Orissa High Court
State Of Orissa vs Pradeep Kanhar on 30 September, 2021
Bench: S.K.Mishra, Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLLP No.16 of 2010
State of Orissa .... Appellant
Mr.A.K.Nanda, Addl. Government Advocate
-versus-
1.Pradeep Kanhar
2.Subhakanta Kanhar
3.Biratha Bagarty
4.Bikrama Kanhar .... Respondents
Mr.D.J.Sahoo, Advocate
CORAM:
JUSTICE S.K.MISHRA
JUSTICE SAVITRI RATHO
ORDER
30.09.2021 Order No.
10. 1. This matter was heard through Video Conferencing mode earlier and by hybrid mode on 27.09.2021 due to COVID-19 pandemic .
2. We have heard Mr. A.K.Nanda, learned Addl. Government Advocate for the appellant-State and Mr. Suryakanta Dwivedi and Mr Dibyjyoti Sahoo D.J.Sahoo learned counsels for the respondents-opp. parties.
3. This application has been filed by the appellant-State under Section 378 (1) and (3) of the Cr.P.C. for leave to appeal against the judgment dated 29.08.2009 passed by the learned Adhoc Addl. Sessions Judge, Fast Track Court No.2, Kandhamal, Phulbani in Sessions Trial Case No.08 of Page 1 of 2 2009 arising out of G.R. Case No.408 of 2008 acquitting the opp. parties from the charges under Sections 147/148/452/427/323/324/302/149 of I.P.C.The accused had been charged under the above offences for committing mischief of house trespass , voluntarily causing simple hurt and causing simple hurt by means of dangerous weapons and for having committed the murder of Gayadhar Digal in prosecution of the common object being members of unlawful assembly .
4. The prosecution case in brief is that on 23.08.2008, there was an outbreak of communal riot in whole of the district of Kandhamal afer the death of Swami Laxmanananda Saraswati . As a sequel to the riot , people from the Hindu Community having attributed the liability of killing of the saint to the people of Christian community mounted attack in several villages including village Kasinipadar . On 26.8.2008 at 6 p.m., the rioters in a mob arrived with deadly weapon such as thenga, kati, tenta shouting slogan saying "JAI SRIRAM, BHARAT MATAKI JAI" and inciting themselves saying "AMA SWAMINJINKU TUME MARILA AME TUMAKU CHHADIBU NAHIN" forced their entry into the village, ransacked houses for which the people belonging to Christian community left their houses out of fear . Decased Gayadhar was also running away towards village Kasinipadar along with his wife , son and his elder brother Kalpa Digal . To his misfortune he was confronted with the rioters while he was at Page 2 of 12 village Uhadurga wherein the persons namely, Pradeep Kanhar and Netrananda Kanhar along with others together attempted to kill all of them . Brother of the deceased, namely, Kalpa managed to escape from their clutches but the deceased was trapped and was assaulted by means of knife and lathi (Medha) and he succumbed to his injuries at the spot. Wife and son of the deceased sustained bleeding injuries due to assault . A report lodged to that effect was treated as FIR by the police who registered P.S. Case No.85 of 2008. In course of investigation , the police examined witnesses , visited the spot and prepared spot map , held inquest, seized sample and blood stained earth and other incriminating articles , sent the injured P.Ws for medical examination and treatment , and the dead body for post mortem examination, obtained the reports , and submitted chargesheet after against the opposite parties keeping the investigation open .
5. The plea of the defence is one of complete denial and false implication .
6. The prosecution examined twelve witnesses to prove its case . P.W 1 Pabitra Digal is the cousin of the deceased . P.W.2 Kalpa Digal is the informant and the elder brother of the deceased . P.W 3 is Surendra Digal is brother of the deceased . P.W 4 Akrura Digal is a co villager . P.W 5 Kintu Digal is a co villager and witness to seizure . P.W 6 Krusika Thati is Page 3 of 12 a co villager . P.W 7 Raimati Digal is the wife of the deceased .P.W 8 Mishra Digal is a co villager . P.W 9 Baisnal @ Gayadhar Digal is the son of the deceased. P.Ws.10 Dr Jagdish Prasad Das conducted the postmortem examination over the deceased and P.W 11 Dr Chintamani Tripathy examined P.W 7 and 9 . P.W.12 Harihar Pradhan is the I.O.
P.W 7 and 9 are the wife and son of the deceased and the injured eyewitnesses . P.Ws 1, P.Ws.1, 2, 3, 4, 5, 6, 7 and 8 did not support the prosecution case
7. The learned Adhoc Addl. Sessions Judge, Fast Track Court No.2, Kandhamal, Phulbani after discussing the evidence on record and the materials available against the accused persons , acquitted the accused persons from the charges under section -235 ( 10 Cr.P.C by judgment dated 29.08.2009 .
8. The learned trial Court came to the findings that the death of the deceased was homicidal in course of riot by members of an unlawful assembly but the prosecution failed to prove beyond reasonable doubt that the accused Subhakanta , Bikram and Pradeep were members of the assembly and extended the benefit of doubt to them .It also held that prosecution had failed to bring any iota of evidence against accused Biratha Bagarty and found him not guilty .
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9. This application for leave to appeal has been filed challenging the said judgment of acquittal stating that the learned trial Court has taken a hyper technical view and the evidence of P.W 7 and 9 who are injured eyewitnesses have been ignored by the learned trial Court. He further submits that the evidence of P.W 9 who identified three of the accused in Court ought to have been accepted and the affidavit of P.W 7 explaining why she did not name the accused in Court and recalled her by exercising power under Sec- 311 Cr.P.C .
10. The learned counsel appearing for the accused persons submitted that when the accused persons have been acquitted after considering the evidence of the witnesses , the scope of granting leave in order to set aside the acquittal order is very slim for which the CRLLP should be dismissed .
11. The Hon'ble Supreme Court , time and again has held that while dealing with appeals against acquittal the Appellate Court would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived could not have been reached by any reasonable person so as to render the decision perverse . Merely because two views are possible, the court of appeal would not take a view contrary to the view of the Court below and substitute it with its own view .The Appellate Court , however has the power to re- appreciate the evidence if it finds that the view Page 5 of 12 arrived at by the court below is perverse and the court has ignored material evidence on record and committed a manifest error of law.
In the case of Ramesh Babulal Doshi v. State of Gujarat reported in (1996) 9 SCC 225, the Hon'ble Supreme Court has held :
"7. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. "
In case of State of Rajasthan v. Raja Ram, (2003) 8 SCC 180; it has held :
"7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the Page 6 of 12 order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re- appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. {See Bhagwan Singh v. State of M.P., (2002) 4 SCC 85}. The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana, (2000) 4 SCC 484."
In the case of State of Orissa vs Urmila Nayak: (2021) 81 OCR 619, this Court referring to the decisions of the Hon'ble Supreme Court in Ghurey Lal vs State of U.P.reported in (2008) 10 SCC 450 : ( 2010) Page 7 of 12 45 OCR (SC) 444 and M.G Agarawal vs State of Maharashtra : AIR 1963 SC 200 , we have held as follows :
" 6.. After taking into consideration the aforesaid two cases and several other authoritative pronouncements made by the Hon'ble Supreme Court, the Division Bench of the Hon'ble Supreme Court in the case of Ghurey Lal Vs. State of U.P.,(supra) has summarized the principles that emerged from the referred cases. They are:-
"(1) The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record.
It can review the trial court's conclusion with respect to both facts and law.
(2) The accused is presumed innocent until proven guilty.The accused possessed his presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
(3) Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witnesss credibility is at issue .it is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.
In the light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
(1) The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling Page 8 of 12 reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
(i) The trial court's conclusion with regard to the facts is palpably wrong;
(ii) The trial court's decision was based on an erroneous view of law;
(iii) The trial court's judgment is likely to result in "grave miscarriage of justice";
(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the Ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive. (2) The Appellate Court must always give proper weight and consideration to the findings of the trial court. (3) If two reasonable views can be reached, one that leads to acquittal, the other to conviction-the High courts/appellate courts must rule in favour of the accused."
7. No doubt the judgment rendered by the Hon'ble Supreme Court in Ghurey Lal Vs. State of U.P., (supra)'s case relates to final judgment of the appeal against acquittal, but we are of the opinion that those Considerations also should weigh in the mind of the Court while granting the leave to file appeal against acquittal. Page 9 of 12
However, while considering the desirability or otherwise of granting leave to appeal against acquittal, the appellate Court, at the first instance, is required to, prima facie, be satisfied about the existence of conditions that are required for overturning a judgment of acquittal to one of conviction While deciding a matter regarding grant of leave to appeal against acquittal, the Court must be satisfied, prima facie, that at the final hearing of the appeal 'very substantial and compelling reasons' can be shown, on the basis of which it will be most reasonable to overturn a judgment of acquittal. Only then the appellate court should grant the leave to appeal against acquittal."...
. 12. The case had been reserved for orders earlier , but as the trial court record was not available and we wanted to assess if the learned trial Court had ignored any admissible material evidence, the matter was listed for "to be Mentioned" on 27.09.2021 ,and the learned State Counsel had been directed to file copies of the depositions of the witnesses for our perusal . The depositions were filed and carefully perused by us .
13. Perusal of the depositions of P.Ws 1 to 7 reveals that they did not support the prosecution case for which they have been cross examined by the prosecution . It would therefore be unsafe to rely on their evidence .
P.W 9 has implicated the accused persons and has stated that Bhima Kanhar hacked his father on his head with kaati and stabbed him in the belly . Netrananda Kanhar assaulted him , his father and his mother with an iron rod for which they sustained bleeding injuries . Subhakanta Page 10 of 12 Kanhar whom he identified in Court incited the assailants and Bikram Kanhar (identified in Court ) assaulted him on his head . Pradeep Kanhar passed by but did not do anything and Subhakanta tried to assault him but he escaped. He has admitted in cross examination that he has not stated the name of Netrananda who had assaulted him and had not named Subhakanta and Bhima before the police and had not stated that Subhakanta incited others and tried to assault him or that Bikram assaulted him on his head. He has explained that he was not then in a state of mind to recall their names . The omissions have been confirmed during cross examination of P.W 12 the I.O .
14. We have carefully examined the impugned judgement . The learned trial Court has observed that P.W 7 has clarified that the accused persons were not amongst the mob which assaulted them . While assessing the evidence of P.W 9 , the learned trial Court has found that there is nothing in his evidence to establish previous acquaintance and P.W 9 has not stated anywhere that he could identify the accused persons nor had he given their description of these accused or their names. He therefore did not accept their identification for the first time during trial in the absence of a T.I. parade after their arrest. It also held that though the evidence that P.W 7 and 9 sustained injuries is established but the accused persons Page 11 of 12 cannot be attributed criminal liability in view of the nature of evidence regarding their identity .
In the present case , evidence of P.W 9 is the sole eye witness to the occurrence . His evidence does not find corroboration as other witnesses including his mother do not implicate the accused persons .The weapons of offence have admittedly not been seized .
15. After careful examination of the impugned judgement and the evidence on record and keeping in mind the decisions of the Hon'ble Supreme Court and this Court , we do not prima facie find any "
substantial and compelling reasons" for interference in the impugned judgment . We prima facie find that the learned trial court has not ignored any material admissible evidence or that the view taken by it is in any way perverse. Hence we are satisfied that there this is not a fit case to grant leave to appeal against the order of acquittal . The CRLLP being devoid of merit is accordingly dismissed .
(Savitri Ratho) Judge I agree ( S.K.Mishra) Judge Bichi Page 12 of 12