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Kirtan Das and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 574 of 1966
Judge
Reported inAIR1969Ori36; 1969CriLJ397
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 237, 238, 367 and 439; Indian Penal Code (IPC) - Sections 148, 149, 323, 324, 426 and 352
AppellantKirtan Das and anr.
RespondentState
Appellant AdvocateR.N. Misra, ;R.C. Patnaik, ;R.K. Mohanty and ;P.K. Sengupta, Advs.
Respondent AdvocateR.K. Patra, Standing Counsel
Cases ReferredUgar Ahir v. State of Bihar
Excerpt:
.....co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - and having done that they believed only that part of the prosecution case which they found to have been proved on acceptable and reliable evidence......acts of assault, violence of grievous nature, rioting, mischief etc. against them. as both the courts below disbelieved most part of the prosecution case as presented, mr. patnaik contended, that it was not for the courts below to have made out a case, even though of a minor nature against the petitioners and to have convicted them for the same. in support of his above contention, he placed reliance on a decision reported in ugar ahir v. state of bihar, air 1965 sc 277.5. in this case cited above, it was found as a matter of fact that the learned additional sessions judge having disbelieved a major part of the prosecution case as presented, evolved a new case of his own speculation and convicted the appellants on such fact under section 304, i.p.c. the finding of their lordships of.....
Judgment:
ORDER

S. Acharya, J.

1. This is a revision against the appellate judgment of Sri L. Panda, Sessions Judge, Cuttack maintaining the conviction of the petitioners Nos. 1 and 2 under Sections 323 and 352, I.P.C., respectively, and the sentence of fine of Es, 150 and Rs. 60 imposed respectively on them by a First Class Magistrate, Jaipur.

2. The prosecution case, in short, Is that at about 6 O'clock in the evening on 27-11-1963 the petitioners along with a few others being armed with lathis went to the house of the complainant Baidhar Das (P.W. 1), and entered into his house by forcing open the door, and removed therefrom paddy, rice and utensils etc.; and thereafter assaulted P.Ws. 2 and 3, the sister and mother respectively of P.W. 1 who were concealing themselves inside the house out of fear. Charge sheet was submitted against these petitioners and some others for offences under Sections 148, 149, 323, 324 and 426, I. P. C. As there was no evidence against the other accused persons, they were acquitted, but petitioners Nos. 1 and 2 were found guilty only under Sections 323 and 352 respectively, mostly on the evidence of P.Ws. 1, 2 and 3.

3. The petitioners' defence was a total denial of the occurrence and they stated that the police officers, who were in the village a few hours before the alleged occurrence for enquiring into another case, had assaulted and injured these petitioners, and in order to shield themselves from any liability they concocted this false case against them.

4. Mr. R. C. Patnaik, the learned counsel for the petitioners contended that in this case, the court below having disbelieved the major part of the prosecution story, should have held that the substraturn of the prosecution case has disappeared, and as such there was nothing on which the petitioners could have been convicted. According to him, the prosecution presented before the Police, and also before the Court, a case of grave and serious nature against the petitioners and some others, alleging acts of assault, violence of grievous nature, rioting, mischief etc. against them. As both the courts below disbelieved most part of the prosecution case as presented, Mr. Patnaik contended, that it was not for the courts below to have made out a case, even though of a minor nature against the petitioners and to have convicted them for the same. In support of his above contention, he placed reliance on a decision reported in Ugar Ahir v. State of Bihar, AIR 1965 SC 277.

5. In this case cited above, it was found as a matter of fact that the learned Additional Sessions Judge having disbelieved a major part of the prosecution case as presented, evolved a new case of his own speculation and convicted the appellants on such fact under Section 304, I.P.C. The finding of their Lordships of the Supreme Court in the above case is as follows:

'The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.'

In the case cited above, both the courts below practically disbelieved the whole version given by the witnesses in regard to the prosecution case, and so it was held by their Lordships of the Supreme Court that if all that was disbelieved, nothing actually remained, and as such the courts instead of removing the chaff out of grain, removed the grain and accepted the chaff. Such are not the facts in this case. In this case, there may be some exaggerations and embroideries, but all the same, it has been established from the evidence on record that both P.Ws. 2 and 3 were dragged out of the place of concealment and were assaulted by the petitioners Nos. 1 and 2 causing various injuries on their person. This part of the occurrence formed a part of the charge framed against the petitioners and has been believed by both the courts below, relying on the evidence of the above injured females (P.Ws. 2 and 3). P.W. 1 also corroborated P.Ws. 2 and 3 to the extent that he saw P.Ws. 2 and 3 being dragged out from their place of concealment, and he heard them crying when they were being assaulted. The injuries sustained by P.Ws. 2 and 3 were proved to the satisfaction of the courts below by the evidence of P.W. 4, the Medical Officer. The case of assault which the prosecution wanted to prove was somewhat of a serious nature, but the courts, on the evidence of P.Ws. 1, 2 and 3 and on the doctor's evidence supported by his injury report, came to a finding that instead of committing the graver offence, they have committed the lesser offence. The Courts, therefore, have done their duty in a justified manner to scrutinise the evidence carefully in order to separate the grain from the chaff; and having done that they believed only that part of the prosecution case which they found to have been proved on acceptable and reliable evidence. That being so, it cannot be said in this case that the substratum of the prosecution case has been disbelieved, and that the petitioners have been convicted on a reconstructed story made out by the courts below.

The decision cited above goes also against the above mentioned contention of the learned counsel of the petitioners, inasmuch as it states that it is neither a sound rule of law nor a rule of practice that if a prosecution case is false in one thing, it is false in every thing. Therefore, the above contention of the learned counsel for the petitioners is fallacious and is not acceptable as such.

6. The reasons given by the courts below, for placing reliance on the prosecution witnesses and in accepting the prosecution case as proved against the petitioners, are convincing and I do not find any compelling reasons to differ from the concurrent finding of fact of the courts below, and as such the conviction of the petitioners as stated above is hereby maintained. As the sentence of fine against both the petitioners appear to me to be somewhat excessive, I would reduce the sentence of fine of petitioner No. 1 from Rs. 150 to Rs. 100 and that of petitioner No. 2 from Rs. 60 to Rs. 40. With this modification in the sentence, the revision is dismissed.


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