Orissa High Court
Laxminarayan Panigrahi vs Kishoremohan Mohapatra on 11 February, 2021
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRIMINAL APPEAL No.220 of 1990
From the judgment and order dated 03.02.1990 passed by
J.M.F.C., Balasore in I.C.C. Case No.309 of 1988.
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Laxminarayan Panigrahi ....... Appellant
-Versus-
Kishoremohan Mohapatra
and others ....... Respondents
For Appellant: - Mr. Rajeet Roy
(Amicus Curiae)
For Respondents: - None
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 11.02.2021
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S. K. Sahoo, J. The matter is taken up through Video Conferencing.
2. This appeal has been preferred by the appellant
Laxminarayan Panigrahi challenging the impugned judgment and
order dated 03.02.1990 passed by the learned J.M.F.C., Balasore
in I.C.C. Case No.309 of 1988 in acquitting the respondents
Kishoremohan Mohapatra, Manoj Kumar @ Manu Mohapatra and
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Saroj Kumar @ Ninu Mohapatra of the charges under sections
447, 427, 379, 323 read with section 34 of the Indian Penal
Code. The appellant preferred an application under section
378(4) of Cr.P.C. seeking for special leave to appeal from the
order of acquittal which was granted in Criminal Misc. Case
No.298 of 1990 as per order dated 27.08.1990 and accordingly,
the present appeal was filed.
3. The prosecution case, in short, is that the appellant
is the complainant in the said complaint petition and he
presented the complaint petition on 31.10.1988 before the
learned S.D.J.M., Balesore on the accusation that on 12.10.1988
at about 11.00 a.m., the respondents being armed with deadly
weapons such as axe, lathi, katuri, sickle and sword entered into
his land which appertains to Khata No.97, Plot No.529 at Mouza-
Ghoadapada having an area of Ac.0.06 decimals and cut about
fifty cubits of dry and green fence from the said land and they
also cut and removed some trees which were also standing on
the boundary of the said plot. The appellant raised protest but
the respondents abused him in filthy language and then the
respondents also assaulted the appellant for which he sustained
injuries. When the witnesses came to the spot and raised protest
against the conduct of the respondents, they fled away.
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4. After the presentation of the complaint petition, the
initial statement of the complainant was recorded and finding
prima facie case, the learned S.D.J.M., Balesore took cognizance
of offences under sections 447, 427, 379 and 323 of the Indian
Penal Code and process was issued against the respondents.
After the appearance of the respondents, they were directed to
be released on bail and the case was transferred to the Court of
J.M.F.C., Balasore for disposal in accordance with law. Two
witnesses were examined before charge and then charge was
framed against the respondents under sections 447, 427, 379,
323 read with section 34 of the Indian Penal Code.
5. The defence plea of the respondents was one of
denial.
6. In order to establish the charge, the appellant
examined four witnesses including himself as P.W.1. P.W.2
Laxman Mohanty and P.W.3 Narendra Khuntia are the
independent witnesses to the occurrence and P.W.4 Dr. Jayanta
Kumar Das medically examined the appellant and noticed two
bruises which were opined to be simple in nature and he proved
his report.
Apart from the oral evidence, the appellant in order
to establish the ownership over the land in question proved
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Ext.1, the R.O.R. which indicated that the land stood recorded in
the name of the sons of the appellant. He also proved the rent
receipts vide Ext.2 to Ext.2/3. The injury report of the appellant
has been marked as Ext.3.
7. The learned trial Court after analysing the evidence
on record came to hold that the prosecution has failed to
establish the charges and accordingly, acquitted the respondents
of all the charges.
8. Since nobody appeared on behalf of the appellant to
argue the appeal on 10.12.2020 and it is a thirty years old
appeal, Mr. Rajeet Roy, Advocate was appointed as Amicus
Curiae. He was supplied with the paper book and given time to
prepare the case. He placed the evidence of the witnesses and
also the impugned judgment. While assailing the impugned
judgment and order of acquittal, he argued that the finding of
the learned trial Court is based on conjectures and the evidence
of P.Ws.2 and 3, who were natural witnesses have been
disbelieved without any cogent reason. He further argued that
the evidence of those two witnesses corroborates the version of
the complainant and they stood the test of cross-examination
and therefore, the learned trial Court should not have held that
the prosecution failed to establish the charges against the
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respondents. He placed reliance on the judgments of the Hon'ble
Supreme Court in the cases of Chandrappa and others -Vrs.-
State of Karnataka reported in (2007)4 Supreme Court
Cases 415 and Rana Pratap and others -Vrs.- State of
Haryana reported in (1983)3 Supreme Court Cases 327.
9. None appears on behalf of the respondents.
10. Perused the complaint petition, the evidence adduced
by the appellant and also the impugned judgment meticulously
and carefully.
In the case of Chandrappa (supra) while reiterating
the principle relating to the power of the appellate Court in
dealing with the appeal against an order of acquittal, it has been
held as follows:
"(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
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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 views are possible on the
basis of evidence on record and one favourable
to the accused has been taken by the trial Court,
it ought not to be disturbed by the appellate
Court."
Keeping the above cardinal principle in mind, let me
analyze the evidence on record to find out as to whether the
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conclusions drawn by the trial Court is perverse and against
weight of evidence or not, whether the view taken is reasonable
and plausible or not, whether the findings of the trial Court is
palpably wrong, manifestly erroneous or not. This Court is indeed
quite conscious of the fact that there is no limitation on the part
of an appellate Court to review the entire evidence upon which
the order of acquittal has been passed and to come to its own
conclusion and review the trial Court's conclusion on both facts as
well as law, but unless this Court is satisfied that there has been
flagrant miscarriage of justice by pronouncing the order of
acquittal substantially and compelling reasons are there to
interfere with the conclusions arrived at by the trial Court, the
finding of the acquittal cannot be disturbed or interfered with.
11. While dealing with the charge under section 447 of
the Indian Penal Code, the learned trial Court has been pleased
to observe that there is no evidence that the respondents
trespassed into the land of the appellant and it is the prosecution
case that the fence was cut and trees were standing at a
distance of six feet away from the fence and therefore, the
learned trial Court held that even without entering inside the bari
of P.W.1, it was possible to cut the trees.
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Section 447 of the Indian Penal Code deals with
punishment for 'criminal trespass' and 'criminal trespass' is
defined under section 441 of the Indian Penal Code. Every
trespass by itself is not criminal. The ingredients of the offence
of criminal trespass will be attracted, if someone enters into or
upon property in possession of another with intent to commit an
offence or to intimidate, insult or annoy any person in possession
of such property. It will also be attracted, if someone after
entering into or upon such property lawfully remains there
unlawfully with intent thereby to intimidate, insult or annoy any
such person or with intent to commit an offence. The offence is
complete as soon as there is unlawful entry and it falls within
section 441 of the Indian Penal Code. Therefore, first there must
be clinching material on record that the respondents entered into
or upon the property which was in possession of P.W.1. P.W.1
stated that the bari of the respondents was adjoining to his
house in the south and the middle fence is the disputed fence.
He further stated that the dispute was for fence and trees and
the trees were not in fence but those were six feet away from
the fence. He further stated that the respondents wanted to
purchase the land in question prior to one month of his
purchase. Thus from the evidence of P.W.1, it appears that there
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was scramble for possession of land between the parties. There
is no material on record as to where exactly the fence was put
and who put up the fence and where the trees were standing.
There is also no clear evidence that the respondents entered into
the land which was in possession of the appellant and then cut
the fence as well as the trees. In absence of any such evidence,
it is very difficult to arrive at a conclusion that the ingredients of
the offence under section 447 of the Indian Penal Code are
attracted and therefore, the findings of the learned trial Court on
this score cannot be said to be perverse.
12. Coming to the offence under section 427 of the
Indian Penal Code, it is required to be proved that the
respondents committed 'mischief' as defined under section 425
of the Indian Penal Code. The essential ingredients of 'mischief'
as defined in section 425 of the Indian Penal Code are that there
must be intention to cause or knowledge of likelihood of causing
wrongful loss or damage to the public or to any person in
destroying the property in question or causing such change in
the property or in the situation thereof as destroying or
diminishing its value or utility or affecting it injuriously. Mischief
involves mental act with a destructive animus. Destruction with
object of creating wrongful loss or damage is obligatory to be
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established. Except the vague statements of P.W.1 and other
witnesses that the respondents cut the fence and some trees,
there are no other materials to attract the ingredients of the
offence of mischief. In case of police investigation, the spot visit
note and report of the Amin apart from the documents proved by
the appellant would have made the task of the Court easier to
find out culpability of the respondents, which is not the case
here. Thus the learned trial Court rightly disbelieved the charge
under section 427 of the Indian Penal Code.
13. The learned trial Court while dealing with the charge
under section 379 of the Indian Penal Code has been pleased to
hold that the sons of the appellant were the owners of the land
and the appellant was in possession of the same. At this
juncture, it would be profitable to refer to some of the decisions
of this Court.
The offence of theft consists in the dishonest taking
of any moveable property from out of possession of another
without his consent. Dishonest intention exists when the person
so taking the property intends to cause wrongful gain to himself
or wrongful loss to the other. It is true that an act does not
amount to theft unless there be not only no legal right but no
appearance or colour of a legal right and bona fide claim of right
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is always a good defence to a prosecution for theft. (Ref: Uma
Charan Chand -Vrs.- Charan Das reported in Vol.35(1969)
Cuttack Law Times 186). An offence of theft is committed
when a person removes moveable property of another person
without his consent dishonestly. An act is said to have been done
dishonestly, if it is done with a view to cause wrongful loss to the
other person or wrongful gain to oneself. (Ref: Hadubandhu
Singh -Vrs.- Sudhkar Paikara reported in Vol.36(1970)
Cuttack Law Times 469). The offence of theft consists in the
dishonest removal of moveable property without the consent of
the owner. Dishonest removal means anything done to cause
wrongful gain or wrongful loss. (Ref: Jadu Bal -Vrs.- The State
reported in Vol.20(1954) Cuttack Law Times 544).
In view of ratio laid down in the aforesaid decisions,
when there are no material on record over which particular plot
of land, the fence and trees were standing and that the
respondent was in lawful possession of the same, mere removal
would not attract the offence under section 379 of the Indian
Penal Code.
14. The learned trial Court while discussing the charge
under section 323 of the Indian Penal Code has been pleased to
hold that the injury report (Ext.3) proved from the side of the
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appellant is a corroborative piece of evidence to the statement of
the appellant. However, after disbelieving the evidence of P.W.2
and P.W.3 mainly on the ground that they are chance witnesses
and their presence at the place of occurrence at the relevant
point of time is doubtful, the learned trial Court further held that
the prosecution did not like to examine the nearby neighbours
when they were present at the spot and non-examination of the
material witnesses cast a great deal of doubt to the prosecution
case. In the case of Rana Pratap (supra), the Hon'ble Supreme
Court has been pleased to hold that the evidence of the chance
witnesses cannot be discarded or viewed with suspicion. The
learned trial Court rightly did not find it safe to accept the
evidence of the solitary witness like P.W.1 to convict the
respondents under section 323 of the Indian Penal Code.
15. It is needless to say that the occurrence allegedly
took place on 12.10.1988 and the complaint petition was filed on
31.10.1988 which was after a gap of nineteen days. The
appellant has not given any reasonable explanation for the delay
in filing the complaint petition. He merely stated that the delay
occurred as the Court was closed due to Durga Puja and that on
the reopening day, the case was filed. There is no evidence on
record as to when the Durga Puja vacation commenced in the
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relevant year and when the Court was reopened. No cogent
explanation has been offered as to why P.W.1 did not go to the
police station to lodge the first information report. He merely
stated in his evidence that the police personnel were not taking
the case for which he did not go to police station. It is not a case
where the appellant approached the police to lodge the F.I.R. but
they did not take any action.
In the case of Patra Mirgan -Vrs.- State reported
in 1994(2) Crimes 613 (Orissa), it is held that in criminal
trial, one of the cardinal principles for the Court is to look for
plausible explanation for the delay in lodging the report. It is for
the reason that delay affords opportunity to the complainant to
make deliberation upon the complaint and to make
embellishment or even make fabrications. Delay defeats the
chance of the unsoiled and untarnished version of the case to be
made before the Court at the earliest instance. That is why if
there is delay in either coming before the police or before the
Court, the courts always view the allegations with suspicion and
look for satisfactory explanation. If no such satisfaction is
formed, the delay is treated as fatal to the prosecution case.
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Therefore, the explanation offered by the appellant in
filing the complaint petition after nineteen days of the alleged
occurrence is not acceptable.
16. In view of the foregoing discussions, I am of the
humble view that the impugned judgment and order of acquittal
passed by the learned trial Court does not suffer from any
infirmity or illegality. There is no flaw in the approach of the
learned trial Court in acquitting the respondents of all the
charges. The conclusions drawn by the trial Court is neither
perverse nor against weight of evidence. The view taken by the
trial Court is quite reasonable and plausible. It cannot be lost
sight of the fact that there is background of the civil dispute
between the parties and the offences are not that serious in
nature. The occurrence allegedly took place in the year 1988 and
the order of acquittal was passed in the year 1990 and in the
mean time, more than three decades have passed. The parties
seem to have lost interest in the case for which no one appeared
on the last date when the Amicus Curiae was appointed and
today also no one appeared for the respondents.
In the result, the criminal appeal being devoid of
merit stands dismissed.
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The hearing fees is assessed to Rs.5,000/- (rupees
five thousand) in toto and the same be paid to the learned
Amicus Curiae immediately.
..............................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 11th February 2021/RKMishra