ORDER
Dipak Misra, J.
1. In this application under Section 401 of the Code of Criminal Procedure, the petitioner impugns the judgment passed by the learned First Additional Sessions Judge, Ganjam at Barhampur in Criminal Appeal No. 64/93 setting aside the judgment of conviction passed by the learned Judicial Magistrate, First Class, Aska, in ICC Case No. 56/87 wherein the accused persons-opposite parties were convicted for offences under Section 325/34 IPC and sentenced to undergo R.I. for six months each.
2. The accusations that led to the trial of the opposite parties may be stated as follows:
The case of the complainant before the learned Magistrate is that the complainant and the accused persons belong to village Dongapadar. The complainant Gaya Badtya has a thrashing floor known as Kamarapadar and on the date of occurrence hay was stored (sic) thereon. On 10-3-1987 at about 3 p.m. ” both the accused persons accompanied by two others, namely, Nira and Rabi came to the thrashing floor and scattered the hay. The incident was informed by Amulya the son of the complainant to his father. Protest being raised by the father and son the accused persons being enraged assaulted them for which they sustained fractures on their persons: The injured persons were removed to the Dongapadar hospital and subsequently a report was lodged at Pattapur Police-station. The police on investigation submitted charge-sheet against Nira and Rabi but the present accused persons were left out.
3. The police had not sent the complainant and his son for X-Ray examination though suggested by the Medical Officer in his report. They were complied to go to Berhampur and got themselves examined by Private Doctor and from the X-Ray report, it could be detected that they had sustained fractures. Since the police had left out the opposite parties Banchha Badtya and Udaya Badtya, the present petitioner as complainant instituted acomplaint case which was registered as ICC No. 56/87, wherein the learned Magistrate took cognizance of offences under Sections 341, 325, 426 IPC. However, charges were framed under Sections 325,426/34 IPC.
4. The accused persons pleaded that there was dispute with regard to the thrashing floor and on the very day of occurrence, the complainant and his men had assaulted the accused persons and to escape from their liability, this false case has been foisted against them.
5. To substantiate its cases, the prosecution examined seven witnesses and on behalf of the defence two witnesses were examined. P.W. 1 is the complainant. P.Ws. 2,3,4 are the eye-witnesses to the occurrence, P.W.5 son of P.W. 1 is the insurer, P.W. 6 is the Medical Officer who examined the injured persons and P.W. 7 is the Doctor who had taken X-Rays of the hand of the complainant.
6. The learned Magistrate found the present petitioners guilty under Section 325/34 IPC and sentenced them to undergo R.I. for a period of six months each. He did not find the accused persons guilty of offences under Section 426/34 IPC, and accordingly, passed an order of acquittal. Being aggrieved by the order of conviction, the present petitioners preferred Criminal Appeal No. 64/93 which was ultimately heard by the Additional Sessions Judge, Ganjam at Berhampur, who on reappraisal of evidence on record, came to hold that the accused persons were entitled to benefit of doubt* and accordingly, set aside the judgment of coriwtion and sentence.
7. At the commencement of hearing, the counsel for opposite parties. Sri A. K. Choudhury, raised a preliminary objection with regard to maintainability of the Criminal revision. His contention is that the challenge in the revision is in effect the judgment of acquittal passed by the learned First Additional Sessions Judge, Ganjam and therefore, an appeal against acquittal under Section 378(4) should have been preferred after obtaining leave as enjoined in the aforesaid provision. Sri G. B. Jena, learned counsel for the petitioner on the other hand contended that as the order passed by the First Additional Sessions Judge is being impugned and prayer is to set aside the same, the criminal revision is maintainable. It is settled in law that no revision lies at the instance of a complainant against an order of acquittal whether the same has been passed at the instance of the original court or the appellate Court. It has been decided by this Court in the case of Md. Nasrul Haque v. Rafique Khan reported in (1996) 10 OCR 250 as under :
A combined reading of Sub-section (1) and Sub-section (4) makes it clear that the expression ‘such an order of acquittal’ as appearing in Sub-section (4) refers to an order of acquittal mentioned in Sub-section (1), which order of acquittal shall include the original as well as the appellate order of acquittal. Just as the State has been given a right of appeal from an original or appellate order of acquittal, in a given case a private party has also been given a right to appeal from the same kind of order of acquittal. The only limitation placed by the Legislature on the right conferred upon the private party in such a case is the limitation in the form of special leave to be obtained in appealing against the order of acquittal. Except this limitation there is no other distinction between the right of appeal conferred upon a private party in a specified case. The expression as referred to above refers to ‘an order of acquittal’ passed by any Court other than a High Court either in exercise of original jurisdiction or appellate jurisdiction. To restrict the benefit only to original order and appellate order of acquittal would lead denial of a forum to the private prosecutor and is never the intention of the legislature.”
Thus it is clear that an appeal lies against an order of acquittal passed by the appellate court after obtaining leave from the High Court. While this preliminary objection was heard the counsel for the petitioners in course of hearing accepted the position of law that an application for leave should have been filed as the order of acquittal was appealable. Mr. Choudhury, learned counsel appearing for the opposite parties also agreed that he had no objection if the revision was converted to an appeal. Taking into consideration the totality of the facts and circumstances, I permitted the counsel for the petitioner and the opposite parties to argue the matter on merits as an appeal and accordingly, the counsellor both sides argued this revision as an appeal. Sri Jena appearing for the complainant has submitted that the approach of the appellate court is unjustified as he has not appreciated the factual backdrop in regard to existence of enmity between the parties in proper prospective and has given undue emphasis on enmity. Elaborating the said submission, Sri Jena points out that the enmity is a double edged weapon and the appellate court in his re-appraisal of evidence has not done proper scrutiny and this improper scrutiny has made his judgment absolutely., vulnerable. Sri Jena further submitted that the reversal of findings by the learned First Additional Sessions Judge is not supported by cogent reasonings and in absence of such reasonings the order of acquittal suffers from incurable infirmity calling for interference by this Court. The counsel for the complainant has also submitted that the discrepancies, contradictions and variations in the evidence which have been highlighted by the learned appel- late court are really minor, trivial and insignificant and on the basis of these the judgment of the learned ! Magistrate should not have been unsettled. His last submission is that in the instant case, the accused persons were not entitled to the benefit of doubt and the reasonings for the same are not based on cogent materials and that makes the order of acquittal absolutely unsustainable.
8. Sri Choudhury appearing for the accused i persons has supported the judgment of the appellate court and has further submitted that the view taken by the appellate court is not perverse, or unreason- able. His submission is that the accused persons are entitled to benefit of doubt and the judgment taken ; in its entirety does not suffer from any infirmity.
9. The learned Magistrate analysing the oral and documentary evidence has come to hold that the complainant was in possession of the thrashing floor. In this connection, he has given emphasis on Ext. 8 and has not accepted Ext. E, the order of | settlement passed in O.E.A. Case No. 238/86 in favour of the accused persons. He has taken the view that for the limited purpose of the criminal cases, the complainant was in possession. However, he was of the view that the ingredients of offence under Section 426 were not satisfied. While dealing with the offence under Section 325/34 IPC, the learned Magistrate has placed reliance on the evidence of P.W. 1 who had deposed that accused Banchha had caught hold of Gaya Badtya from behind and. thereafter dealt a lathi blow on his right hand for which his little finger was injured. Though P.Ws. 2,3 and 4 had not stated specifically about the lathi blow given by accused Banchha, the learned Magistrate, taking into consideration that five years had elapsed from the date of occurrence and therefore, the discrepancies were bound to occur, took the view that prosecution witnesses were constant in material particulars and there was nothing on record to discredit their evidence. Relying on the medical reports Exts. 4 and 5, he formed the view that the injury on P.W. 1 ‘s left thumb was caused by Banchha. With regard to the injuries on the left hand and left head of Amulya, the Magistrate scrutinised the evidence of P.Ws. 2, 3 and 6 and concluded that the allegation with regard to assault on Amulya, as far as the petitioners are concerned, the prosecution has failed to prove its case. These findings of the learned Magistrate were assailed before the appellate court. The learned appellate Judge on assessing the evidence of P.W. 1, the complainant himself, has pointed out that the complainant who has been examined as P.W. 1 in G. R. Case No. 67/87 had stated that Banchha only caught hold of him from the back and had not mentioned with regard to the assault part by Banchha either in the F.I.R., which has been exhibited as Ext. 6 in the complaint case, or in his evidence in the G. R. case. The appellate court also compared his statement, with his earlier depositions. On reappreciation of evidence, the appellate court has taken the view that P.W. 1 is not a trust worthy witness and his testimony cannot be regarded as truthful. While dealing with the evidence of P.Ws. 2, 3,4 and 5, the appellate court has taken into consideration their apparent discrepant versions with regard to the role played by the present petitioners and has opined that their testimony is not worth credence. Apart from the analysis of evidence, the appellate court has also taken into consideration the long standing enmity between the parties and the defence plea that that the complainant and his son were aggressors and the accused persons had received injuries. Scrutinising the materials on record, the appellate court has taken the view that it is not safe on the basis of their testimony to order conviction. 1 have perused the evidence and find that the analysis made by the appellate court does not appear perverse or unreasonable. On evaluation of the evidence, it cannot be said that the order of acquittal passed by the learned appellate court suffers from any illegality, manifest error or perversity. The view taken by him is quite reasonable and plausible.
10. It is an accepted position of law that an accused is presumed to be innocent and the presumption of innocence which is an essential part of our criminal jurisprudence is further reinforced when an order of acquittal is passed.
11. In an appeal arising out of an order of acquittal, the Court is required to see whether the view taken by the acquitting court is plausible. If on materials on record, two views are possible, the view which goes in favour of the accused, the same is to be taken. In this connection, reference may be made to the decision rendered in the case of State of U. P. v. Samman Dass, reported in AIR 1972 SC 677 : (1972 Cri LJ 487), wherein the apex court held as follows (at page 685 of AIR):-
…There are, however, certain cardinal rules which have always to be kept in view in appeals against acquittal. Firstly, there is a presumption of innocence in favour of the accused which has to be kept in mind, especially when the accused has been acquitted by the Court below; secondly, if two views of the matter are possible, a view favourable to the accused should be taken, thirdly, in case of acquittal by the trial judge, the appellate Court should take into account the fact that the trial judge had the advantage of looking at the demeanour of witnesses; and fourthly, the accused is entitled to the benefit of doubt. The doubt should, however, be reasonable and as observed recently by this Court, the doubt should be such which rational thinking men will reasonably, honestly and conscientiously entertain* and not the doubt of a timid mind which fights shythough unwittingly it may be or is afraid of the logical consequences, if that benefit was not given…”
Tested by the touch stone of aforesaid principles, the reasonings given by the learned Additional Sessions Judge are not unreasonable, or perverse. On the contrary, his view is a plausible one. This is not a case where it can be held that the conclusions arrived at by the appellate court are not possible. I am not pursuaded by the submissions of the learned counsel for the petitioner to unsettle the findings recorded by the learned appellate Judge.
In the result, the criminal revision is dismissed.
