Dismissed

State v. Debaraj

Orissa HC27 Sept 2021GA/13/1999

Case brief

AI extract

What is this about?

In an appeal against acquittal under Section 378 CrPC, the state challenged the subordinate court's decision in a mass murder case. The High Court dismissed the appeal, upholding the acquittal as the appellate court found no very substantial and compelling reasons to disturb the trial court's verdict. Additionally, the court noted that the trial of one juvenile respondent alongside adults was ille

What did the court decide?

The government appeal was dismissed. T.C.Rs. were returned immediately. No specific relief was ordered for the juvenile respondent due to delay.

State Vs Debaraj — Murder and Culpable Homicide | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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G.A. No.13 of 1999

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(From an order of acquittal dated 29.5.1986 passed by Sri P.K.Tripathy, First Addl. Sessions Judge, Ganjam, Berhampur in S.T. No.30 of 1984(SC No.178/84 GDC), S.C. No.31/1984 (S.C. No.190/84 GDC) and S.C. No.17/1985 (SC No.95/84 GDC)

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….
State of Odisha Appellant
-versus-
….
Debaraj Tarini (dead) and others Respondents
Advocates appeared in the case by Video Conferencing mode:
For Appellant : Mr. G.N.Rout,
Addl. Standing Counsel
-versus-
For Respondent No.4 : Mr. Debasis Panda, Sr.Advocate
Mr. Sudipto Panda, Advocate
Mr.Soura Chandra Mohapatra,
Senior Advocate
(Amicus Curiae)

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CORAM:

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JUSTICE S.K. MISHRA JUSTICE SAVITRI RATHO

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JUDGMENT

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Date of hearing on 28^th July,2021 and Date of Judgment on 27^th September, 2021.

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G.A. No.13 of 1999 Page 1 of 21

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S.K.Mishra,J.

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In this appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Code” for brevity) , the State of Odisha has assailed the acquittal of all the Respondents by the learned Addl. Sessions Judge, Ganjam, Berhampur in S.T. No.30 of 1984(SC No.178/84 GDC), S.C. No.31/1984 (S.C. No.190/84 GDC) and S.C. No.17/1985 (SC No.95/84 GDC) as per judgment dated 29^th May 1986.

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Bereft of unnecessary details, the prosecution presented its case as follows:

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Mohan Tarini (the deceased) was the ‘Adhikari of the village community property and one of the community properties was the coconut tope. Accused Debraj Tarini (Respondent No.1) had taken that coconut grove on lease in the year 1983. Mohan Tarini retained that cocoanut grove with him in the year 1984 for which there was ill-feeling in between the group of Debaraj Tarini and the family of Mohan Tarini (deceased and his brothers). On 22.4.1984 when no male member in the house of deceased Mohan Tarini and his brothers were present, at that time, accused Debaraj Tarini came and gave kick blows to the closed door of the house of Mohan Tarini and abused the female folks. Mohan Tarini and his brothers returned to their house in the night and they decided to confront the matter and to protest against the high handed and indecent behavior of accused Debaraj Tarini on the following day

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G.A.No.13 of 1999 Page 2 of 21

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morning. Bancha Tarini, Bhajani Tarini, Purushottam Tarini, the three injured witnesses of this case are the brothers of deceased Mohan Tarini. Their house situates in one compact area and the outer verandah of their house is one through they have divided the same.

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On 23.4.1984 in the morning by about 7.00 A.M. Mohan Tarini (deceased) and his brother Purushottam Tarini were brushing their teeth by sitting on the outer verandah of their house. Bhajani Tarini and Bancha Tarini (the two other injured) were massaging oil in their respective bodies by sitting near the door of the room which is adjacent to that verandah. At that time accused Dharmu Bissoi with a khanda-kati, accused Debaraj Tarini with a lathi and khukri and accused Baya Bissoi and Purushotam Bissoi each with a lathi came to village Danda facing towards the house of Mohan Tarini. They were also driving three pairs of bullocks fitted with ploughs. When they reached in front of the house of Mohan Tarini he protested against the previous day’s conduct and behavior of accused Debaraj Tarini. At that time there was exchange of hot words between the accused Debaraj Tarini and Mohan Tarini and thereafter all on a sudden accused Dharmu Bissoi dealt a Khanda-kati blow to the head of Mohan Tarini, who was participating in exchange of words in sitting position on that verandah. The Khanda-kati blow hit on the head resulting in profuse bleeding and Mohan Tarini lie down at that spot of assault with his head towards the door of his house and the legs towards the village Danda and the face being upward. Accused Debharaj Tarini also dealt a blow by Khukri as a result of which the leg of

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G.A. No.13 of 1999 Page 3 of 21

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Mohan Tarini cut and bled. Purushottam Tarini(brother of Mohan Tarini) tried to intervene and to save his brother from further assault and he caught hold of Debaraj. At this accused Dharmu Bissoi dealt a Khanda-kati blow on the back of Purushottam Tarini. Thereafter he left Debaraj and attempted successfully in snatching away the Khanda-kati from the hand of the accused Dharmu Bissoi and in that process, he also sustained injuries on his palms. On seeing this assault on Mohan Tarini and Purushottam Tarini, their brothers Bancha Tarini and Bhajani Tarini and their sister Saibani Bissoi also came to the spot and tried to intervene and to subside the matter, but they were also assaulted by the aforesaid four accused persons along with other accused persons who had in the mean time already came to the spot of occurrence with various weapons like Tenta, Bhusa, Lathis etc. in their hands.

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Thereafter, the accused persons saw Budhia Swain (second Deceased) coming towards the house of MohanTarini and the accused persons went and surrounded him in front of the house of Arakhit Tarini and accused Kartika Tarini gave a stab blow by means of a Chelo to the belly of Budhia Swain and due to that injury he fell down and died at that spot. On hearing assault and death of his father(Budhia Swain), Maheswar Swain (the third deceased and the son of Budhia Swain) also ran towards that spot and in front of the house of Natia Tarini, he was also surrounded by the accused persons and accused Kartika Tarini gave a stab blow by means of the Chelo to the belly of Maheswar swain. Due to that stab blow, the intestine came out and holding the intestine,

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G.A.No.13 of 1999 Page 4 of 21

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Maheswar Swain ran to escape and entered inside the house of one Jagabandhu Swain. He also succumbed to the injury later on.

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With the help of others, Mohan Tarini and Maheswar Swain and Purushottam Tarini in extremely and heavy serious condition and Bancha Tarini, Bhajani Tarini also in serious conditions were removed to the Bhanjanagar Government Hospital. They were brought by Charpoy and bullock carts upto the Aska-Bhanjanagar P.W.D. road and from that place by taking a lift in a truck they were removed to Bhanjanagar Hospital. On the way both Mohan Tarini and Maheswar Swain succumbed to the injuries. While Purushottam Tarini, Bancha Tarini and Bhajani Tarini were in the hospital and the accompanying persons were in the hospital, at that time the officer-in-charge of Gangapur Police Station, who was incidentally at Bhanjanagar on getting information about the case and since that relates to a case within the jurisdiction of his police station, he came to the hospital and there one of the eye witnesses to the occurrence namely Udaya Tarini reported the matter verbally and the same was reduced to writing by the Officer-incharge of Gangapur Police Station who is also the Investigating Officer of the case. The Investigating Officer visited the spot, held inquest on the three dead bodies, forwarded them to the mortuary with dead body chalans for post mortem examination and issued requisition for medical examination of the injured persons namely Bancha Tarini, Purushottam Tarini, Bhajani Tarini, accused Purushottam Bissoi and accused Jaya Tarini, seized the weapons of offences in different stages, seized the blood stained wearing apparels of the deceased persons, injured persons

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G.A. No.13 of 1999 Page 5 of 21

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and some of the accused persons, seized the blood stained and sample earth from the spots of occurrence, prepared spot map showing the spots of occurrence and also made arrangements for dispatch of the seized articles for chemical examination and report of the serologist. After completion of investigation the Investigating Officer filed charge sheet against the convictsRespondents under Sections 302/307/149/148 of the Indian Penal Code (hereinafter referred to as the “Code” for brevity).

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The defence plea of accused person Dandasi @ Dandapani Tarini is a complete denial to the prosecution allegations. Accused persons namely, Trinath Behera Dharmu Bissoi, Kartika Tarini, Babu Tarini, Panchu Tarini, Ranka Tarini, Khetra Swain and Baya Bissoi have also denied to the prosecution allegation and they have also taken the plea of alibi on the ground that by the time of occurrence they were not present inside the village or at the spot of occurrence, but they were outside the village Basti. Accused persons Debaraj Tarini, Jaya Tarini, Purushottam Bissoi have taken a plea of right of private defence to their persons. In support of their defence plea, the accused persons have not examined any witnesses.

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In order to establish its case, the prosecution has examined 14 witnesses. Out of which P.W.11-Udayanath Tarini is the informant and also eye witness. P.Ws.6,7 and 12 namely, Purushottam Tarini, Bhajani Tarini and Bancha Tarini are the injured eye witnesses. They are brothers. P.W.8-Bancha Bissoi, and P.W. No.10Bhagawan Bissoi are also eye witnesses.

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G.A.No.13 of 1999 Page 6 of 21

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(i) P.W.9-Dr.K.Janardan Prusti, P.W.2 Dr.Biswanath Panda and P.W.3-Dr.Snehamanjari Mohanty conducted post mortem examination on the dead bodies of Mohan Tarini, Budhia Swain and Maheswar Swain respectively.

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(ii) The prosecution tendered the evidence of P.W.1Dr.Pankaj Kumar Panda to prove the injury certificate granted in favour of P.Ws.6,7 and 12. The doctor has also proved the injury certificate granted in favour of accused Purushottam Bissoi and accused Jaya Tarini.

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(III) P.W. 4-Subash Chandra Sadangi and P.W.5-Sasi Bhusan Brahma are two police constables who had carried the dead bodies of three deceased to the mortuary for post mortem examination. P.W.13-Prafulla Kumar Sahu was the Officer-incharge of Gangapur Police Station. He conducted the major portion of the investigation. PW.14-Haris Chandra Patnaik, who was the Circle Inspector by the date of occurrence also acted as one of the Investigating Officer and he took some formal steps during the course of his investigation and examined some witnesses.

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In addition to such oral evidence, the prosecution has also led into evidence two other different documents as Exhibits and eight material objects M.Os.(I) to (VIII). All the accused persons have been charged under Sections 148/302/149 of the Code for forming an unlawful assembly with a common object and committing the murder of Budhia Swain and Maheswar Swain. All the accused persons have also been charged under Section 307/149 of the Code for attempting murder to P.Ws.6,7 and 12, namely, Purushottam Tarini, Bhajani Tarini and Bancha Tarini. Accused

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G.A. No.13 of 1999 Page 7 of 21

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Debaraj Tarini and Dharmu Bissoi have been charged under Section 302 of the Code for committing the murder of Mohan Tarini and accused Dharmu Bissoi, Debraj Tarini, Baya Bissoi and Purushottam Bissoi have been charged under Section 302/34 of the Code for committing murder of Mohan Tarini and having shared the common intention for committing the offence. Accused Kartika Tarini has also been individually charged under Section 302 of the Code for committing the murder of Budhia Swain and Maheswar Swain.

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In course of argument, the public prosecutor , as it evident from the judgment impugned put forth the argument that the prosecution has established its case beyond all reasonable doubt by consistent, cogent and truthful version of the eye witnesses. The contradictions and discrepancies which are appearing in the case are very minor in nature and, therefore, no importance can be attached to such minor contradictions. The Police investigation was not done with the due diligence for which there are misdescription of facts and the names of some of the accused, such mis-description in no way take away the evidentiary value of the eye witnesses to the occurrence and due to such a technical defects, the accused persons are not to get any benefit. The injuries were found on the persons of the two accused persons. The injuries are very minor and how they sustained those injuries could not have been explained by the prosecution because they were not conscious that the accused persons sustained any injuries during the time of occurrence. Therefore, the prosecution is not guilty of suppression of any fact and due to non-explanation of the injuries on the

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G.A.No.13 of 1999 Page 8 of 21

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persons of the two accused persons, the prosecution cannot be held guilty of suppression of fact. The defence plea of the different accused persons, have not been proved inasmuch as the accused persons who have taken the plea of alibi have tendered no evidence to prove such fact and the persons who have set up the right of private defence have also not adduced any worth naming evidence. The plea of right of private defence, as explained is not only appears to be improbable but also that has been proved in record to be false and bare imagination of the accused persons. The direction evidence read with the circumstantial evidence such as the seizure of blood stained cloths etc. go to prove the case against the accused persons beyond all reasonable doubt and, therefore, the accused persons should be found guilty for the respective offence on which they have been charged.

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The learned defence counsel in course of argument, contended that the prosecution case is based on contradictory and conflicting story which changed from time to time. In the F.I.R. a separate fact has been narrated and that has been changed while the police investigated into the case and recorded the statements of the injured and the eye witnesses. When the so call eye witnesses appeared in the box as prosecution witnesses, at that time they have given a complete go-bye to the previous stand of the prosecution relating to the occurrence. Under such circumstances, the prosecution case not only suffers from inconsistency but also it suffers from improbabilities. The prosecution is also guilty of suppression of facts inasmuch as they have not explained away the injuries which are found on the person of accused persons Purushottam Bissoi and

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G.A. No.13 of 1999 Page 9 of 21

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Jaya Tarini. When the prosecution does not assert that they participated in the fight or that they made any attempt in giving blows to the accused persons, by way of defending themselves, how the injuries were found on the person of these two accused persons. The time of injury are almost same and therefore some facts are there, which have been suppressed by the prosecution purposefully and therefore, they are guilty of suppression of that fact. The investigating Officer was much diligent in implicating as many accused as possible and he had whole heartedly extended his co-operation and support to the prosecution party. Thus, in his anxiety to give a blind support to the prosecution party, he prepared different documents on taking information from the prosecution party members and the eye witnesses. But due to changing version of the P.Ws. the fact has been exposed in record and since the documents could not have been changed, therefore, the fabrication of facts by the prosecution party has been exposed in the case record.

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He further argued that it is for the prosecution to prove its case beyond all reasonable doubt. In such a case if the prosecution has not proved the case beyond reasonable doubt, then in such case even an accused who has taken a plea of alibi or plea of right of private defence or even if he does not prove such fact, then also it is not injurious to such accused. The prosecution has to succeed on its own merit and not on the weakness of the defence plea. On the other hand, the defence is to succeed on the weakness in the prosecution case and also by its own merit. Since the prosecution

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G.A.No.13 of 1999 Page 10 of 21

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has not been able to prove the against the accused persons, therefore the accused person are entitled to the benefit of doubt.

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After considering the evidence on record and the argument advanced by the learned counsel appearing for the State as well as for the defence, the learned Addl. Sessions Judge came to the finding that P.W.11-Udayanath Tarini, the informant eye witness cannot be accepted as a truthful witness and his evidence was excluded from consideration while deciding on the case of the prosecution.

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(i) Further, the learned Addl. Sessions Judge at page-29 of the impugned judgment in a sub-paragraph (without number) of paragraph-14 continued up to page-31 held that the evidence of P.W.6 has not been shattered and, therefore, he came to the conclusion, after discussing the evidence of P.Ws.7, 10 and 11, that there was no contradiction in the evidence of these witnesses relating to the first sequence of occurrence. Their evidences also tallies with the medical evidence and post mortem report. However, the learned Addl. Sessions Judge further held that the evidences of these witnesses as far as it relates to the assault and the killing of Budhia Swain, disbelieved the version of the witnesses on the ground that there is a contradiction between the narration of the eye witnesses and the medical evidence available on record.

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(ii) At paragraph-16 of the impugned judgment, the learned Addl. Sessions Judge further held that from the evidence of eye witnesses to the occurrence relating to assault on Budhia Swain and Maheswar Swain and from the contents of the post mortem

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G.A. No.13 of 1999 Page 11 of 21

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report of the two doctors, it is very clear that both the deceased did not die due to singular injury in their respective persons but due to more than one external injury on their respective persons. Therefore, the narration of evidence by the eye witnesses and assault on each of these deceased is materially different from medical evidence.

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(iii) Taking into consideration the other alleged infirmities like, non mention of the manner of assault on the deceased in the F.I.R., inconsistency in the oral evidence and the name appearing in the dead body chalan and the requisition for medical examination creates a genuine doubt about the about the genuineness in the oral testimony of eye witnesses, the learned Addl. Sessions Judge came to the conclusion that the prosecution has failed to prove its case beyond all reasonable doubt and the accused persons are guilty of the offences and gave benefit of doubt about the respondents-accused persons.

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When the matter came up for argument, it was found that some of the accused persons were absconding and they were taken to custody. It is also borne out from the records that Respondent No.1-Debaraj Tarini, Respondent No.5-Panchu Tarini, Respondent No.6-Baya Bissoi and Respondent No.10-Khetrabasi Swain have died in the mean time and Respondent Nos.2,7,9,11 and 12 were apprehended. There was also enquiry regarding the juvenility on the date of occurrence of Respondent No.4-Kartika Tarini was enquired into by the learned Sessions Judge, Ganjam, Berhampur as per the direction issued by this Court on 17.9.2014 in Misc. Case No.7/2014. The matter was heard for some time, but due to

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G.A.No.13 of 1999 Page 12 of 21

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superannuation of the Presiding Judge, the matter could not be heard completely.

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The matter was then placed before this Bench on 10.11.2020 and we called for a report from the S.P., Berhampur, Ganjam and I.I.C., Siliguri regarding well being of the surviving respondents. Learned Amicus Curiae did not appear on the adjourned date. So on 15.12.2020 because of the mistake in spelling of the Amicus Curiae Shri Mohapatra in the cause list, the matter was taken up on 22.12.2020. The matter was heard in part on 22.12.2020. On that day the copy of the report received from the learned 1^st Addl. Sessions Judge, Berhampur vide Letter No.88 dated 25.11.2014 was given to the learned Senior counsels Mr. Panda and Mr. Mohapatra. Further hearing was taken up on 25.1.2021. Finally hearing was concluded on 15.2.2021 and judgment was reserved. But some other aspects, which were not argued by the learned counsel, the matter came up for consideration. So we reheard the matter on 28.7.2021.

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In assailing the judgment of the learned Addl. Sessions Judge, Mr. G.N.Rout, learned Addl. Standing Counsel for the State would argue that the learned Addl. Sessions Judge has committed the material irregularity in appreciation of the evidence and, therefore, committed error on record by disbelieving the eye witnesses occurrence on flimsy and technical grounds. He would argue that this case is covered by different judgment of the Hon’ble Supreme Court, wherein it has been held that in certain cases when there is a perverse finding regarding the case of the prosecution, especially with respect to the appreciation of evidence, the

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G.A. No.13 of 1999 Page 13 of 21

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appellate court can and should set aside the judgment of acquittal passed by the learned Judge of the original jurisdiction. He would rely upon the ratio decided by the Hon’ble Supreme Court in the case of Ghurey Lal Vs. State of Uttar Pradesh ; (2008) 10 Supreme Court Cases 450 and would argue that in this case the findings recorded by the learned Addl. Sessions Judge in appreciating the evidence of eye witnesses and disbelieving the same on some unreasonable interpretation of judgment of the Hon’ble Supreme Court is liable to be interfered with, especially when the respondents-accused persons assaulted and killed three persons and injured several others and attempted to commit further murder. He, therefore, prays that the entire material on record should be reassessed by the appellate court and it should be set aside and the surviving respondents should be convicted for the offences under Sections 148/302/307/149 of the Code.

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However, Mr.Rout, learned Addl. Standing Counsel for the State, conceded that Respondent No.4-Kartika Tarini was a juvenile on the date of occurrence and that is the reason, he was granted bail on the date of production. He would also dispute that at that time though Juvenile Justice Act has not come into force by virtue of Orissa Children Act, 1982, the trial of Respondent No.4-Kartika Tarini was illegal and he could not have been tried like an adult by the learned Addl. Sessions Judge. However, he would argue that such substantial and procedural error on the part of not segregating the case of Respondent No.4-Kartika Tarini to be tried by the Children Court would not vitiate the trial as against the rest of the surviving Respondents. He would, therefore, argue

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G.A.No.13 of 1999 Page 14 of 21

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that other Respondents except Kartika Tarini-Respondent No.4, should be found guilty of the offences alleged against them and they should be convicted and appropriate sentence should be awarded. As far as Respondent No.4 is concerned, learned Addl. Standing Counsel for the State would argue that appropriate order may be passed as far as Respondent No.4 is concerned. It is also submitted that no useful purpose would be served by retrying the Respondent No.4-Kartika Tarini under the provisions of Orissa Children Act, 1982 .

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In advancing their argument, Mr. Panda, learned Senior Counsel appearing for Respondent No.4 submitted that this is a fit case where the entire prosecution and trial should be thrown away because of violation of the provisions of the Act and because of the fact that Respondent No.4, who was admittedly a juvenile, as it appears from record, the entire appeal should be dismissed.

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Mr. Soura Chandra Mohapatra, learned Senior Counsel appearing as Amicus Curiae for the rest of the Respondents would argue that in a case against the judgment of acquittal, the Appellate Court should be slow in disturbing the findings recorded by the trial Judge as the learned trial Judge had the opportunity to witness the demeanor of the different witnesses and the presumption of innocence of the accused is further strengthened by their acquittal. Therefore, Mr. Mohapatra, learned Senior Counsel, would argue that appeal preferred by the State Government should be dismissed.

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G.A. No.13 of 1999 Page 15 of 21

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Coming to the first contention advanced, we find that the Respondent No.4-Kartika Tarini was admittedly aged about 14 years at the time of occurrence. There is no dispute regarding the same. In fact on the first date of production before the Magistrate he was released on bail because of his age. At that time, the Orissa Children Act, 1982 was in force and any child has been defined as a boy, who has not attained the age of 16 years or a girl who has not attained the age of 18 years (vide clause (d) of Section 2). It is further apparent from the records that Section 23 provides for the orders that may not be passed against delinquent children. Section 25 provides that a child cannot be tried with another person who is not a child. It is appropriate to take note of the exact words used by the legislature. Both Sections 23 and 25 are quoted below:

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“Section 23 - Orders that may not be passed against delinquent children (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent child shall b e sentenced to death or imprisonment or committed to prison in default of payment of fine or in default of furnishing security:

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Provided that where a child who has attained the age of fourteen years has committed an offence and the Children’s Court is satisfied that the offence committed is of so serious nature or that his conduct and behavior have been such that it would not be in his interest or in the interest of other children in a

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G.A.No.13 of 1999 Page 16 of 21

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special school to send him to such special school and that none of the other measures provided under this Act is suitable or sufficient, the Children’s Court may order the delinquent child to be kept in safe custody in such place and manner as it thinks fit and shall report the case for the orders of the Government.

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(2) On receipt of the report from the Children’s Court under Subse3ction (1), the Government may make such arrangement in respect of the, child as they deem proper and may order such delinquent child to be detained at such place and on such conditions as think fit.

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Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the child could have been sentenced for the offence committed.

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Section 25 – No joint trial of child and person not a child- (1) Notwithstanding anything contained in Section 223 of the Code of criminal Procedure, 1973 (2 of 1974) or in any other law for the time

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being in force, no child shall be charged with or tried for, any offence together with a person who is not a child. (2) If a child is accused of an offence for which under Section 223 of Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force such child and any person

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G.A. No.13 of 1999 Page 17 of 21

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who is not a child would, but for the prohibition contained in Sub-section (1), have been charged and tried together, the Court taking cognizance of that offence shall direct separate trials of the child and such other person.”

¶73

Section 14 of the said Act provides for Children’s Court. Section 21 of the said Act provides for Inquiry by the Children’s Court and Section 22 provides for Orders that may be passed regarding delinquent children.

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A plain reading of all these provisions reveal that a boy who has not attained the age of 16 years has to be treated as a child during the period the Orissa Children Act, 1982 was in force. A child cannot be tried as an adult by a court of Addl. Sessions Judge Specific Board has been provided for the inquiry regarding a child committing an offence. So on the fact of the record, the trial of Respondent No.4-Kartika Tarini as a adult along with other adults vitiates the proceedings as against that Respondent. Hence though there are allegations against the Respondent No.4, we cannot hold that he is guilty of committing murder and that it will not be proper to remand the matter to the Court of Juvenile Justice Board as the occurrence took place in the year 1983 and in the mean time four decades have elapsed.

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As far as the other accused persons are concerned, we rely upon the off quoted decision in the case of Ghurey Lal V. State of Uttar Pradesh ; (2008) 10 Supreme Court Cases 450, in which the Hon’ble Supreme Court has taken into consideration several

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G.A.No.13 of 1999 Page 18 of 21

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precedents beginning from the judgment of the privy council in the case of Sheo Swarup v. Kind Emperor ; AIR 1934 PC 227 and has come to the conclusion that the appellate court should follow the well established and well settled principles before going to overrule or otherwise disturb the trial court’s acquittal. We find it appropriate to quote the summary recorded by the Hon’ble Supreme Court at Paragraph-70 of the said judgment.

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“Paragraph 70- In the light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court’s acquittal.

¶79

(1) The appellate court may only overrule or otherwise disturb the trial court’s acquittal if it has “very substantial and compelling reasons” for doing so.

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A number of instances arise in which the appellate court would have “very substantial and compelling reasons” to discard the trial court’s decision. “Very substantial and compelling reasons” exist when:

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(i) The trial court’s conclusion with regard to the facts is palpably wrong;

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(ii) The trial court’s decision was based on an erroneous view of law;

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(iii) The trial court’s judgment is likely to result in “grave miscarriage of justice.”

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G.A. No.13 of 1999 Page 19 of 21

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(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

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(v) The trial court’s judgment was manifestly unjust and unreasonable;

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(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.

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(vii) This list is intended to be illustrative, not exhaustive.

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(2) The appellate court must always give proper weight and consideration to the findings of the trial court.

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(3) If two reasonable views can be reached-one that leads to acquittal, the other to conviction-the High courts/appellate courts must rule in favour of the accused.

¶91

Applying these principles to the case in hand, we could not find very substantial and compelling reasons to overrule the judgment of acquittal recorded by the learned Addl. Sessions Judge. We could not agree with the contention of Mr. G.N.Rout, learned counsel appearing for the State, that the learned trial Judge’s conclusion with regard to the fact is palpably wrong, or that it is based on erroneous view of law, or the entire approach of the learned trial Judge dealing with the evidence was patently illegal or that it was unjust and unreasonable. The appellate court must always give proper weight and consideration to the findings

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G.A.No.13 of 1999 Page 20 of 21

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of the trial court and if two reasonable views can be reached, one that leads to acquittal or the other to conviction, the Court must rule in favour of the accused. We are also of the view that if the appellate court takes a view different from the view taken by the learned trial Judge, but the trial Judge’s finding do not come within the parameter enunciated by the Hon’ble Supreme Court in the case of Ghurey Lal v. State of Uttar Pradesh (supra) case, then also the appellate court should not interfere in the matter.

¶94

In this case, we have discussed in detail the views that has been taken by the learned trial Judge in paragraph-12 and we do not find any reason to come to a conclusion different from one arrived at by the learned Addl. Sessions Judge.

¶95