Dismissed

State v. Kanhei

Orissa HC21 Nov 2023GA/66/1997

Case brief

AI extract

What is this about?

The High Court dismissed the State’s special leave appeal against acquittal in a prosecution for offences under IPC Sections 34, 323, and 448. The Court held that the prosecution evidence exhibited discrepancies and contradictions, and no perversity was found in the trial court’s appreciation of facts, thus refusing interference with the acquittal.

What did the court decide?

The appeal was dismissed, the judgment of acquittal was upheld, and the bail bond of the respondent was cancelled.

State Vs Kanhei — Criminal Trial and Appeal | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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GA No.66 of 1997

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From the order dated the 28.10.1995, passed by J.M.F.C.(R), Cuttack, in G.R. Case No.974/93// Trl. No.27/94

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------------------
State of Orissa …. Appellant
-versus-
Kanhei Samal and others …. Respondents
For Appellant : Mr. K.K. Gaya, ASC
For Respondent : None
CORAM:
JUSTICE V. NARASINGH
DATE OF HEARING : 31.10.2023

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DATE OF JUDGMENT: 21.11.2023

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V. Narasingh, J.

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Heard Mr. Gaya, learned ASC for the Appellant.

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None appears for the Respondents.

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This Appeal at the instance of the State is filed under Section 378(1)&(3) of the Cr.P.C. assailing the judgment dated 28.10.1995 passed by the learned J.M.F.C.,(R), Cuttack in G.R.

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G.A. No.66 of 1997 Page 1 of 7

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Case No.974/23 (Trl. No.27/94) acquitting the Respondents of the charges under Section 448/323/324/341/34 of IPC.

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The principles governing the exercise of power in an appeal against acquittal is worth reiterating before adverting to the factual matrix of the case at hand.

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In Mrinal Das & Others vs. the State of Tripura , 2011 (9) SCC 479 reported in the apex Court have extensively dealt with the scope of an Appellate Court to interfere with an Appeal against acquittal.

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The guiding principles in an Appeal against acquittal and the power of the Appellate Court to “re-appreciate, review or reconsider evidence and interfere with an order of acquittal was restated while quoting paragraph-42 of the judgment of the Apex Court in the case of Chandrappa and Others vs. State of Karnataka (Supra).

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“42..... The following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

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(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes

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Page 2 of 7

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G.A. No.66 of 1997

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of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

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(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly , the presumption of innocence is available to him 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 his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

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Thus on the touchstone of the law laid down by the Apex Court, the contention of the State has to be examined as to whether the case at hand merits interference, with the impugned judgment of acquittal.

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The Respondents were charged under Section 448/323/324/341/34 of IPC and it is the case of the prosecution that on 05.10.1993, the informant had been to village Haladibasanta to attend the last rites of her sister-in-law. On that day at about 9 P.M., while she was engaged in cleaning the house, accused persons abused her in filthy languages and entered inside the house and dealt a blow as a result of which she sustained injuries. Thereafter, she lodged an F.I.R. After receipt of the F.I.R., she was examined by the doctor. After

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G.A. No.66 of 1997 Page 3 of 7

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completion of the investigation police submitted charge sheet against the accused persons.

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The case of the defence was one of complete denial and pleaded not guilty.

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Five witnesses were examined on behalf of the prosecution. P.W.1 is the doctor, P.W.2 & 4 are the eye witnesses. P.W.3 is the informant and P.W.5 is the I.O.

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While recording the Judgment of acquittal the learned Court on an analysis of the evidence held that there are material discrepancies among the evidence of P.Ws-2,3 & 4. There is also contradiction with regard to assault made by accused Kanhei on P.W.3. Civil disputes inter se between the accused persons and the informant was also noted.

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P.W.3 is the informant/injured. In her deposition, she has stated as under regarding the overt act attributed to Kanhei and Braja (Respondent Nos.1 and 2 respectively) is stated as under;

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“…………They forcibly entered into my house. Accd. Braja, Kanhei dragged me out. The accd. Kanhei dealt a push blow to my neck. I fell down on the court yard of my house having my face downwards. I sustained injuries on my left chick and my right eyebrow while I tried to get up accd. Kanhei assaulted me by lathi to my right side forehead and I sustained bleeding injuries and I fell down and lost my sense. When I regained my sense, I found there are blood on the ground and the family members lifted me to inside the house………..”

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Page 4 of 7

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G.A. No.66 of 1997

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And, she specifically denied the submission that “It is not a fact that I have mentioned in F.I.R. nor have I stated before police that I sustained injuries on my chick and eye brow and the accd. Braja and that accd. Kanhei dealt a push blow as a result of which I fell down and lost my sense. and that I found there blood when I regained my sense.”

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The cross-examination of P.W.2 and 4 in Paragraph-3 which also relevant is extracted hereunder;

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I have not stated before police that the accd. persons abused her in obscene language outside out house and that they abused in obscene language inside the house and that accd. Kanhei dealt push and pull to P.W.5 and that the P.W.3 sustained injury as she fell down and that accd.Kanhei threw her on the ground and that she sustained bleeding injury as she fell down on the ground.

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xxx xxx xxx”

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The evidence of the I.O.-P.W.5 to appreciate the evidence of P.W.3 the injured in its proper prospective in crossexamination is extracted hereunder;

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I examined Madhab Swain (P.W.2). He has not stated before me that accd. Kanhei dragged the complainant and threw her on the inner courtyard P.W. has not stated before me that accd. Kanhei dealt a push blow on her neck and she fell down facing down ward lost her sense and that when she regained her sense and found bleeding on her body. I examined P.W.4 (Durga Samal). He has not stated before me that all the

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G.A. No.66 of 1997 Page 5 of 7

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accd. persons abused inmates of the house in obscene language and that they entered inside the house and that accd. Kanhei dealt a push blow and dragged her out and threw her on the court yard and that she sustained bleeding injury and that she and other ladies lifted her and gave her first aid.

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xxx xxx xxx”

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[P.W.2 occurrence witnesses]

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Learned counsel for the State, Mr. Gaya submitted with vehemence that the victim has supported the prosecution in material particulars and the alleged contradiction ought not to have weighed with the Court as such the judgment being perverse on the face of it is liable to be set aside.

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It is the contention of the learned counsel for the State that the findings of the learned trial Court are based on surmises and conjectures and militate against the weight of materials on record and states that in the case at hand, the materials on record unerringly point to the guilt of the accused-Respondents and the only conclusion that is possible on the basis of evidence on record, is that the Respondents are guilty of committing the alleged offence. Hence, the judgment of acquittal is unsustainable.

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On a conspectus of materials on record, this Court concurs with the finding of the learned Trial Court that there is discrepancy in the evidence of the injured and the independent witnesses and also taking into account the evidence of P.W.5I.O., this Court finds that there is no perversity in appreciation

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Page 6 of 7

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G.A. No.66 of 1997

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by the learned Trial Court warranting interference with the judgment of acquittal.

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Hence, the Appeal being devoid of merit is dismissed. 20. The bail bond of Respondent stands cancelled and sureties are discharged.

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Accordingly, the G.A. stands disposed of.

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(V. NARASINGH)

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Judge

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Orissa High Court, Cuttack,
Dated the, 21 st November, 2023/Soumya/Santoshi

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Signature Not Verified

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Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 29-Nov-2023 21:00:53

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G.A. No.66 of 1997 Page 7 of 7

State v. Kanhei

Case brief

What is this about?

What did the court decide?

State v. Kanhei

Case brief

What is this about?

What did the court decide?

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