The High Court dismissed a criminal appeal filed with a 300-day delay. The State argued for rehearing on merit due to an acquittal, but the court found no meritorious ground to condone the delay.
CRLLP No.127 of 2018 and I.A. No.104 of 2018 were dismissed.
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CRLLP No.127 of 2018 1
CRLLP No.127 of 2018 And
I.A. No.104 of 2018
Due to pandemic situation for COVID-19, this matter is taken up through Video Conferencing mode.
Heard Mr. M.S. Sahoo, learned Additional Government Advocate on merit as well as on the question of limitation.
There is delay of 300 days in filing the CRLLP. As there is much delay in filing the appeal, we proposed to hear the CRLLP on merit to find out whether there is any question of facts or question of law which should be re-examined by this Court in a Government Appeal, as the original Court judgment is one of acquittal.
The occurrence happened at about 11.20 P.M. on 15.06.2016. One Manika Purty was done to death by blow of axe allegedly by the present Opposite Party.
The father (P.W.1) and mother (P.W.5) of the deceased were examined as eye witnesses, but both turned to be thoroughly infirm witnesses and rightly their evidence has been disbelieved as eye witnesses.
The second circumstance, which remained for consideration before the Court below was the discovery statement made by the Opposite Party
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purportedly under Section 27 of the Evidence Act in presence of P.W.2, P.W.16 and the Investigating Officer P.W.17. Such evidence relevant under Section 27 of the Evidence Act has been disbelieved on the ground that at the time of occurrence, the Opposite Party had not yet been arrested and the statement made before P.W.2, P.W.16 and P.W.17 cannot be relevant under Section 27 of the Evidence Act, as the Opposite Party was not in custody.
Such a view by the learned trial Court is highly technical. As the statement has been made in presence of the police after Opposite Party was apprehended and that too in presence of P.W.2 and P.W.16 the statement can be held to be one under Section 27 of the Evidence Act. But it is settled in law that a discovery under Section 27 of the Evidence Act cannot be made the foundation for conviction, unless there is any corroborative evidence. This position is settled by a catena of decisions.
Admittedly, there is no other corroborative evidence except the evidence obtained on record under Section 27 of the Evidence Act. There is also no corroboration as to whether the axe so discovered was found with finger print of the Opposite Party or it was found with the blood corresponding to the blood of the deceased. Even if those corroboration
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would have been there, the Opposite Party could not have been convicted for offence under Section 302 of I.P.C. in view of the settled law on the point.
As there is nothing on merit, we are not inclined to condone the delay and grant leave to the State to file appeal. The I.A. and CRLLP are accordingly dismissed.
Authenticated copy of this order downloaded from the website of this Court in the manner prescribed in this Court’s Notice No.4587, dated 25.03.2020 shall be treated at par with the certified copy of this order.
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C.R. Dash, J.
….………………………. Savitri Ratho, J.
Murmu
2 issues framed by the court
Whether an appeal should be entertained on merit despite a delay of 300 days when the trial court acquitted the accused.
Whether a discovery statement under Section 27 of the Evidence Act made before arrest can be treated as valid and form the basis for conviction.
2 provisions across 2 enactments
The State
The Opposite Party
C.R. Dash
Savitri Ratho
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
