HALADHAR BHOI Vs. STATE OF ORISSA

JUDGEMENT

(1.) This revision is directed against the order of acquittal in G. R. Case No. 353 of 1995 (T. R. No. 1281/95) passed by the learned S.D.J.M., Rayagada as per the impugned judgment dated 23.3.1999. State having not preferred any appeal, the informant has preferred this revision and the accused persons are respectively opposite party members 2 & 3.

(2.) IT is the case of the prosecution that on 6.10.1995 in the evening hours at about 7 P.M. accused persons were found inside the Employees club premises of J. K. Paper Mill. Some of the rooms of the club house were found open and two locks and a dismantled television set were found inside the club room and that accused / opposite party No. 3, P. Jagadiswar Rao while escaped the other accused viz., DilipvKumar Rajguru (O. P. No. 2) found inside the premises and handed over to the police. On completion of investigation charge -sheet for the offence under Sections 457/380 read with Section 511/34,1.P.C. was submitted and the charge was framed accordingly. Accused persons took the plea of denial. Prosecution examined nine witnesses whereas the accused persons examined themselves as D.Ws. 1 and 2. Prosecution has also relied on the seizure list and the zimanama which have been marked as exhibits.

(3.) IN course of argument, learned counsel for the petitioner contended that the trial court did not properly appreciated the evidence of P.Ws. 1 and 2 and wrongly acquitted them. After placing before this Court the evidence on record, he however was satisfied that a case for the offence under Sections 457/380, l.P.C. or attempt to commit such offences is not clearly made out. Accordingly, while conceding to that extent, learned counsel for the petitioner argued that the evidence of P.Ws. 1 and 2 and the other witnesses have remained unchallenged that the accused persons were found inside the club premises. Since their entry into the premises and remaining there unauthorisedly is purely making out a case of criminal trespass punishable under Section 447, l.P.C. and, therefore, when the accused persons have been charged for the offence under Section 457, l.P.C. learned S.D.J.M. should not have acquitted them and should have convicted them for the offence under Section 447, l.P.C. He further argued that since this Court is in seisin of the matter because of the aforesaid illegality committed by the trial court as aforesaid, it is but appropriate to exercise the revisional jurisdiction to direct for a retrial in accordance with law, Learned counsel appearing for the accused persons on the other hand while highlighting the limited scope of the revisional court to interfere with the order of acquittal at the instance of the informant also argued that a case for the offence under Section 447, l.P.C. is not at all made out in view of the discrepant evidence of P.Ws. 1 and 2 besides the unchallenged evidence of the D.Ws. 1 and 2. Both the parties have referred to and relied on some reported decisions in support of their respective contentions.