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ORISSA HIGH COURT
D. Dash, J.
State of Orissa —Appellant
versus
Nilapa Adeya Reddy —Respondent
Government Appeal No. 13 of 1996
Decided on 14.11.2014
Counsel for the Parties:
For the Appellant: A. K. Mishra, S.C.
For the Respondent:G. K. Behera, Advocate.
IMPORTANT POINT
Appellate Court should not reverse acquittal merely because another view is possible on evidence.
Headnote:Indian Penal Code, 1860—Section 395—Dacoity—Appeal against acquittal—Trial Court on detailed analysis of evidence has found exaggeration and embellishment—These discrepancies are not minor so as to be ignored saying that those normally occur—Such discrepancies being material, those throw doubt on veracity of prosecution case particularly as regards presence of respondent and role as projected—In view of inconsistency in evidence of witnesses and also with FIR version, Trial Court’s finding that prosecution has not been able to prove beyond reasonable doubt as regards presence and role of respondent in house at relevant night with other culprits is not found to be reasonable. (Paras 10 and 11)
Result: Appeal dismissed.
JUDGMENT
D. Dash, J.—The State in this appeal has called in question the order of acquittal dated 31.8.1995 passed by the learned Assistant Sessions Judge. Chatrapur in S.C.No. 51/345 of 1992 acquitting the respondent of the charge under Section 395, I.P.C.
2. Prosecution case is that on 10.8.1991 night when informant PW 1 and his wife PP3 were sleeping in the bedroom of their house and his married daughter with her husband. PWs 2 and 4 respectively were sleeping in another room, around 11.30 p.m. he heard the sound of breaking open of the entrance door. No sooner did he wake up, he saw four culprits including respondent forcing their entry into the room. It is stated that the respondent guarded him and warned him not to make any hullah for else to face dire consequences. At that time another culprit closed his mouth and two others went and caught hold of his wife and snatched away the gold necklace from her person. It is also stated that one of them assaulted his wife. Next they went to the other room and broke upon the same, when the informant’s daughter and son-in-law started running away through the backside door of the room. It is next stated that one more culprit was guarding the house from backside. So, he chased the son-in-law of the informant but failed in his attempt. The daughter of the informant had then concealed her presence underneath a straw heap. The culprits searched for her by focusing torch light and finding her brought to the house. They took away the gold necklace, gold chain and gold ring which she was wearing. She was then asked to disclose the place of concealment of property. Out of fear to life he pointed out the box kept in the house which was then broken and cash of Rs.10,000 lying inside was looted away. All the culprit thereafter decamped carrying away the properties.
The matter could not be reported at the police station immediately because it was dead of night. So on the next day information was given to the police station which initiated registration of the case. Police visited the spot and saw the damage caused to the door of the rooms and other articles. Police also seized damaged articles lying. The respondent was arrested and when other culprits were not traced out, charge-sheet was submitted against the respondent for offence under Section 395 I.P.C. and accordingly the respondent faced the trial.
3. During trial the plea of the appellant is that of complete denial and false implication. It is stated that his child was being treated by the informant who treats patients by giving herbal medicines as an Ayurved practitioner and due to wrong treatment, the child expired for which he had abused the informant. Therefore, bearing grudge on account of the same, the present case has been foisted against him.
4. During trial, prosecution has examined in total nine witnesses, when the defence has examined one. As already stated PW1 is the informant in whose house the dacoity was committed PW3 is his wife, whereas PWs 2 and 4 are the daughter and son-in-law respectively. Thus, all these witnesses have been examined as inmates of the house. PW1 being the nephew of the informant has come to the dock as PW6 and his house is also situated nearby. Another co-villager has been examined as PW5. The Investigating Officers are PWs 7 and 8 whereas the doctor has also been examined in the case as PW9.
5. The Trial Court upon evaluation of evidence of PWs 1, 2, 3 and 4 and also that of PW5 has found those to be inconsistent with one another and to be differing on material particulars. So, on the face of the admitted case that this respondent much earlier was known to PW1 and was in visiting terms to his house having some reason for PW1 to be annoyed with him, the evidence on record has not been found to be satisfactory and accordingly it has been found that there has been failure on the part of the prosecution to establish the charge by way of clear, cogent and reliable evidence. This Trial Court has not believ
