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Charuprava Dei Vs. Duryodhan Mohanty and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1983CriLJ1038
AppellantCharuprava Dei
RespondentDuryodhan Mohanty and ors.
Cases ReferredSadhu Charan Panda v. Mahani Tripathy
Excerpt:
.....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. - in other words, if the main grounds on which the court below has based its order acquitting the accused are reasonable and plausible and may not be entirely and effectively dislodged or demolished the high court should not disturb the acquittal. 5. as rightly noticed by the appellate court, the prosecution had failed to establish the motive on the part of the respondents, belonging to different families and in different walks of life, some of them having been employed as government servants, to join hands in order to grab a piece of land of pw 1 which she had acquired from pw..........a number of cases of the supreme court, has observed thus (at pp. 945, 946):while dealing with an appeal against acquittal in respect of some of the charges, it may be kept in mind that when two views on the evidence are reasonably possible and the evaluation of evidence by the trial court does not suffer from illegality, manifest error or perversity, the order of acquittal is not to be reversed. although in an appeal from an order of acquittal, the powers of the high court to reassess the evidence and reach its own conclusions are as extensive as in an appeal against an order of conviction, yet as a rule of prudence, it should always give proper weight and consideration to matters, such as (1) the views of the trial, judge as to credibility of the witnesses;; (2) the presumption of.....
Judgment:

B.K. Behera, J.

1. Challenge in this appeal is to the judgment and order of acquittal recorded by the learned Sessions Judge, Cuttack, reversing the judgment and order of conviction passed by the learned Sub-Divisional Judicial Magistrate, Kendrapara, holding the accused-respondents guilty of the offences of rioting, house-trespass and extortion and convicting them under Sections 147, 448 and 384 of the Penal Code with a sentence of six months rigorous imprisonment passed against each of them under Section 384 of the. Penal Code without any separate sentence having been passed in respect of other two offences, by accepting the case of the complainant-appellant that owing to previous grudge and ill-will, the respondents, being armed with knife, sword and lathis, came in a body, entered her dwelling house on October 26, 1974 at about 8 to 9 p.m. and by the show of force and under the threat of assault, forcibly took her left thumb impressions on blank plain papers to convert the papers into valuable security, for which the complainant-appellant had filed a petition (Ext. 1) before Sub-Divisional Magistrate, Kendrapara, on October 28, 1974 and she later made a petition of complaint before the learned Sub-Divisional Judicial Magistrate, Kendrapara, on Nov. 4, 1974. To bring home the charges to the respondents, The appellant, besides examining herself as PW 1, had sought reliance on the evidence of Khageswar Mallik (PW 2) and Anadi Mallik (PW 3) who had been catching fish nearby and had seen the respondents leaving the scene of occurrence. The evidence of the other witnesses who had proved some documents and had not testified about the occurrence was of a formal character. The respondents' case was one of denial and false implication and according to them, the appellant had foisted a false case against them, with the aid and assistance of some witnesses inimically disposal of towards them. They had examined three witnesses in their defence in order to get some documents admitted in evidence in their favour.

2. On a consideration of the evidence, the trial court accepted the evidence of PW 1 holding that it got assurance from the evidence of PWs 2 and 3 and rejecting the plea of the defence, convicted the respondents as indicated above. The appellate court, on an assessment of the evidence, took a contrary view and held that none of the charges had been established.

3. Mr. S. Mohanty, the learned Counsel for the appellant, has taken me through the relevant evidence and has submitted that the findings recorded by the learned Sessions Judge are unreasonable and perverse calling for interference by this Court in appeal. Mr. Dhal, the learned Counsel for the respondents has, however, submitted that there are no compelling reasons for this Court to disturb the judgment and order of acquittal recorded by the appellate court holding that the evidence of PW 1 and that of PWs 2 and 3 was not worthy of credence.

4. This Court, in a recent case reported in 1982 Cut LR (Cri) 20 : 1982 Cri LJ 942 State of Orissa v. Trinath Dash referring to and relying on the principles laid down in a number of cases of the Supreme Court, has observed thus (at pp. 945, 946):

While dealing with an appeal against acquittal in respect of some of the charges, it may be kept in mind that when two views on the evidence are reasonably possible and the evaluation of evidence by the trial Court does not suffer from illegality, manifest error or perversity, the order of acquittal is not to be reversed. Although in an appeal from an order of acquittal, the powers of the High Court to reassess the evidence and reach its own conclusions are as extensive as in an appeal against an order of conviction, yet as a rule of prudence, it should always give proper weight and consideration to matters, such as (1) the views of the trial, Judge as to credibility of the witnesses;; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he had been acquitted at the trial Court; (3) the right of the accused to the benefit of doubt; and (4) the slowness of an appellate court in disturbing finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. Where two reasonable conclusions can be drawn from the evidence on record, the High Court should as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the trial court. In other words, if the main grounds on which the Court below has based its order acquitting the accused are reasonable and plausible and may not be entirely and effectively dislodged or demolished the High Court should not disturb the acquittal.

If two views are reasonably possible on the evidence on record, and the evaluation by the lower court does not suffer from illegality, manifest error or perversity, the High Court should not reverse the order of acquittal even if it may not agree with that view and may be prepared to take another view. Where two views are possible the impugned order of acquittal is not to be set aside.

5. As rightly noticed by the appellate court, the prosecution had failed to establish the motive on the part of the respondents, belonging to different families and in different walks of life, some of them having been employed as Government Servants, to join hands in order to grab a piece of land of PW 1 which she had acquired from PW 6, as sought to be established by her. In her cross-examination, however, PW 1 stated that not all the respondents, but one of them, namely, Jagadish, wanted to purchase the land for Rs. 800/-which fact she learnt from PW 6, but the latter had not testified about it. The prosecution is not obliged to prove the motive for commission of an offence, but as laid down by the Supreme Court in the case of Atley v. State of Uttar Pradesh : 1955CriLJ1653 where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused is guilty, but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of proof of motive has this effect only, that the other evidence bearing on the guilt of the accused has to be very closely examined.

6. There can be no doubt that an order of conviction can be passed on the testimony of a solitary witness if the evidence of that witness is found to be clear, cogent and reliable and is of an unimpeachable character. In this connection, reference may be made to the principles laid down in : 1957CriLJ1000 Vadivelu The var v. State of Madras. On a consideration of the evidence of PW 1, the appellatg court, for good reasons, took a view different from the one taken by the trial court and held that the evidence of this witness was not trustworthy and could not be acted upon-Notice was taken of the fact that the appellant had unsuccessfully instituted cases under Orissa Land Reforms Act and proceedings under Sections 145 and 107 of the Cri. P.C. against the re~ spondents. It is strenuously urged on behalf of the appellant that the evidence of PW 1 with regard to the actual occurrence had gone unchallenged, but to challenge the evidence of a witness would not mean to challenge every word in her testimony. a suggestion had been made to the appellant that she had instituted a false case and during her cross-examination. the defence has successfully brought out facts which would render her case improbable and unacceptable which had been noticed by the appellate court.

7. The occurrence had taken place as testified by the appellant, on 26-10' 1974. There was no evidence worth the name that the entire villagers were against her including the Grama Rakshi. On her own showing, she had not reported the occurrence either to the Sar-panch or the Grama Rakshi. Rebati, a co-vendee with the appellant in respect of the land purchased by PW 6, was a neighbour of the appellant. Strangely enough neither she nor any of the inmates of her house came to the rescue of the appellant at the time of the alleged outrageous acts committed by the respondents; nor was there any evidence to show that after the occurrence, PW 1 informed Rebati about it. None of the co-villagers had figured as a witness to the occurrence. On the other hand, reliance had been placed on the evidence of PWs 2 and 3, who were said to be catching fish at the relevant time nearby. None of them had seen the actual occurrence and according to them, when they came to the scene on. hearing the cries raised by the appellant, they saw the respondents leaving the place, some of them being armed and one of them holding some papers. The houses of P. Ws. 2 and 3 were at a distance of about 200 to 300 cubits from the house of the son-in-law of the appellant whom they knew, but strangely enough, they did not even inform him to come and help the appellant while she was in her distress. Their evidence was that after coming to the scene they again went back to catch fish and they did not inform any one about the occurrence. Some of their relations had figured as witnesses in a criminal case instituted by the labourer engaged by the appellant against some of the respondents. Even assuming that P. Ws. 2 and 3 were disinterested witnesses and it had not been shown as to why they would come and depose against the respondents, this could not be a ground to accept their evidence if for the aforesaid reasons, it did not deserve credence. In this connection, reference may be made to the observations of the Supreme Court in the case of Shankarlal Gyarasilal Dixit v. State of Maharashtra : 1981CriLJ325 and of this Court in the case of Sadhu Charan Panda v. Mahani Tripathy : 1974 Cut LR (Cri) 310 : 1974 Cri LJ 1120.

8. The occurrence had allegedly taken place on 26-10-1974. No action was immediately taken by the appellant, on her own showing and two days thereafter, she went to Kendrapara with her son-in-law and filed a petition (Ext. 1) before the Sub-Divisional Magistrate regarding the commission of the alleged act by the respondents. She came to the judicial Court with a complaint on 4-11-1974. The appellate Court was not justified in drawing an adverse inference against P. W. 1 for her coming to the judicial Court late with a complaint as it would be noticed from the calendar showing the holidays for the judicial Courts for the year 1974 that the Courts were closed at the time of the alleged occurrence and reopened on 4-11-1974. The appellant, therefore, had filed the petition of complaint on 4-11-1974. But while it was open to the appellant to take recourse to the police authorities for investigation or to come to the Court with a petition of complaint, regard being had to the nature of the allegations and the fact that the alleged offences were cognizable ones and her allegation with regard to the offence of extortion punishable under Section 384 of the Indian Penal Code was, indeed, grave, it was highly likely, as has rightly been submitted on behalf of the respondents, that had such an occurrence taken place, she would have immediately taken recourse to the police authorities by lodging a report at the police station in order to set the investigation in motion in the course of which papers on which her left thumb impressions had allegedly been taken could be recovered. The fact that in a case of this nature, no recourse was taken to the police authorities by making a report would tell its own tale and in the absence of acceptable materials that even the police agencies were against her, this circumstance would certainly affect the bona fides of her case.

9. It would not be out of place to mention her that in Ext. 1, she named as many as twenty-four persons as the culprits who had entered her house and had taken her left thumb impressions on some blank plain papers, whereas in the petition of complaint, she had named eight culprits. Ananta Kumar Mohanty who had been implicated in Ext. 1, had not been named as one of the accused persons in the petition of complaint. Ajit Narayan Das, respondent No. 5 in this appeal, had not been named as one of the culprits in Ext. 1. This would give an indication that the cases put forward by the appellant at different stages and the names of the culprits given by her had not been consistent.

10. Regard being had to the aforesaid infirmities and suspicious features in the evidence and the reasons given by the appellate Court in support of its conclusion that the case against the respondents had not been established, the findings recorded by the appellate court cannot be said to be illegal or unreasonable or perverse calling for interference by this Court in appeal. Keeping in mind, the salutary principles, referred to above, as to when and in what circumstances the High Court would be justified in reversing the order of acquittal, I find no reasonable ground for interference in this appeal.

11. In the result, the appeal fails and the same is dismissed.


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