Orissa High Court
Lambodar Badu @ Lipu vs Prahallad Patra @ Babula And ... on 12 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK.
CRA No.105 of 1998
(An Appeal under Section 378(4) of the Criminal Procedure Code, 1973, challenging
the judgment and order of acquittal dated 31.03.1998 passed by Sri S. Mishra,
learned J.M.F.C., Cuttack in I.C.C. No.53 of 1996 for the offence u/s.392/34, I.P.C.)
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Lambodar Badu @ Lipu ... Appellant
Mr. M.R. Nayak, Advocate
Versus
Prahallad Patra @ Babula and Others ... Respondents
CORAM :
JUSTICE CHITTARANJAN DASH
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Date of Judgment : 12.10.2023
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1. This Appeal is directed against the judgment and order dated
31.03.1998 passed in I.C.C. No.53 of 1996 by Sri S. Mishra, learned
J.M.F.C., Cuttack, wherein the accused-Respondents have been acquitted
of the charge under Section 392/34 of the Indian Penal Code (hereinafter
referred to as 'I.P.C').
2. The prosecution case, as reveals from the case record, is that on
19.07.1996 at about 9.30 P.M. while the complainant-Appellant and his
brother were proceeding in a bicycle towards Ali-Pingal road to attend
their ailing father undergoing treatment, all of a sudden the accused-
Respondents namely Jagannath Patra and Ranju Patra (Respondent Nos.4
& 2 respectively who are sons of Nrusingha Patra) obstructed their way
and accused Jagannath Patra dealt a heavy blow by means of a Lathi
aiming to the head of the complainant-Appellant, but as the complainant
warded off the blow, it struck the handle of the bicycle. When the brother
of the complainant raised hulla, none responded to him. Rather, accused-
Respondents namely Prahallad Patra @ Babula and Nrusingha Patra
(Respondent Nos.1 & 3 respectively) appeared at the spot and joined
with accused-Respondent Nos.2 & 4, and accused-Respondent Prahallad
Patra @ Babula strangulated the neck of the brother of the complainant
by use of force. However, on the intervention of the complainant-
Appellant, his brother could be released from the clutches of accused
Prahallad Patra. It is also the case of the complainant-Appellant that
while he was trying to rescue his brother, accused-Respondent Nrusingha
Patra forcibly removed cash of Rs.1000/- (One Thousand) from the
pocket of the complainant. On the arrival of the witnesses, the accused-
Respondents fled away from the spot. It is also alleged by the
complainant that the accused-Respondents attempted to kill him.
3. Pursuant to the complaint lodged, the learned Magistrate conducted an
enquiry u/s.202, Cr.P.C. and took cognizance of the offences under
Sections 392/506/341/34, I.P.C. against all the four accused-
Respondents. However, after examination of the witnesses, the learned
Court framed charge of the offence only u/s.392/34, I.P.C.
4. The plea of the accused-Respondents is a complete denial and of false
implication and replied in their examination U/s. 313 Cr.P.C that the
present complaint is nothing but hatching of a case out of their previous
ill-feelings.
5. In order to prove the culpability of the accused persons, the
complainant examined five witnesses. The Defence on the contrary
examined none, either oral or documentary. The learned trial court
formulated the points of determination and decided the case as stated
above.
6. Out of the five prosecution witnesses, P.Ws.1, 2 & 3 are independent
witnesses. P.W.4 is the brother of the complainant and P.W.5 is the
complainant himself. It is submitted by the learned counsel for the
complainant-Appellants that the trial court did not appreciate the
evidence adduced before it in right perspective and failed to apply its
judicial mind in appreciating the evidence in accordance with the facts
and law. According to the learned counsel for the Appellants, the
evidence borne out from the case record is not only consistent but brings
truth to accept the same as cogent and beyond reasonable doubt and
ought to have been relied upon to accord conviction.
7. Learned counsel for the complainant-Appellant relied upon the
decisions reported in Ravasaheeb Alias Ravasaheb Gouda and Others
vs. State of Karnataka, (2023) 5 SCC 391; Anil Rai vs. State of Bihar,
(2001) 7 SCC 318; Kumaran vs. State of Kerala (CRL.A. No.1078 of
2017, Kerala High Court, DOJ : 22.07.2021); and Venu @ Venugopal
and Others vs. State of Karnataka, (2008) 3 SCC 94.
8. It is apt to mention here that, proper appreciation of evidence is the
most important part of the judicial function of the Trial Judge or
Magistrate and also of the Appellate Court during the course of the trial
of a criminal case. Enmity of the witnesses with the accused person(s)
may not be a ground to reject that testimony and, if on proper scrutiny the
testimony of such witnesses is found reliable, the accused can be
convicted. However, possibility of false involvement of some persons in
the crime or exaggerating the role of some of the accused by such
witnesses could be kept in mind and ascertained on the facts of each case.
9. It is held by the Apex Court that, "in the realm of appreciation of
evidence it is to be kept in mind that if a witness is examined in the Court
is otherwise found reliable and trustworthy, the fact sought to be proved
by that witness need not be further proved through other witnesses,
though there may be other witnesses available who could have been
examined but were not examined. Non-examination of material witnesses
is not a mathematical formula for discarding the weight of the testimony
available on record, however natural, trustworthy and convincing it may
be. The Court can convict an accused on the statement of the sole witness
even if he/she is relative of the deceased and non-examination of
independent witness would not be fatal to the case of the prosecution."
10. Further, it is settled law that when two views are possible, the
judgment and order of acquittal passed by the trial Court should not be
interfered with by the Appellate Court, unless for the special reasons.
11. It is borne out from the evidence that the complainant-Appellant and
the accused-Respondents were inimically disposed to each other since
long. The evidence is tacit on the point that several cases have been filed
earlier from the side of the complainant-Appellant or the accused-
Respondents even after filing of the present complaint. On the above
background the trial court is of the view that while evaluating the
credibility of the testimony of the complainant, it ought to have been
corroborated by the versions of the independent witnesses. The three
witnesses, who have been examined other than the complainant-
Appellant and his brother, though of independent character, are not the
eye-witnesses to the incident. Consequently, the evidence of the
complainant-Appellant and his brother remained for scrutiny to hold the
balance of the case.
12. In the evidence there appears inherent discrepancy and infirmities in
the versions of the complainant and his brother vis-à-vis others that are
crucial to the substratum of the case. This is because the very allegation
that the accused-Respondents forcibly took away a sum of Rs.1000/-
from the pocket of the complainant was the money stated to have been
borrowed from P.W.2. P.W.2 is a witness originally not shown in the list
of witnesses given in the body of the complaint at the time of its filing.
The testimony of P.W.2 with regard to the fact that the sum of Rs.1000/-
was borrowed from him by the complainant for the purpose of treatment
of his father does not found support from the version of the complainant
since neither the complainant himself in his evidence nor his brother
whispered on this. Consequently, the germane of the allegation with
regard to the fact that the complainant was having Rs.1000/- in his pocket
at the time of incident, which was taken away by the accused-Respondent
Nrusingha Patra, casts cloud to the case. It is worth to mention that the
credential of the witnesses that holds the balance of the case has to be
cogent and beyond reproach. A probable case other than the one deposed
to by the witnesses shakes the testimony.
13. In the instant case the sole evidence having brought through the
complainant and his brother to the occurrence, in absence of supportive
evidence with regard to the purpose for which the witnesses alleged to
have carried the money and further they had money at the time of the
occurrence at all, raising an eyebrow to the genesis of the case. The
principles enunciated in the decisions cited by the learned counsel for the
Appellant not only factually different from the one before this Court, the
appreciation of evidence in those cases in respect of the offences alleged
being grave in nature, could not have been weighed in the same manner
in the present case, having regard to the gravity of the offence and
therefore, the citations basing on which the learned counsel for the
Appellant attempted to justify the acquittal to be not in consonance with
the law, is not convincing and as such not acceptable.
14. In the result, the findings recorded by the learned trial court based on
a perspicacious analysis deserves no interference. Accordingly, the
Appeal fails being devoid of merit and the same is dismissed.
Signature Not Verified
Digitally Signed
Signed by: SAMIR KUMAR PARIDA
( Chittaranjan Dash )
Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY
Reason: Authentic Copy Judge
Location: ORISSA HIGH COURT, CUTTACK
Date: 13-Oct-2023 11:43:07
S. K. Parida,
ADR-cum-APS
