JANARDAN PANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) PETITIONER No.1, Janardan Panda stood trial for commission of offence under Sections 304, 330, 109, 342, 201 and 218 of the Indian Penal Code and petitioner No 2 Daridaparti Mahakud stood trial for commission of offence under Sections 304, 390, 342 and 201 of the Indian Penal Code in an occurrence that occurred at Deogarh Police Station on 3 -8 -1979. Petitioner No. 1, Janardan Panda was convicted under Section 218 of the Indian Penal Code and was sentenced to pay a fine of Rs.1,OO0/ -, in default to undergo rigorous imprisonment for four months. Petitioner No. 2, Dandapani Mahakad was convicted under Sections 330 and 201 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/ - in default, to undergo rigorous imprisonment for four months, for commission of offence under Section 330 of the Indian Penal Code and to undergo rigorous imprisonment for six months commission of offence under Section 201 of the Indian Penal Code (both the sentences to run concurrently) by the judgment of the Assistant Sessions judge, Sambalpur, in Sessions Trial No. 61(4)/S. of 1980. Both the petitioners were acquitted of the other charges, in appeal. The Additional Sessions Judge confirmed their conviction and the sentences imposed in Criminal Appeal No. 78 of 1980. Hence this revision.

(2.) THERE was a theft in the temple of the Raja (so -called) of Deogarh. The Officer -in -charge (P.W.9) directed the petitioners to make an investigation. The petitioners went to the village of Dabananda, who was a field servant of the Raja. On 3 -8 -1978 they made a search of the house of Debananda and seized certain articles Debananda was brought to the police station around 2 p.m. As the Officer -In -Charge was engaged in the investigation of a dacoity case in connection with which the Superintendent of Police was to visit the Police Station for supervision, he directed the petitioner No 2, Dandapani Makakud to take up further follow up action. Around 3 p.m., Banamali, a brother of Debananda arrived at the police station with food for his brothers After taking food Debananda .requested his brother to ask his family members to bring him some clothes. Around evening his wife and others reached the police station. They were informed that Debananda had gone out to ease himself. Till mid night when he did not return, they left the police station and went out in search of him However, Debananda was not traced. Sometime in the evening, the Secretary to the Raja (P.W.6) informed at the police station that Debananda was not involved in the temple theft case and the articles recovered from his house were given to him by the Rani (so -called) and he should be let off. He was informed around 9 pm. that Debananda had left the police station. On the 4th also there was no trace of Debananda.

(3.) NO question of law is involved in this revision. The case rests purely on appreciation of evidence and circumstances. The Courts below have concurrently believed the eye -witness (P.W.3) despite taking note of the alleged discrepancies, improbabilities and contradictions in his version. In fact both the Courts below have undertaken a lengthy discussion of the evidence to reach their conclusions. Ordinarily, in revision, such findings which rest purely on appreciation of evidence, are not open to challenge. This Court does not ordinarily enter upon a fresh appraisal of the evidence unless the findings are alleged to be perverse or contrary to law. However, Mr. R. Mohanty, the learned counsel for the petitioners, has strenuously argued for re -appraisal of the evidence. He has sought to draw my attention to some infirmities in the evidence which, according to him rendered the evidence unacceptable. He has urged that having regard to the conduct of the prosecution witness No.3 the alleged -eye -witness, his delayed disclosure (after 20 days), the weakness in his evidence, he was not a witness of truth. He has urged that having regard to the fact that it was evening and the electric supply had been cut off and the doors of the police station were ajar, the witness could not have seen what was happening inside, if in fact he did came to see through the doors which, according to the witness, were completely closed but there was a gap of four inches in between. The witness admitted in his statement before the Magistrate that the inside was not visible. The learned counsel has submitted that it was evening. When there was no light, the assertions of the witness that he witnessed the assault on Debananda by petitioner No 2, was unbelievable. The Courts below have adverted to the that the witness fold before the Magistrate .The inside of the room was not clearly visible. Hence this argument falls to the ground. It has been urged that P.W 3, had been to the fields and he could not have been present at the police station at the time he claimed to be. Having regard to the mental calibre of the witness, we cannot expect that he was deposing at that time with mathematical precision. It was an early August evening There would be visibility still around 6 pm Even if the sun had set, visibility would still be there for sometime until complete darkness enveloped.