BRAHMA NAIK Vs. RAM KUMAR AGARWALLA AND ORS.
HIGH COURT OF ORISSA
Ram Kumar Agarwalla And Ors.
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G.K. Misra, C.J. -
(1.) THE prosecution case is that the informant Brahma Naik was given possession of the disputed lands in a proceeding under Section 145. Cr. P. C., to which Ram Kumar Agarwalla, opposite party No. 1 was a party. Possession was given on 10 -12 -1968 and Brahma Naik continued in possession and raised paddy crops on that land. On 16 -11 -1969 accused Ram Kumar Agarwalla and ten other persons employed in the rice -mill came in a body and removed the paddy sheaves which had been cut and were about to be taken away by the petitioner and his men. causing grievous injuries by fracturing Brahma Naik's left wrist and other injuries to Nrupa Naik son of Brahma Naik. The defence of Ram Kumar Agarwalla was that the informant Brahma Naik was illegally cutting paddy from Ram Kumar's land and on his protest Brahma Naik left the place after creating some disturbance. The paddy was grown by Ram Kumar Agarwalla on his own land and accordingly he lodged protest when Brahma Naik tried to remove the same. The case was originally tried by Shri V. V. R. Sharma, Assistant Sessions Judge, Bangarh. He had examined about seven witnesses. As he was transferred the case was subsequently taken up by Sri N. Sengupta. On the demand of the accused, there was a de novo trial. The learned Assistant Sessions Judge, after examining the materials on record gave benefit of doubt to the accused persons and recorded an order of acquittal. It is against the judgment dated 8 -5 -1972 that this Criminal Revision has been filed. As to the jurisdiction and power of this Court in a Criminal Revision against an acquittal, there has been series of Supreme Court decisions. Its ambit is very narrow as would appear from Sec, 439(4) Cr. P. C. itself. It lays down that nothing in this section shall be deemed to authorise the High Court to convert a finding of acquittal into one of conviction. In : 3SCR412 (K. Chinnaswamy Reddy v. State of Andhra Pradesh) their Lordships observed thus in paragraph 7:
It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought lit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant, miscarriage of justice. Sub -section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised, It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may, however, indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be : where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding, of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal.
(2.) MR . Mohanti for the petitioner raised two contentions:
(1) The Assistant Sessions Judge. Shri N. Sengupta illegally allowed the accused persons to utilise the evidence recorded by his predecessor for the purpose of contradiction under Section 145 of the Evidence Act.
(2) Though at one stage in his judgment he came to the conclusion that the accused persons removed paddy from the lands of the informant which he got possession of in the proceeding under Section 145, Cr. P. C. ultimately in contradiction to his own finding he gave benefit of doubt to the accused persons.
The first contention that the evidence recorded by the predecessor Assistant Sessions Judge is wholly inadmissible and is non est, and cannot be utilised, even to contradict the statements of the same witnesses before the successor Judge in the same proceeding is a fantastic contention which has no legal sanction. Under Section 145 of the Evidence Act, a witness may be cross -examined as to previous statements made by him in writing or reduced to writing and relevant to matters in question, without such writing being shown to him. or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
The statements of the prosecution witnesses recorded by the predecessor Assistant Sessions Judge are former statements of the witnesses who were subsequently examined after the de novo trial, though in the same proceeding. These statements can be used for contradiction under Section 145 of the Evidence Act. There is no logic in the contention that because there was a de novo trial those statements must be treated as if non -existent or inadmissible.
(3.) THE second contention is equally without substance. The learned Assistant Sessions Judge examined the question whether the accused removed the paddy from the land belonging to the informant or from his own land. After some discussion, though somewhat unsatisfactory, the reached the ultimate conclusion that the prosecution failed to establish beyond reasonable doubt that paddy was removed by the accused from the land belonging to the informant. The finding is based on assessment of evidence. However unsatisfactory that finding may be. the High Court has got no jurisdiction to interfere with such a finding in revision against acquittal. There is no criticism that the finding is based on inadmissible evidence or has excluded from consideration admissible evidence. It is a question of assessment of evidence, and as has already been said, law is well settled that the High Court is not to interfere where the judgment is based purely on assessment of evidence in a revision against acquittal.;
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