the I.O. that all the accused persons had assaulted the deceased-Purna. The Trial Court, therefore, is right in saying that this P.W.4 has developed his version during the trial and that is for obvious reason to bring all the accused within the arena of the case. P.W.5 who is none other than the wife of P.W.4 has not stated as to who among those accused persons assaulted P.W.4. Her evidence is also not on the score that P.W.4 had told him about the incident when they met. That apart the evidence of P.Ws.6 and 7 are contradictory to the evidence of other witnesses.
P.W.6, when has stated that accused Suresh gave a kick at him, he further states that accused Suresh dealt lathi blow on his left upper arm and then accused Suresh had caught hold of Purna. His evidence is not as regards the assault upon Purna. Page 9 of 11 GA No.22 of 2002
The evidence of P.Ws.4 and 6 do not run at par when both as per their version had been to the meeting place and were present.
13. The Trial Court as it appears from the judgment has also made a thorough survey of the evidence of P.W.1 who had lodged the F.I.R. (Ext.11) and having found grave discrepancies therein as also in the evidence of P.W.2, mother of the deceased and P.W.3, the brother of the deceased has refused to accept their versions as they implicate these accused persons in the said incident, more so when being not in a position to find as to who did what and as against whom. We having given our anxious and thoughtful consideration over the evidence of the prosecution witnesses, find no such infirmity much less perversity to be surfacing in the matter of appreciation of evidence as has been made by the Trial Court.
Taking all those into account and finding, the Trial Court, to have rightly held the prosecution to have failed to establish the charges beyond reasonable doubt through the available evidence, we see no reason or justification to interfere with the same within the scope and ambit of this Appeal as noted in the aforesaid paragraphs.
14. In the result, the Appeal stands dismissed. The judgment of acquittal dated 17th March 1998 passed by the learned Sessions Page 10 of 11 GA No.22 of 2002 Judge, Kandhamal-Boudh, Phulbani in Sessions Trial Case No.73 of 1996 and Sessions Trial No.149 of 1996, are hereby confirmed.
(V. Narasingh) (D. Dash)
Judge Judge
Narayan
Signature Not Verified
Digitally Signed
Signed by: NARAYAN HO
Reason: Authentication
Location: OHC
Date: 04-Sep-2024 16:46:26
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GA No.22 of 2002