Orissa High Court
7 16.12.2020. State Of Orissa vs Urmila Nayak on 16 December, 2020
Equivalent citations: AIRONLINE 2020 ORI 235
Author: S.K.Mishra
Bench: S.K.Mishra
CRLLP N0.103 of 2015
7 16.12.2020. State of Orissa ..... Appellant/Petitioner
Vs.
Urmila Nayak ..... Respondents/opp. parties
For the appellant : Addl. Standing Counsel
For the respondents: M/s.Basanta Ku.Das
and four others.
............
This is an application under Section 378 (4) of the
Code of Criminal Procedure, 1973, hereinafter referred as 'the
Code', for brevity, for grant of leave to appeal against the
acquittal rendered by the learned Addl. Sessions Judge,
Balasore in S.T. Case No.143/369 of 2013-2009 arising out
of C.T. Case No.822 of 2009 of the court of learned S.D.J.M.,
Balasore corresponding to Singla P.S. Case No.72/2009. The
judgment was delivered on 26.11.2014.
2. The learned Addl. Standing Counsel for the State argued
that the learned 2nd Addl. Sessions Judge committed error of
record in not holding that the case of the prosecution has
been proved beyond all reasonable doubts. The learned Addl.
Standing Counsel also argued on the different aspects of
appreciation of evidence by the learned Sessions Judge and
submitted that this is a case where leave to appeal against
acquittal should be granted.
AKB
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3. On the other hand, Mr. Basanta Kumar Das, learned
counsel, on behalf of respondents nos.1 and 2 submits that
the considerations that guide the appellate court in an appeal
against acquittal are not the same as the considerations that
guide the judicial course in case of appeal against conviction.
It is the submission of the learned counsel for the
respondents that this case does not fit within the parameters
that the Court should look into in a case of appeal against
acquittal, hence he urges the Court to dismiss the leave
application.
4. At the outset, we take note of the reported case of
Ghurey Lal Vs. State of U.P.; (2008) 10 SCC 450, wherein
the Hon'ble Supreme Court has taken into consideration the
very earliest case of appeal against acquittal in the reported
case of Sheo Swarup V. King Emperor; AIR 1934 Privy
Council page 230. The scope and ambit of the appellate court
in dealing with an appeal against acquittal has been
elucidated by Lord Russel. Writing the judgment, Lord
Russel has observed as follows:-
"..the High Court should and will always give
proper weight and consideration to such matters
as (1) the views of the trial Judge as to the
credibility of the witnesses, (2) the presumption of
innocence in favour of the accused, a presumption
certainly not weakened by the fact that he has
been acquitted at his trial, (3) the right of the
accused to the benefit of any doubt, and (4) the
slowness of an appellate court in disturbing a
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finding of fact arrived at by a Judge who had the
advantage of seeing the witness.."
5. In the reported case of Ghurey Lal Vs. State of
U.P.(supra), the constitution Bench Judgment rendered by
the Hon'ble Supreme Court in the case of M.G. Agrawal V.
State of Maharashtra; AIR 1963 SC 200 was taken into
consideration. In that case, the Hon'ble Supreme Court has
laid down the following principles. We find it appropriate to
quote the same;
"There is no doubt that the power conferred by
clause (a) which deals with an appeal against an
order of acquittal is as wide as the power conferred
by clause (b) which deals with an appeal against an
order of conviction, and so, it is obvious that the
High Court's powers in dealing with criminal
appeals are equally wide whether the appeal in
question is one against acquittal or against
conviction. That is one aspect of the question. The
other aspect of the question centers round the
approach which the High Court adopts in dealing
with appeals against orders of acquittal. In dealing
with such appeals, the High Court naturally bears
in mind the presumption of innocence in favour of
an accused persons and cannot lose sight of the
fact that the said presumption is strengthened by
the order of acquittal passed in his favour by the
trial Court and so, the fact that the accused person
is entitled for the benefit of a reasonable doubt will
always be present in the mind of the High Court
when it deals with the merits of the case. As an
appellate court the High Court is generally slow in
disturbing the finding of fact recorded by the trial
Court, particularly when the said finding is based
on an appreciation of oral evidence because the
trial Court has the advantage of watching the
demeanour of the witnesses who have given
evidence. Thus, though the powers of the High
Court in dealing with an appeal against acquittal
are as wide as those which it has in dealing with
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an appeal against conviction, in dealing with the
former class of appeals, its approach is governed by
the overriding consideration flowing from the
presumption of innocence....
The test suggested by the expression
"substantial and compelling reasons" should not be
construed as a formula which has to be rigidly
applied in every case, and so, it is not necessary
that before reversing a judgment of acquittal, the
High Court must necessarily characterize the
findings recorded therein as perverse.
The question which the Supreme Court has to
ask itself, in appeals against conviction by the High
Court in such a case, is whether on the material
produced by the prosecution, the High Court was
justified in reaching the conclusion that the
prosecution case against the appellants had been
proved beyond a reasonable doubt, and that the
contrary view taken by the trial court was
erroneous. In answering this question, the Supreme
Court would, no doubt, consider the salient and
broad features of the evidence in order to
appreciate the grievance made by the appellants
against the conclusions of the High Court."
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
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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 witness' 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 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
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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. 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.
8. In this case, we carefully examined the judgment
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rendered by the learned 2nd Addl. Sessions Judge. He has
enumerated the following circumstances, in addition to the
homicidal nature of death of the deceased, to have been
relied upon by the prosecution to prove its case;
(i) There was inimical term between the
accused Urmila Nayak and the family members of
P.W.7 Akhaya Kumar Nayak and as such the
accused persons had a motive to kill the deceased
Sonu,
(ii) The accused Urmila Nayak had threatened
P.W.7 Akhaya Kumar Nayak and his wife P.W.12
Binati Nayak to wife out their entire family,
(iii) At about 4 P.M. of the occurrence day i.e.
at about 4 P.M. of 24.4.2009 the accused Urmila
Nayak had offered some palm kernel to the deceased
Sonu and had asked him to come to her house in
the evening hour,
(iv) Again in the evening hour of that day i.e.
in the evening hour of 24.4.2009 the deceased Sonu
went to the house of one of his friends P.W.10
Rudranarayan Das, called him to go to the house of
the accused Urmila Nayak to bring palm kernel
further and without waiting for him proceeded to the
house of the accused Urmila Nayak and found
missing thereafter; and
(v) The conduct of the accused persons after
the death of the deceased Sonu.
9. The learned 2nd Sessions Judge has come to the
conclusion that the circumstance no.1 i.e. prior enmity
between the opposite parties and the father of the deceased
appears to be substantiated beyond reasonable doubt by the
prosecution.
As far as the second circumstance is concerned, the
learned 2nd Addl. Sessions Judge has not given any specific
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finding, but the nature of the language used by him appears
that he had accepted that there was some kind of inimical
relationship between the two opposite parties-Urmila Nayak
and Ajaya Nayak.
As far as the 3rd circumstance is concerned, the
circumstance has been accepted by the learned 2nd Addl.
Sessions Judge to be established beyond reasonable doubt by
the prosecution.
As far as the 4th circumstance is concerned, the same
has also been accepted by the learned 2nd Addl. Sessions
Judge to have been proved by the prosecution. The
prosecution has established that the conduct the opposite
parties-accused in not going to see the dead body of the
deceased can be considered as incriminating circumstance
against them and that the same has been clearly proved by
the prosecution.
10. The learned 2nd Addl. Sessions Judge after taking into
consideration all the circumstances established by the
prosecution at the stage of trial came to the conclusion that
all these circumstances highlighted and proved by the
prosecution do not form a complete chain of circumstances
which ruled out the possibility of any other persons being the
assailant or unerringly points to the accused persons as
being guilty of the murder of the deceased Sonu. The learned
2nd Addl. Sessions Judge further held that at best the same
may raise a suspicion that in all probabilities the accused
persons are guilty of the offence. But such suspicion cannot
take the place of legal proof and the benefit of doubt will
definitely go to the accused persons.
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11. Thus, it is apparent from the record that there appears
to be no perversion in the recording of the findings. So it
cannot be said that the conclusion with regard to the facts by
the learned 2nd Addl. Sessions Judge is palpably wrong. It
cannot also be said that the trial court's decision was based
on erroneous view of the law. We are not persuaded to come
to the conclusion that the trial court's judgment is likely to
result in "grave miscarriage of justice."
The entire approach of the trial court in dealing with the
evidence was not patently illegal. The judgment is not
manifestly unjust and unreasonable and the trial court has
not ignored the evidence or misread the material evidence or
have ignored the material documents available in this case. It
may be noted that there is no dying declaration or report of
the ballistic expert, in this case. Moreover, the appellate court
must always give proper weight and consideration to the
findings of the trial court. If two reasonable views are
possible, one that leads to acquittal and the other to
conviction, the appellate court must rule in favour of the
accused.
12. Keeping in view the aforesaid considerations, we are of
the considered opinion that there is no prima facie,
'substantial and compelling reasons', to come to the
conclusion that the mater should be heard, the impugned
judgment should be re-examined or examined by the
appellate court in appeal against acquittal. In that view of the
matter, we are of the opinion that there is no merit in the
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application for leave to appeal against acquittal.
Hence, the leave is not granted and the CRLLP is
dismissed.
..........................
S.K.Mishra,J.
.............................. Savitri Ratho,J.
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