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Dondapani Samanta Rai Vs. Duryodhan Pradhan and ors. - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 306 of 1966
Reported inAIR1968Ori167; 1968CriLJ1190
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 154, 162 and 439; Evidence Act, 1872 - Sections 145 and 167
AppellantDondapani Samanta Rai
RespondentDuryodhan Pradhan and ors.
Appellant AdvocateN.V. Ramdas, ;K.V. Sharma and ;N.B.K. Murty, Advs.
Respondent AdvocateY.S.N. Murty, Adv.
DispositionRevision dismissed
Cases ReferredTahsildar Singh v. State of
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....orderg.k. misra, j.1. this revision is directed against an order of acquittal passed by the learned sessions judge of ganiam in appeal. the respondents were convicted by the learned trial magistrate under section 147 i. p. c. and each of them was sentenced to pay a fine of rs. 100/- in default, to undergo r. i for one month each. they were also convicted under sections 324 and 325 read with section 149 i p. c and each of them was sentenced to undergo r. i. for three months under each count the sentences were tc run concurrently2. the prosecution case may be stated in brief at about 4 p m., on the 24th january 1964. the suearcane crop of dandapani samanta rai (p. w. 3) was damaged by a pair of buffaloes belonging to sania bhuyan (respdt. 11). the buffaloes were tied to be taken to the.....

G.K. Misra, J.

1. This revision is directed against an order of acquittal passed by the learned Sessions Judge of Ganiam in appeal. The respondents were convicted by the learned Trial Magistrate under Section 147 I. P. C. and each of them was sentenced to pay a fine of Rs. 100/- in default, to undergo R. I for one month each. They were also convicted under Sections 324 and 325 read with Section 149 I P. C and each of them was sentenced to undergo R. I. for three months under each count The sentences were tc run concurrently

2. The prosecution case may be stated in brief At about 4 p m., on the 24th January 1964. the suearcane crop of Dandapani Samanta Rai (P. W. 3) was damaged by a pair of buffaloes belonging to Sania Bhuyan (Respdt. 11). The buffaloes were tied to be taken to the pound. It resulted in a quarrel between P. W. 4 son of P. W. 3 and Duryodhan Padhan (Respdt. 1). P. W. 3 intervened. At the bidding of Duryodhan all the other accused who were his party-men came armed with lathis. Accused Gantayat Biswal (Respdt. 5) came with a Kati (a sharp cutting weapon). They assaulted P. Ws 3, 8 and 9. P. W 3 lodged the F. I. R. (Ex. 5) immediately after Duryodhan and Bada Raghunath Bhuyan (Respdt. 2) took the plea that while they were passing on the way, they were assaulted by the members of the party of P. W 3. Other accused took a plea of complete denial.

3. The learned Sessions Judge after a thorough examination of the relevant evidence came to hold that the prosecution witnesses were interested and untrustworthy and that the prosecution was guilty of suppression of material facts, in consequence whereof, it was difficult to say as to which version was true.

4. The scope of power of this Court in exercise of revisional jurisdiction against an order of acquittal has been stated in 32 Cut LT 1053 Padasa v. Kusa. In paragraph 6. the following observation was made:

'It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. Some instances were, however, indicated where the High Court would be justified in interfering in revision with a finding of acquittal. Those instances are :--

(i) Where the trial Court has no jurisdiction to try case, but yet acquitted the accused;

(ii) Where the trial Court wrongly shut out evidence which the prosecution wanted to adduce;

(iiil Where inadmissible evidence was admitted:

(iv) Where material evidence has been overlooked by any Court, and

(v) where the acquittal is based on compounding of the offence, which is invalid under the law.

The illustrations given above are not exhaustive.'

It was further observed in that case that the High Court has no jurisdiction to interfere with an order of acquittal on a detailed discussion of the evidence where 3 different view of the matter is possible.

5. Mr. Ramdas was confronted with the difficulty of the limited scope of the jurisdiction of this Court. He confined his argument to the rule that inadmissible evidence was admitted by the learned lower appellate Court He brought to my notice one salient defect in the judgment that the evidence of different prosecution witnesses was subjected to comment by the learned Sessions Judge with refer-enc to the contradiction and omissions inthe F.I.R. (Ex. 5). It is well settled that the F.I.R. is not a piece of substantive evidence and can be used only against the maker thereof either for the purpose of contradiction or corroboration. The learned Sessions Judge was wrong in discarding the evidence of some of the witnesses on occount of omission or contradiction in the F.I.R.

6. P.Ws. 3 to 9 are the eye-witnesses to the occurrence. P.W, 3 is the injured and the informant. P.Ws 4, 5, 7 and 8 have been held to be interested by both the courts below. Mr Ramdas has not placed any reliance on their evidence. P.Ws.'6 and 9 were held to be disinterested witnesses by the learned trial court. They were, however, discarded by the learned lower appellate court as interested and untrustworthy. Mr. Ramdas accordingly pinpointed his argument and contended that the evidence of P.Ws. 6 and 9 should not have been discarded. He, however, conceded that the learned Sessions Judge did not use the F.I.R. for contradicting the evidence of these two witnesses. Thus the contention that the inadmissible evidence was admitted has no application to the case of these two witnesses.

7. The learned Sessions Judge did not believe P.W fi for some of the following reasons:

According to the doctor's evidence, P.W. 3 had a sharp cutting injury on his head capable of being caused by a Kati. P.W. 6 deposed in court that accused No. 2 gave this Kati blow on the head of P.W. 3. He did not, however, make such a statement before the police. Mr. Ramdas contended that this is not a contradiction but a mere omission. The contention is not correct. The majority view in Tahsildar Singh v. State of U P. AIR 1959 SC 1012 is against such a contention It is a material omission amounting to a contradiction though every omission is not a contradiction. P.W. 6 also deposed that accused No. 10 gave a lathi blow on the back of P.W. 3. The doctor (P.W. 11) did not find any injury on the back of P.W. 3. It was suggested to him that he was cultivating a land of P.W. 3 on bhag tenancy. Though he denied the suggestion, he admitted that he calls P.W 3 a 'Sahukar' Both D.Ws. 1 and 2 deposed that P.W. 6 was a tenant of P.W. 3 That evidence was not challenged by any cross-examination. P W 3 had stated in his cross-examination that no other ,erson was present near the place of occurrence when he was assaulted For all these reasons, it is difficult for the Court of revision to say that the learned Sessions Judge should not have taken such a view.

8. P. W. 9 was also disbelieved by the learned Sessions Judge. He did not name accused Nos. 3 and 9 before the police to have taken part in the assault He implicated them in court This amounts to a clear contradiction and the very illustrationgiven in Tahsildar Singh's case directly applies. In cross-examination, he was unable to say if accused Nos. 9 and 10 were assaulted at the time of occurrence. Accused No. 9 received 4 iniuries and accused No. 10 received 7 injuries during the scuffle, If for the aforesaid reasons, a final court of fact considered P.W. 9 as not a witness of truth, it is difficult for a court of revision to record a contrary conclusion.

9. Thus, as already stated, P.Ws. 3, 4, 5, 7 and 8 were not accepted by both the courts and P. Ws 6 and 9 were not accepted by the learned appellate court on assessment of evidence which cannot be said to be unreasonable or which could not have been taken at all. If all the eye-witnesses are thus disbelieved and the large number of injuries on accused Nos. 9 and 10 were not satisfactorily explained, it is not possible for the court of revision to say that the learned Sessions Judge reached a conclusion wholly untenable on the basis of the materials on record. The fact that the learned Sessions Judge utilised the F.I.R. in disbelieving some of the witnesses other than P. Ws. 6 and 9 does not affect his ultimate conclusion. Section 167 of the Evidence Act lays down:

'The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.'

Nothing substantial has been brought to my notice which would vary the decision of the learned Sessions Tudge. Mr Ramdas fails to brine his case within the dictum laid down in 32 Cut LT 1053.

10. In the result, the revision fails anddismissed.

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