Kanhei Sahu vs Bhaktahari Sahu And Others
2023 Latest Caselaw 13089 Ori

                        IN THE HIGH COURT OF ORISSA AT CUTTACK

                                            C.R.A. No.240 of 1995

                    (In the matter of an application under Section 378(4) of the
                  Criminal Procedure Code.)

                  Kanhei Sahu                                   ....             Appellant
                                                     -versus-
                  Bhaktahari Sahu and others                    ....          Respondents

                  Appeared in this case:-
                        For Appellant            :              Mr. Debi Prasad Pattnaik,
                                                                               Advocate

                        For Respondent           :                                 None

                   Appeared in this case:-

                   CORAM:
                   JUSTICE A.C. BEHERA

                                           JUDGMENT

Date of hearing : 21.09.2023 / date of judgment :19.10.2023

A.C. Behera, J. This is an appeal under Section 378(4) of the Cr.P.C., 1973, which has been preferred by the appellant, (who was the complainant in the trial court in I.C.C. Case No.181 of 1988) challenging the order of acquittal of the respondents (those were the accused persons in I.C.C. No.67 of 1990) from the offences under Sections 341/384/506(II)/34, I.P.C., 1860 (in short "the I.P.C.") passed on dated 22nd of August, 1994 by the learned J.M.F.C., Bhadrak.

The case of the complainant (appellant) before the learned trial court in I.C.C. No.181 of 1988 against the respondents (accused // 2 //

persons), in short, was that on 14.05.1988 at about 5.00 P.M., while the complainant along with his son were going towards Ghanteswar village and had reached near Jamjhudi Chhak, suddenly all the accused persons surrounded them and rebuked them in slang languages and forcibly obtained their signatures on a blank paper.

Thereafter, the complainant informed the said matter before the Police Officer of the nearest Police Station, but the police advised him (complainant) to take shelter in the court. For which, the complaint filed the case vide I.C.C. No.181 of 1988 against the persons.

In that I.C.C. No.181 of 1988 before the trial court, the accused persons faced trial having been charged under Sections 341/384/506 Part-II read with Section 34 of the I.P.C., 1860.

2. The plea of the defence was one of complete denial and false implication of the accused persons out of grudge of the complainant against them (accused persons) for their previous litigation relating to the landed properties concerning their cultivation under him (complainant) as Bhag tenants.

3. In order to substantiate the aforesaid charges against the accused persons, the complainant had examined five witnesses including him (complainant) and his son as P.Ws.1 and 2. But, on the contrary, the defence had examined four witnesses as D.W.1 to 4.

After conclusion of the trial, the learned trial court found the accused persons not guilty with any of the charges/offence assigning reasons in the judgment that, observations that, the prosecution has not become able to make out any of the charges/offences against any of the accused persons and acquitted all the accused persons from all the // 3 //

charges/offences vide judgment dated 22.08.1994 passed in I.C.C. No.181 of 1988.

4. On being aggrieved with the aforesaid judgment of acquittal passed in passed in I.C.C. No.181 of 1988 on dated 22.08.1994 by the learned J.M.F.C., Bhadrak in favour of the accused persons, the complainant challenged the same by preferring this appeal being the appellant arraying the accused persons as respondents.

I have already heard from the learned counsel for the appellant only and as none appeared from the side of the respondents to participate in the hearing of the appeal.

5. This is an appeal, which has been preferred against the judgment of acquittal.

It is settled propositions of law that, a judgment of acquittal cannot be disturbed unless the findings of the learned trial court below are perverse or unreasonable. Because presumption of innocence is reinforced by an order of acquittal passed by the learned trial court below in favour of an accused or accused persons. So, there is double presumption of innocence in favour of an accused or accused persons after his/their acquittal. Because, firstly the presumption of innocence that is available to him (accused) under the fundamental principle of criminal jurisprudence that, every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of innocence is further reinforced/reaffirmed and strengthened by the court. Thirdly, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the findings of // 4 //

an acquittal recorded by the trial court. Therefore, the scope of interference in an appeal against an acquittal like this appeal at hand is very limited.

6. In order to ascertain the sustainability and justifiability of the judgment of acquittal passed by the learned trial court in favour of the accused persons for their acquittal from the offence under Sections 341/394/506 Part-II/34 of the I.P.C., 1860, it is pertinent to discuss offence wise.

So far as an order of acquittal from the offence under Section 341 of the I.P.C. passed by the learned trial court is concerned;

Section 341 of the I.P.C. provides punishment for the offence, i.e., wrongful restraint.

The offence, i.e., wrongful restraint has been defined in Section 339 of the I.P.C., 1860.

Section 339 of the I.P.C., 1860 provides that, "whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction, in which that person has a right to proceed, is said wrongfully to restrain that person."

The above word, i.e., 'obstruction' used in Section 339 of the I.P.C. connotes some overt-act in the nature of violence to show of violence.

7. But, here this case at hand, it has not come out from the mouth of any of the witnesses of the prosecution that, there was obstruction to P.W.1 (complainant) and his son(P.W.3) by the accused persons making some overt-act in the nature of violence and as well as showing violence // 5 //

(criminal force). Only they have used the word that, the accused persons surrounded them at Jamujhari Chhak.

So, the observations made by the learned trial court in the impugned judgment for acquittal of accused persons from the offence under Sections 341/34 of the I.P.C., 1860 that, due to lack of proving use of criminal force on behalf of the prosecution cannot be held as an erroneous.

8. So far as the acquittal of the accused persons from the offence under Section 384 of the I.P.C. is concerned;

Section 384 of the I.P.C. provides punishment for the offence, i.e., extortion.

The offence, i.e., extortion has been defined in Section 381 of the I.P.C.

9. Section 383 of the I.P.C. provides that, whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed, which may be converted into a valuable security, commits "extortion".

10. Here in this case at hand P.Ws.1 and 3 have deposed in their respective evidence that, accused persons took their thumb impression and signature on a blank piece of paper, but no more than that.

11. The propositions of law in respect of Section 384 of the I.P.C. has been clarified in the ratio of the following decisions:-

// 6 //

(i) AIR 1941(Patna)-129 and (1941)42 Crl.J.-361(Patna) ; Jadunandan Singh and another vrs. Emperor--I.P.C., 1860--under Section-384--"Accused assaulting victim and forcibly taking his thumb impression on blank piece of paper, the offence under Section384 of the I.P.C. cannot be said to have been established."

12. So, it is very much clear from the ratio of the above decisions of the Hon'ble Courts that, unless there is material into the record on behalf of the prosecution to show that, the accused persons had taken the signature or thumb impression of the so-called victims, i.e., P.Ws.1 and 3 on a blank paper for converting the same to a valuable security, the offence under Section 384 of the I.P.C. cannot be made out.

The learned trial court giving the aforesaid observation in the judgment regarding the absence of evidence on behalf of the prosecution about the taking up of the signature or thumb impression of P.Ws.1 and 3 on a blank paper for using the same as valuable security, the learned trial court has acquitted the accused persons from the offence under Section 384 of the I.P.C., 1860.

13. The above observations of the learned court below is no unreasonable in any manner.

14. So far as the offence alleged under Section 506 Part-II/34 of the I.P.C. against the persons is concerned, absolutely there is no material or evidence in the record before learned trial court on behalf of the prosecution for making out an offence under Section 506 of the I.P.C. against the accused persons. Like the aforesaid offences, prosecution has also failed to make out the offence under Section 506 Part-II/34 of the I.P.C. against the accused persons.

// 7 //

15. When, as per the observations made above, the reasons assigned by the learned trial court for acquittal of accused persons (respondents of this appeal) from the offences under Sections 341/384/506(II)/34 of the I.P.C, 1860 in the impugned judgment are neither perverse nor unreasonable, then, at this juncture, the question of making any interference with the judgment of acquittal passed by the learned court below through this appeal filed by the appellant(complainant) does not arise. As such, there is no merit in the appeal of the appellant. The same must fail.

16. In the result, the appeal filed by the appellant is dismissed on merit. Accordingly, the impugned judgment of acquittal passed by the learned trial court on dated 22.08.1994 in ICC No.181 of 1988 / Tr. No.755 of 1993 is confirmed.

17. Accordingly, the appeal is disposed of finally.

( A.C. Behera ) Judge Orissa High Court, Cuttack The 19th of October, 2023/ Jagabandhu, P.A.

Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 20-Oct-2023 11:44:42