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Gobind Chandra Mohapatra and ors. Vs. Haribandhu Mohapatra and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 184 of 1979
Judge
Reported in1985(I)OLR244
ActsCode of Criminal Procedure (CrPC) - Sections 378
AppellantGobind Chandra Mohapatra and ors.
RespondentHaribandhu Mohapatra and ors.
Appellant AdvocateP.K. Misra, Adv.
Respondent AdvocateR.C. Ram, Adv.
DispositionAppeal allowed
Cases ReferredLakshmi Singh and Ors. v. State of Bihar
Excerpt:
.....could not be believed, there was delay filing the complaint petition in court, the evidence of the prosecution witnesses was discrepant, the independent witnesses were not reliable, the parties had previous enmity on account of litigation and so the evidence of the injured prosecution witnesses was interested and of partisan character and injuries on two of the respondents were not explained. it is a well known prosecution of law that the high court in exercise of its jurisdiction under section 378 of the code of criminal procedure shall not interfere with a judgment of acquittal unless the assessment of evidence and conclusion drawn by the court which acquitted the accused persons are unreasonable, erroneous and perverse. 4 and 5 received simple, as well as, grievous injuries. by a..........the trial court directed the sentences to run concurrently. the respondents appealed before the learned sessions judge who found that the charges against them were not proved beyond reasonable doubt and so he set aside the orders of conviction and sentence and acquitted the respondents. this appeal is against the order of acquittal. 4. the appellants examined ten witnesses in support of the prosecution case. out of them p. w. 1 was the medical officer attached to the district headquarters hospital, balasore where some of the appellants were treated for injuries sustained by them. p. ws. 2, 4, 5, 6, 7 and 8 were all very close relations who were injured in the alleged incident and p. ws. 3, 9 and 10 were independent witnesses who saw the occurrence. their evidence was accepted by the.....
Judgment:

K.P. Mohapatra, J.

1. This appeal is directed against the judgment passed by the learned Sessions Judge, Balasore reversing the order of conviction passed by the learned Judicial Magistrate, Balasore and acquitting the respondents of charges under Section 147, 323/149 and 325 I. P. C. The complainants are the appellants.

2. The appellants are the respondents (accused) belonged to the same village and some of them are interrelated. According to the prosecution case, there were land disputes between the parties culminating in suits in Civil Courts and thus they were in inimical terms. On the date of occurrence, namely, 10.12.1972 at about 5 p. m., the respondents assaulted the appellants and their other relations who came to their rescue by means of first blows, lathis and Katari in open paddy fields, as a result of which, each of them sustained simple and grievous injuries. One of the brothers of the appellants lodged the F. I. R. at the Balasore Police Station on the next day but, as the police did not take any action, the appellants after being discharged from the Balasore, District Headquarters Hospital where they had been admitted as indoor patients for treatment, filed the complaint petition on 6.1.1973 against the respondents.

3. The respondents who stood their trial for offences under Sections 147, 323/149, 324/149, 325/149 IP. C. denied the charges framed against them. The learned Judicial Magistrate ' convicted all the respondents under Sections 147 and 323/149 I.P.C. and sentenced each of them to undergo rigorous imprisonment for six months on each Court. He further convicted respondents 2, 3, 4, and 5 under Section 325 I.P.C. and sentenced each of them to undergo rigorous imprisonment for a period of two years. The trial Court directed the sentences to run concurrently. The respondents appealed before the learned Sessions Judge who found that the charges against them were not proved beyond reasonable doubt and so he set aside the orders of conviction and sentence and acquitted the respondents. This appeal is against the order of acquittal.

4. The appellants examined ten witnesses in support of the prosecution case. Out of them P. W. 1 was the Medical Officer attached to the District Headquarters Hospital, Balasore where some of the appellants were treated for injuries sustained by them. P. Ws. 2, 4, 5, 6, 7 and 8 were all very close relations who were injured in the alleged incident and P. Ws. 3, 9 and 10 were independent witnesses who saw the occurrence. Their evidence was accepted by the learned Judicial Magistrate in arriving at the finding that the prosecution had established its case against the respondents. The learned Sessions Judge, however, took a different view. He found that the medical evidence could not be believed, there was delay filing the complaint petition in Court, the evidence of the prosecution witnesses was discrepant, the independent witnesses were not reliable, the parties had previous enmity on account of litigation and so the evidence of the injured prosecution witnesses was interested and of partisan character and injuries on two of the respondents were not explained. It is a well known prosecution of law that the High Court in exercise of its jurisdiction under Section 378 of the Code of Criminal Procedure shall not interfere with a judgment of acquittal unless the assessment of evidence and conclusion drawn by the Court which acquitted the accused persons are unreasonable, erroneous and perverse. Reversal of a judgment of acquittal will not be justified merely on the ground that two views on the evidence are reasonably possible See 54 (1982) C.L.T. 83, : State of Orissa v. Trinatii Das and Ors., 55(1983) C.L.T. 553 : The State of Orissa v. Arjim Das, 58 (1984) C.L.T. 101: [1934 (I) OLR 621]: Smt. Dhara Dei v. Prafulla Swain and Ors., and 58(1984) C.L.T. 127, State (Collector, Central Execise) v. Tapan kumar Shome. It is also a settled principle of law that the High Court has full power to review at large all the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed (See) A.I.R. 1945 P. C. 151 : Nur Mohammad v. Emperor and A.I.R. 1964 S. C. 286 : Noor Khan v. State of Rajasthan. Keeping the above legal theory in the background, it is necessary to examine each of the reasons which weighed with the learned Sessions Judge in reversing the judgment of conviction.

5. The learned Judicial Magistrate in his judgment referred to the evidence of each of the witnesses who was injured at the time of occurrence and came to hold that the respondents were the assailants. The learned Sessions Judge in para 11 of his judgment categorically held that the complainants (meaning, the appellants) were assaulted and admitted in the hospital. Therefore, there is absolutely no doubt that , the appellants and some other prosecution witnesses were injured on the date of occurrence, namely, 10. 12. 1972. At the point, it is necessary to indicate the number and nature of injuries sustained by the prosecution witnesses. According to the evidence of P. W. 1, the Medical Officer one of the complainants P. W. 2, Gobind Chandra Mohapatra sustained as many as seventeen injuries. One of them was an incised looking injury, another was an abrasion and the rest were bruises. The injuries could be possible by a hard object. Although he examined the injured on 11.12.1972. he gave the medical certificate (Ext. 3) on 9. 1.1973. P. W. 2 was admitted in the District Headquarters Hospital, Balasore on 11. 12. 1972 and was discharged on 2.1.1973 as would appear from the bed-head ticket (Ext 2) The bed-head ticket also indicates as many as seventeen injuries sustained by this witness. Even the injury report (Ext. C) shows that he sustained five injuries although the Medical Officer who wrote the injury report was not examined. P. W. 4, Jadabendra Mohapatra, according to the medical certificate (Ext. 7) granted by P. W 1, had Stained two bruises and fracture of the fibula at the lower end of the left leg as per the X-ray report (Ext. 9). P. W. 5 Rudra Narayan Mohapatra, according to the medical certificate (Ext. 5) granted by P.W. 1, had sustained an incised looking injury, one bruise and fracture of rightulna in the middle according to the x-ray report (Ext.6/1). Even Lording to the injury reports (Exts. A and D) these two witnesses Sustained injuries although the Medical Officer who wrote the injury report was not examined. It is, therefore, established beyond doubt that p w. 2 received simple injuries and p. ws. 4 and 5 received simple, as well as, grievous injuries. The learned Sessions Judge seems to have cast some doubt on the evidence of p. w. 1, the Medical Officer and the certificates granted by him. But in view of the aforesaid evidence and bis own finding in para 11 of the judgment there was no scope to disbelieve the evidence of p. w. 1, the Medical Officer and the certificates granted by him describing the injuries received by p. ws. 2, 4 and 5 as referred to above. P. W. 1, the Medical Officer was indisputedly attached to the District Headquarters Hospital, Balasore and had examined and treated the injured persons. Nothing was brought out by the defence so as to discredit him. On the other hand, the bed-head ticket (Ext. 2) and the injury reports (Exts. A, B and C) unmistakebly show that these three witnesses had suffered injuries. Strictly speaking there was no divergence of medical opinion in this case, because, the evidence on record does not disclose it. Therefore, while upholding the finding that p. ws. 2, 4 and 5 were injured, I further hold that there was no scope to disbelieve the evidence of p. w. 1, the Medical Officer. The finding of the learned Sessions Judge in this respect is grossly erroneous.

6. One of the main grounds which weighed with the learned Sessions Judge was delay of twenty-six days in filing the complaint petition in Court by p. ws. 2, 4 and 5. According to him, it was a suspicious circumstance. While taking this view he did not, however, deeply scrutinise the materials available on the record but was swayed away by superficial considerations. It is essential to examine from the materials available on the record if such a view can be sustained. Indisputedly the occurrence took place on 10. 12. 1972 and the complaint petition was filed on 6. 1. 1973. P. W. 2 was admitted as an indoor patient on 11. 12. 1972 in the District Headquarters Hospital, Balasore and was discharged on 2. 1. 1983, This was one of the grounds to explain the delay in filing the complaint petition in the Court The criticism levelled by the learned sessions Judge was that the other person who figured as complainants could have made the complaint petition earlier. It is true that they could have done so, but they thought it wise to await return of p. w. 2 after discharge from the hospital. This was quite probable. In the complaint petition itself it was explained that it could not be instituted in the Court earlier on account of the fact that P. W. 2 was discharged on 2.1.1973 and P. Ws. 4 and 5 had sustained fractures in their leg and hand respectively. Apart from the aforesaid explanation it is apparent on the face of the record that Bijaya Narayan Mohapatra, lodged the F. I. R. (Ext. F) at Balasore Police Station on 11. 12. 1972 at 7 A. M. reporting about the occurrence on the basis of which G. R. Case No. 1364 of 1972 was started and D. W..2, the Investigating Officer submitted charge-sheet against respondents Anadi Mohapatra and five others for offences under Sections 147, 148 and 325 I. P. C. From order No. 12 dated 15. 5. 1973 of the trial Court record it appears that G. R. Case No. 1364 of 1972 was against six of the respondents. Charge-sheet was submitted on 26. 3.4973 and cognizance of offences under Sections 147, 148 and 325 I. P. C. was taken. Because the occurrence was one and the same in both the cases and six of the accused persons were common. The learned Judicial Magistrate amalgamated the G. R. Case with the complaint case. The learned Sessions Judge unfortunately did nut scrutinise the records of the case and omitted to take note of these important facts having an important bearing on the question of delay of filing the complaint petition. Therefore, he arrived at the grossly erroneous conclusion and committed an error of record with regard to the delay. On the other hand, there was no delay in reporting the occurrence to the police. Delay in filing the complaint petition on account of long treatment undergone by the appellants for the injuries received by them was sufficiently explained and there was no scope to raise any suspicion into the prosecution case.

7. Indisputedly there were civil litigations between the parties and prior to the occurrence, their relationship was strained, practically versing on enmity. It is also true that except P. Ws. 3, 9 and 10 who were not related to the appellants and were independent witnesses of the Village, the others, namely, P. Ws. 2, 4, 5, 6, 7 and 8 were closely related to one another being members of the same family. Out of them except P. W. 8 all were injured in course of the alleged occurrence. The fact that some of the prosecution witnesses were injured- and were treated in the District Headquarters Hospital, Balasore will itself show that they were very much present at the time of the occurrence and were eye-witnesses to it. By a series of decisions of the Supreme Court, law has been well settled that the evidence of interested, partisan and relation witnesses, as well as, those enimical towards the accused cannot be straight away rejected. The evidence of such witnesses shall have to be appraised with reference to the substratum of the prosecution case taking into consideration the entire facts and circumstances thereof. While going to the Court, shall exercise appropriate care and caution (See A. I. R. 1981 S. C. 697, State of Panjab v. Wassan Singh and Ors., A. I. R. 1981 S. C. 2073, State of U. P. v. Manoharlal and Ors., 1980 Cri. L. J. 1501, State of Jammu and Kashmir v. Hazara Singh and Anr., A 1. R. 1979 S. C. 702, Ram Adhar v. State of Uttar Pradesh, 1982 Criminal. L. J. 850, State of U. P. v. Suresh alias Chhayan and Ors. and 1983 Criminall. L. J. 1711, Madhuban Dharai and Ors. v. State). It is also well settled that minor discrepancies shall not be taken into consideration while appreciating the evidence of prosecution witnesses In this connection I am tempted to quote from A. I. R. 1978 S. C. 1542, Narotam Singh v. State of Punjab and Anr., wherein their Lordships of the Supreme Court observed ;

'3. Discrepancies do not necessarily demolish testimony; delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. The 'secred cows' of shadowy doubts and marginal mistakes processual or other, cannot deter the Court from punishing crime where it has been sensibly and substantially brought home.'

After discussing the evidence, His Lordships observed.

8. The learned Sessions Judge mainly found the following ' discrepancies in the evidence of the prosecution witnesses : -

(i) P. W. 8 stated that he did not see P. W. 3 neat the place of occurrence.

(ii) P. W. 9 stated that he was not examined by the police although he was in fact examined.

(iii) None of the injuries were caused by a Katari.

(iv) Prosecution did not disclose as to what happend to the report of P. W. 3 at the police station.

Surprisingly the learned Sessions Judge recorded in para 8 of his judgment that the statement of P. W. 9 recorded under Section 161 Criminal P. C being the earliest statement after the F. I. R. was lodged, due weight should be attached to it in the interest of the accused persons. In other words, he treated the statement given by a witness under Section 161 Criminal P. C. as substantive evidence which is not permissible according to law. He even went to the extent of disbelieving P. W. 1 the Medical Officer who granted the medical certificates end proved the injury reports, bed-head tickets, as well as the X-ray reports, although, indisputedly at the relevant time he was attached to the District Headquarters Hospital, Balasore and, according to his own evidence, treated the injured persons. The aforesaid discrepancies and other facts particularly those mentioned in para 8 of his judgment were the outcome of superficial and shallow appraisal of the evidence, facts and circumstances established by the prosecution. It is to be noted that the occurrence took place on 10.12.1972. P. W. 1 was examined on 22. 10.1973 and was cross-examined on 21. 5. 1975 and again re-examined on 25. 8.1975. P. W, 2 was examined on 3. 12. 1973 and was cross-examined on 2. 4.1975. P. W. 3 was examined on 4.12.1973 and was fully cross-examined on 30. 4. 1975. P. W. 4 was examined on 26. 3. 1974 and was cross-examined on 21.7. 1975. P. W. 5 was examined on 23. 3.1974 and was cross-examined on 18, 5. 1976. P. W. 6 was examined on 27. 3.1974 and was cross-examined on 29.10.1975 and 30.10.1975. P.W.7 was examined on 27.3.1974 and was cross-examined on 18. 5.1976. F. W. B was examined and cross-examined on 7. 11. 1975. P. W. 9 was examined and cross-examined on 15. 11.1975. Similarly P. W, 10 was examined on 15. 11.1975 and cross-examined on 23. 3. 1976. Human memory may fail due to lapse of time and if a witness is asked to depose of facts which he. had seen years before, it is not unlikely that slight discrepancies here and there may occur. But for that reasons his evidence cannot be altogether rejected as unreliable. In the instant case the prosecution witnesses were examined and cross-examined long after the occurrence took place and so it was not unusual that some discrepancies might have crept into their evidence which, however, as . already referred to above were negligible. Particularly the learned Sessions Judge did not discuss the evidence of the injured witnesses and straight away rejected the same being partisan which according to law he was not entitled to do. It is not necessary to refer to the evidence of two defence witnesses examined by the respondents including that of the investigating officer who submitted charge-sheet in the F. I. R. case, because, their evidence does not in any way affect the evidence of the prosecution witnesses. I would accordingly hold in agreement with the learned Judicial Magistrate and in disagreement with the learned Sessions Judge that the Substratum of the prosecution case of assault has been established.

9. The learned Sessions Judge found that respondents Anirudha and Surendra (deceased) received injuries as per the injury reports (Exts. H and J) on their person which were not explained by the prosecution. The injuries however, were minor and superficial in nature as disclosed in para 9 of the judgment of the learned Sessions Judge and the subject-matter of a counter case in which the appellants were arrainged as accused and were acquitted. Law is well established that it is the duty of the prosecution to explain injuries on the accused but, if such injuries are of minor and superficial nature and no explanation is offered as to how the accused sustained such minor and superficial injuries, no adverse inference can be drawn against the prosecution case. In this connection it is pertinent to quote the following from A. I. R. 1976 S. C. 2263, Lakshmi Singh and Ors. v. State of Bihar :

'....there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far out weights the effect of the omission on the part of the prosecution to explain the injuries.'

In this case as already stated the injuries are minor and superficial and further it has been explained by the prosecution witnesses that accidentally lathi blows fell on respondents Anirudha and Surendia (deceased). In such circumstances, no adverse presumption can be drawn against the prosecution case.

10. In the ultimate analysis, none of the grounds relied upon by the learned Sessions Judge in acquitting the respondents can be legally sustained. He did not appreciate the prosecution evidence in its true perspective and was completely swayed away by shallow and superficial considerations. He did not also attach any importance to the apprisal of the prosecution evidence by the trial Court which had the benefit of recording the evidence of the prosecution witnesses and watching their demeanour in Court. If for criminal offences the accused are not punished although the evidence warrants punishment there shall be miscarriage of justice and people will loose faith in the administration of criminal justice. Duty is therefore, heavily cast on Courts to appr se the prosecution evidence in accordance with law so that the guilty will be punished and the innocent will be set at liberty. In the instant case, as rightly found by the trial Court the prosecution case against the respondents has been established under Sections 147, 323 and 149 I..P. C. Further the prosecution case under Section 325 I. P. C. has also been established against' respondents Anadi and Anirudha though not against respondents I rafulla and Gopinath. Conviction of the respondents under the aforesaid Sections of the I. P. C. is restored. Due to long lapse of time it is not desirable to sentence them to undergo imprisonment for offences under Sections 147, 323 and 149 I. P. C. It will be sufficient if the respondents are sentenced to pay a fine of Rs. 50/- each on each count in default to undergo rigorous imprisonment for 15 days on each count with a further direction that the default sentence shall run concurrently. Respondents Anadi and Anirudha are sentenced to undergo rigorous imprisonment for one month each for the offence under Section 325 I. P. C. The appeal is accordingly allowed.


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