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The State Vs. Makund Harijan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1983CriLJ1870
AppellantThe State
RespondentMakund Harijan and anr.
Cases ReferredRam Kumar Panda v. The State of Madhya Pradesh.
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. .....all of them removed ornaments and other articles from the possession of the victims. on the first information report (ext. 13) being lodged by brundaban majhi (p. w. 6), investigation commenced and on its completion the three respondents were prosecuted. to bring home the charges, the prosecution examined eighteen witnesses. the respondents had pleaded not guilty to the charges and their plea was that a false case had been foisted against them. they had not examined any witness on their behalf. on a consideration of the evidence, the learned judge acquitted them of the charges under sections 302 and 394 read with section 34 of i.p.c. but convicted makund harijan under section 411 of the i.p.c. for being in possession of a gold ornament (m.o. iii) which had been stolen from the person of.....
Judgment:

B.K. Behera, J.

1. The State challenges the judgment and order of acquittal recorded by the learned Sessions Judge Bolangir-Kalahandi holding the respondents to be not guilty of the charges under Sections 302 and 394 read with Section 34 of the I.P.C. by discarding the case of the prosecution that while after night fall on March 3, 1976, Padmini Naikani (P.W. 9) along with her daughter Sukanti (P. W. 8) and her son-in-law Deba hereinafter referred to as the deceased were returning to their village after arranging a boffalo cart being driven by Chiran Patra (PW 7) and escorted by Brundaban Majhi (P.W. 6), the three respondents, in furtherance of their common intention, attacked them and one of them, namely, Makunda Harijan, assaulted the deceased by means of an axe which resulted in his death and all of them removed ornaments and other articles from the possession of the victims. On the first information report (Ext. 13) being lodged by Brundaban Majhi (P. W. 6), investigation commenced and on its completion the three respondents were prosecuted. To bring home the charges, the prosecution examined eighteen witnesses. The respondents had pleaded not guilty to the charges and their plea was that a false case had been foisted against them. They had not examined any witness on their behalf. On a consideration of the evidence, the learned Judge acquitted them of the charges under Sections 302 and 394 read with Section 34 of I.P.C. but convicted Makund Harijan under Section 411 Of the I.P.C. for being in possession of a gold ornament (M.O. III) which had been stolen from the person of Padmini Naikani (P.W. 9) at the time of the ' occurrence and sentenced him thereunder to undergo rigorous imprisonment for a period of 3 years. We have been told that no appeal has been preferred by the respondent No. 1 against the order of conviction recorded against him in respect of that offence. As the respondent No 1 could not be traced out in the address furnished by the State in spite of several attempts and the other two respondents had been in custody this Court by order No. 13, dated June 26, 1982, dismissed the appeal as against the respondent No. 1.

2. While Mr. A. Rath the learned Additional Standing Counsel, has challenged the findings recorded by the learned Sessions Judge as unreasonable, Mr. S.S. Basu has submitted that for cogent reasons, the evidence of identification of P. Ws. 6 to 9 in respect of the respondents has been discarded by the trial Court and there is no other evidence to connect them with the commission of any of the offences.

3. If the evaluation of the evidence by the trial Court does not suffer from illegality manifest error or perversity and the main grounds on which the trial Court has based its order are reasonable and plausible the High Court while deciding an appeal against acquittal should not disturb the order of acquittal even if another view is possible on the evidence on record.

4. It admits of no doubt from the evidence that the death of the deceased who was homicidal in nature. The evidence of P. Ws. 6 to 9 does establish that a robbery had been committed. The important question for consideration is as to whether the respondents Nos. 2 and 3 were the authors of the crimes.

5. Apart from the evidence of P.Ws. 6 to 9 who claimed to have identified these respondents as the persons who had robbed them of the articles, the prosecution sought reliance on the recovery and seizure of an ornament M.O. IV on production by Faguna Harijan who had not been examined by the prosecution and it had not been established as to how he had come by the stolen article. The evidence with regard to the recovery of a Tangia M.O. I. from the house of the respondent Krupa Harijan with the help of the police dog was discrepant, as rightly noticed by the learned Sessions Judge and in addition, human blood had not been detected in it. There was no evidence that it was the weapon of attack. Thus the Court is left only with the evidence of identification of P. Ws. 6 to 9. Although these witnesses had identified the respondent Nos. 2 and 3 as the persons who had committed the robbery, it is important to note that in the first information report lodged by P. W. 6, who was no other person than a witness to the occurrence, allegation had been made only against an unknown person who had assaulted the deceased to death and had removed the articles. Thus this very important feature in the evidence implicating the respondent Nos. 2 and 3 was conspicuous by its absence in the first information report. No doubt, a first information report can, strictly speaking be used only to corroborate or contradict the maker of it. But omissions of important facts, affecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case See : 1975CriLJ870 Ram Kumar Panda v. The State of Madhya Pradesh.

6. Notice was taken by the learned Sessions Judge of the fact that one of the respondents, namely, Krupa Harijan had travelled in the same bus with the identifying witnesses being brought for the test identification parade conducted by the Executive Magistrate (P. W. 2) on May, 31, 1976, inside his Court room at Dharamgarh, more than two months after the occurrence and that the identifying witnesses had the opportunity to see the suspects to be identified while they were being brought from the jail to the Court hazat for the test identification parade and in this connection, reference had been made to the statements of P. W. 9, one of the identifying witnesses and of P. W. 18, the Investigating Officer himself.

7. The occurrence had taken place after night fall. There was no evidence that the culprits had been known to P. Ws. G to 9 from before. Even with regard to the one culprit against whom allegations had been made in the first information report, P. W. 6 had not described about the identifying features. There was no evidence that P. Ws. 6 to 9 had marked any such features. As the test identification parade, the identifying witnesses had not spoken about the parts played by the culprits.

8. For the aforesaid reasons the evidence of identification of the respondent Nos. 2 and 3 by P. Ws. 6 to 9 could not safely be accepted. We thus find that the impugned order of acquittal cannot be said to be unreasonable or unfounded calling for interference by this Court in an appeal against acquittal.

9. The appeal fails and is dismissed. The respondent Nos. 2 and 3, namely Krupa Harijan and Damodar Chhatria who are in custody, be set at liberty forthwith,

P.K. Mohanti, J.

10. I agree.


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