Citation-2

1.              It is only where the Court finds that no incriminating material has surfaced that the accused may not be examined under S. 313.  If there is material against the accused he must be examined.  State v. Sukhdeo Singh AIR 1992 SC 2100 Cr.P.C S. 313. 

IPC S. 90, 375: 

2.              Stroud’s Judicial Dictionary defines Consent at page 510: -

       “Consent is an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side.”

       In Holman v. The Queen (1970) WAR 2 it was held that “There does not necessarily have to be complete willingness to constitute consent.  A woman’s consent to intercourse may be hesitant reluctant or grudging, but if she consciously permits it there is consent.”

       Stephen, J. in Queen v. Clarene (1988) 22 QBD 23 observed – “It seems to me that the proposition that fraud vitiates consent in criminal matters in to not true if taken to apply in the fullest sense of the word and without qualification.  It is too short to be true as a mathematical formula it true.”

       In Rao Harnariain Singh v. State AIR 1958 Punjab 123 it was observed:

       A mere act of helpless resignation in the face of inevitable compulsion acquiescence, non-resistance or passive giving in when volitional faculty is either clouded by hear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law.  Consent on the part of a woman as a defence to an allegation of a rap, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge or the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent. 

       Submission of her body under the influence of fear or terror is not consent.  There is a difference between consent and submission.  Every consent involves a submission but the converse does not follow and a mere fact of submission does not involved consent.  Consent of the girl in order to relieve an act of a criminal character like rape, must be an act or reason, accompanied with deliberation after the mind has weighed as in a balance, the good an evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure.”

       In re, Anthony alias Bakthavatsala, AIR 1960 Mad 308 it was observed:

       A woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted.  Consent implies the exercise of a froe and untrammelled right to forbid or with hold what is being consent to, it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. 

       Rape-misconception of fact–Defence of prosecutrix that she gave consent under misconception of fact’–Accused expressed love and promised to marry prosecutrix on a later date–Prosecutrix started cohabiting with accused aware of the fact that they belonged to different castes and proposal of their marriage will be opposed by their family members as yet, prosecutrix started cohabiting with accused continuously and becomes pregnant.  Consent given by prosecutrix to sexual intercourse cannot be said to be given under misconception i.e. fact of promise to marry, but because prosecutrix also desired for sex-False promise is not a fact Acquitted–Uday v. State of Karnataka (2003) 25 OCR (SC)–1. 

3.              A prisoner cannot be tried at the same trial for receiving or retaining and habitually receiving or dealing in stolen property.  The proper course is to try the accused first for the offence U/s. 411 and if he is convicted, to try him under S. 413 putting in evidence the previous convictions under S. 411 and proving the finding of the rest of the property in respect of which no separate charge U/s. 411 could be made or tried by reason of the provisions of S. 453 of Cr.P.C.  Empress v. Uttam Koondoo and another vol. 8 (1882) Indian Law Reports. 

       One person cannot be tried for offence U/s. 411 and 413 in the same trial.  If S. 411 proved thereafter he can be tried for 413.  Gopinarayan v. State (2003) 25 OCR 21 (IPC S. 411, 413). 

4.              CrPC- Sec. 319.

       The section vests wide powers in the trial Court to proceed against any person who is not an accused if it appears from the evidence that such person has committed any offence for which he can be tried together with the accused in the Court.  The wider amplitude of the power necessarily requires due caution in its exercise. 

       The order to be passed under Section 319 is nothing but a cognizance order and the trial Court is required to ascertain if there is prima facie case to proceed against the person concerned.  At the stage of taking cognizance the Magistrate is not required to scrutinise the materials with a view to ascertain definitely and conclusively at the case against the person proposed to be included as an accused is well established.  There is a caution that innocent persons should not be harassed. 

       Power vested on the trial Court can be exercised at the instance of the party or suo moto.  Application moved by the complainant cannot be dismissed on the ground that it is not supported by public prosecutor.  Kumar Routray @ Laxmidhar Baliar v. State of Orissa Voll 33 (1991) O.J.D. 6 (Criminal)

5.              The purpose of examination U/s. 313 is to bring the substance of accusation to the notice of the accused.  Indrajit v. State of Orissa vol 33 (1991) OJD 12 (Criminal) (CrPC S. 313.)

6.              Ingredients of offence U/s. 412 of I.P.C:

(1) Property is stolen property.

(2) It is connected with Dacoity

(3) Accused received or retained it.

(4) Such receipt or retention is dishonest; and

(5) Accused know or had reason to believe that the property received or retained by him from a person who belong to gang of dacoits.   Prasad Behera v. State vol 33 1991 (OJD) 28 (Criminal) S. 412 IPC. 

7.              Magistrate has power to grant interim maintenance in an application U/s. 125.  Ordinarily the interim maintenance should be granted from the date of the order or from the date of application for interim maintenance.  Grant of interim maintenance from any anterior date – Reason to be recorded.  Smt. Sabita Sahoo v. Captain Khirod Kumar Sahoo Vol 33 (1991) OJD 30 (Criminal)

8.              Delay in lodging FIR effect – No hard and fast rule can be laid down for rendering prosecution case doubtful in the event of delay.  The condition of the informant, the nature of injuries sustained, efforts made to provide medical aid.  Distance of the hospital and the police station etc have to be taken into consideration, while considering delay aspect.  No mathematical formula can be fixed and it depends upon facts and circumstances of each case.  S. 154 CrPC. 

       S. 174: Inquest report.  It is not necessary to mention in such report the manner in which the incident took place or the names of the accused.  The basic purpose of holding inquest is to report regarding apparent cause of death, namely whether it is suicidal, homicidal, accidental or by some machinery.  CrPC   

       S. 134 IEA:  Non examination of some witnesses on the ground of being own over by the accused – Three eye who were injured were examined during trial.  Held non examination of some witnesses cannot lead to the inference that prosecution case was not correct.  No particular number of witnesses are required to prove any fact.  Amar Singh v. Balvinder Singh and others (2003) 25 OCR (SC) 60. 

9.              Dying declaration was recorded by doctor but not in question answer form.  It was recorded in a narrative form to the question put by the doctor as to how the incident took place.  Held, it does not affect the probative value of such declaration.  Only on dying declaration without corroboration conviction can be done.  State of Karnatak v. Shariff (2003) 25 OCR (SC) -72 Sec. 32 Evidence Act (IEA). 

       It cannot be said that unless the dying declaration is in question – answer form it could not be accepted.  Having regard to the sanctity attached to a dying declaration as it comes from the mouth of a dying person though, unlike principle of English Law he need not be under apprehension of death.  It should be in the actual words of the maker of the declaration generally, the dying declaration ought to be recorded in the form of questions and answers but if a dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker, the mere fact that it is not in question – answer form cannot be a ground against its acceptability or reliability.  The mental condition of the maker of the declaration, alertness of mind, memory and understanding of what he is saying are matters which can be observed by any person.  But to lend assurance to those factors having regard to the importance of the dying declaration, the certificate of a medically trained person is insisted upon.  Ram Bihari Yadav v. State of Bihar & others (1984) 4 SCC 517. 

10.            Scribe of the FIR not examined.  FIR does not indicate the names of the accused.  Since the scribe is not an eye witness and the witness on whose version the FIR has been recorded does not know the accused.  Non-mention of names of accused in F.I.R or non-examination of scribe is not material.  Sec. 154 CrPC.

       Delay of 47 days in holding TI parade.  Since the injured witness had seen culprits from close proximity, facial impression of the culprits would create a deep impact on his mind.  Held delay cannot be a ground to reject the testimony.  Sec. 9 I.E. A  Anil Kumar v. State of UP (2003) 25 OCR SC 106. 

11.           IPC Sec. 95 – Right of private defence. An accused taking the plea is not required to call evidence, he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself.  Accused need not prove his plea beyond reasonable doubt.  But he can discharge his burden by showing preponderance of probabilities maxim “falsus in uno, falsus in omnibus” has no application in India.  Witnesses may be relied upon for conviction of some and not relied upon for others.  Held acquittal to some is no ground to acquit others.  (2003) 25 OCR

       At the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused.  It is not the province of Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its Revisional Jurisdiction which is a very limited one. 

       The scope of enquiry U/s. 202 of CrPC is extremely limited- Limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint – (i) on the materials placed by the complainant before the Court, (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.  In fact it is well settled that in proceedings under S. 202 the accused has got absolutely n locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.  Smt. Nagawwa v. Veeranna Shivalingappa Konialal and others AIR 1976 SC 1947 Scope of enquiry u/s. 202 Cr.P.C. 

12.           Stepmother can claim for maintenance under S. 125 CrPC.  Krupasindhu Pradhan v. Kainta Pradhan   vol 33 (1991) OJD 58 (Criminal) S. 125 CrPC

13.           Proceeding under S. 144 cannot be converted into a proceeding u/s. 145 after the expiry of the statutory period of two months provided in sub-Section (4) of S. 144 CrPC.  Balaji Sahu v. Pattika Parsu vol 33 (1991) OJD 59 (Criminal) Sec. 144 & 145 Cr.P.C.

14.           The only limitation is that the Magistrate who issued the summons can alone excise the power and not any other Magistrate i.e. Sec. 205 confers the power to dispense with personal attendance only on a Magistrate issuing a summons. 

       Whether personal appearance of the accused is mandatory in a case where summons has been issued.  Held in a case where the Magistrate has issued summons to the accused it is not mandatory for the letter to personally appear in Court before filing the application U/s. 205 (1) CrPC to dispense with his personal attendance. 

       At which stage Sec. 205 (1) can be invoked? – At the stage where a Magistrate is considering the issue of a summons or warrant for the appearance of an accused person and no further.  Allahabad HC view in Aditya pd. Bagchi v. Jogendra Nath Maitra AIR 1948 Allahabad 393. 

       Sec. 205 (1) ordering inter locutory order.  If order not passed U/s. 205 (1) then there is no bar to pass order U/s. 317.  Somanath Mishra and another v. State Vol 33 (11991) OJD 63 (Criminal) Sec. 205 Cr.P.C.

15.           Possession of tenant when amounts to criminal trespass?

       xx1 If a person has lawfully entered the premises and remains there with the intention of: -

(i)             Taking unauthorised possession; or

(ii)           Making unauthorised use of such property.

(iii)         Fails to withdraw from such property or its possession or use when called upon to do so by notice in writing duly served on him. 

       He commits the offence.

       Notice to vacate the premises must be in writing must be given personally.  Notice to advocate cannot attract the provision. 

       There is an Orissa Amendment by Orissa Ct, 22 of 1986 to S. 441 and it is probably the xx1 portion.

       M/s. Savani Transports ltd. and another v. Kamraju Bisoi Voll. 33 (1991) OJD 68 (Criminal) (Sec 441 CrPC)

16.           Question should be asked to the accused in respect of incriminating materials for his explanation – Absence of such question and absence of opportunity for explanation – Held prejudices the accused and should not be utilised against the accused but where opportunity was available to the accused to explain material circumstances – Absence of a question to that effect would not vitiate the proceeding. 

       Defective cross-examination – Allenant not prejudiced – cannot be a cause for setting aside conviction.  Gangadhar Dehuri v. State of Orissa Vol 33 (1991) OJD 77 (Criminal).  Sec. 313 Cr.P.C.

17.           Though it is not the law that the dying declaration recorded by a police officer cannot be accepted and believed in any circumstance, but it is always a rule of prudence that the Court should try to find out why such a declaration was not recorded by a Magistrate or a doctor or any other independent person.  But in order that a dying declaration can be acted-upon it must be established that the deceased was in a fit condition to make the declaration and the declaration in question is a true version.  Kumar Malik and 2 others v. State of Orissa. Vol 33 (1991) OJD 82 (Criminal) Sec. 32 Evidence Act. 

18.           A Dialogue: - In cross-examination it has been elicited that he was an accused in some criminal case but that by itself cannot be a ground discard his evidence. 

19.           Sec. 47 (a) – Conviction under – Conviction based on the evidences of official witness only – No allegation of any animosity towards the petitioner being falsely implicated – Testimony of the witnesses cannot be disbelieved.  (1989) Vol 31 OJD 349 (Criminal) – Sukur Behera v. State  B & O Excise Act. 

20.           Sec. 47 (f) B & O Excise Act – Illicit manufacture of liquor from “Mahua” flowers – A large number of earthen pots for preparation of liquor and fermented mahua flowers seized – Materials not produced in Court – In the facts and circumstances of the case, when other acceptable evidence is on record, non-production of materials which are large in number does not affect the case – (1988) I OCR 57 – Sri Banamali Behera v. State of Orissa. 

21.           Sec. 145 Cr.P.C. – Proceeding under this section should not be initiated when parallel proceeding in civil Court is pending.  In case of emergency, party to approach civil Court for interim (injunction) arrangement.  Criminal Court is to give due weight to the decision of the Civil Court regarding title and possession in respect of the disputed land between the parties.  If dispute arises after decision of the competent Court proceeding under Sec. 107 of the code is appropriate.  Sashimani Dibya v. Bishnupriya Mohapatra Vol 33 (1991) OJD 88

22.           Sec. 439 (2) Cr.P.C- Cancellation of bail.  Cancellation of bail necessarily involves review of decision already made and existence of supervening circumstances is a desirable requirement before exercise of the power. 

       While considering an application for bail, detailed discussion of the evidence and elaborate documentation of the merit is to be avoided.  This requirement stems from the desirability that no party should have the impression that has case has been pre-Judged.  Existence of a prima facie case is only to be considered.  Elaborate analysis or exhaustive exploration of the merits is not required. 

23.           Where the offence is of serious nature the question of grant of bail has to be decided keeping in view of the nature and seriousness of the offence, character of the evidence and amongst others the larger interest of the public AIR 1990 SC 625 State of Maharastra v. Anand Chintaman Dighe.  Bail. 

24.           Prosecution report correctly discloses the offence committed of which cognizance was taken.  Mere omission to state the correct provision of the statute under which the offence was committed ipso facto would not make the talking of cognizance bad unless prejudice is caused to the accused. 

       In admissible cases should not be looked into for the purpose of forming an opinion regarding the prosecution case. 

Sec. 72 Orissa Forest Act, 1972.

       If P.R can be filed in case of non-payment of the agreed compensation amount.  Held – Yes. Jethu Prasad v. The State of Orissa Vol. 33 (1991) OJD 98 (Cri)

25.           Sec. 120 (b) Indian Railways Act 1890.

       Default sentence can be imposed U/s. 120 (b).   Md. Imdad Alli v. State of Orissa Vol. 33 (1991) OJD 101 (Crl)

26.           Exemption to the accused can be granted only if the counsel for the accused makes it a point to remain present before the Magistrate in order to represent his client if an when the case is called out.  Chhotey Lal v. State of U.P. 1985 AWC 527. 

27.           The level of interested witness is frequently used to throw cloud on the evidence.  The probation that when eye witnesses to the occurrence were interested persons, there should be corroboration to their evidence by independent evidence cannot be of universal application.  A witness is normally to be considered independent unless he/she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused to wish the implicate him falsely.  There can be no sweeping generalisation and foundation must be laid for such criticism that an innocent person is being unnecessarily dragged to face trial.  [Kedar Behera v. State 1993 CriLJ 378, 381 (Ori)] appreciation of evidence. 

28.           When there is nothing to disbelieve the evidence of official witness in the case of recovery of illicit liquor, their evidence cannot be discarded merely because, there is no other independent witness.  Sukuru Behera v. State (1989) 69 Cut LT 257 Excise case seizure witness as official witnesses only. 

29.           Ingredients of cheating

1.    Deception by the accused

2.    (a)  Fraudulently or dishonestly inducing that person

(i)  To deliver any property to person or

(ii)  To consent that any person shall retain any property or

(b)  Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property. 

30.           A Division Bench of the Orissa High Court in Rajendra v. Pramila 1993 CrLJ 3813 held that in normal circumstances issuance of distress warrant is a condition precedent for excise of the power to sentence as referred by the section.  It however deserves to be noticed and emphasised that even the language of the section does not require that after distress warrant had been issued, the wife should wait till the process visualised by the section 421 comes to an end, because all that the second part of the section requires to become operative “is execution of the warrant”....... we would further observe that in a case distress warrant may not be insisted upon, if the Court were to be satisfied on the facts of that case that such an exercise would be futile......... Sec. 125 (3) Cr.P.C.   

31.           Sec. 125 (3) Sentence of imprisonment for default of compliance of order under Section 125 (1).  Period of default exceeding one month – imprisonment for a period exceeding one month can be passed.  Bhakta Bhuyan v. Smt. Savitri Bhuyan Vol. 33 (1991) OJD 105 (Criminal). 

32.           It is true that criminal jurisprudence requires that guilt of an accused ought to be proved beyond reasonable doubt.  But doubt is not to be created in mind to acquit an accused.  Where a doubt is spontaneous and a judge does to get any explanation to resolve the doubt benefit of such doubt is to be given to the accused.  [Principle of distinguishing grain from the chaff.]

       Proof beyond reasonable doubt – Doubt when spontaneous and incapable of explanation benefit thereof goes to the accused.  Vol 33 (1991) OJD 110 (Criminal) Bhagatram Pujari v. State. 

       It is true that criminal jurisprudence requires that guilt of an accused ought to be proved beyond reasonable doubt.  But doubt is not to be created in mind to acquit an accused. 

33.           Enmity is a double edged weapon.  The same may be the motive for assault (where there is  to pending criminal case and litigation) to use it as a circumstance for believing the story of assault gravity of the litigation and period of its continuance are to be kept in view.  Durga Charan Biruli v. State Vol 33 (1991) OJD 114 Criminal.

34.           Mere acceptance of final form does not deprive the Court to take cognizance on the basis of a complaint subsequently filed.  Section 190 (1) (b) and 154 (2), 157 (2) and 173 (2) (ii) – Magistrate deciding not to take cognizance f an offence under a police report – Magistrate must give notice and hear the informant at time consideration of the final report.  Vol. 33 (1991) OJD 118 (Criminal Nalla Annapurna V. Nalla Bhagaban Rao. 

35.           The test to be applied by the Court where the Magistrate dismisses a complaint U/s. 203 Cr.P.C is as to whether the uncontroverted allegation as male Prima facie establish the offence.  The Court can take into consideration any special features which appear in a particular case to consider whether it is expedient and in interest of justice to permit a prosecution to continue because the Court cannot be utilised for any oblique purpose.  Whether in the opinion of the Court chances of an ultimate conviction are black and no useful purpose is likely to be served by allowing a criminal prosecution to continue the Court may quash the proceeding.  Informing his opinion as to whether sufficient ground for proceeding exists or not the standard of test which is to be applied finally while passing the judgment is not to be applied but the standard of test of prima facie case has to be applied.  Dubu Budu v. Dubu Bairadu voll. 33 (1991) OJD 121 (Criminal). 

36.           Railway Property Unlawful Possession Act, 1986 S. 3 (a).

       Prosecution required to prove that the property in respect of which offence is alleged is railway property and was found in possession of the accused.  In order to bring home the guilt of the accused, where prosecution is able to prove that two ingredients accused can escape criminal liability by explaining that property in his possession is either not railway property or that it came to his possession lawfully. 

       Certificate by an witness who was electrician for railway for many years that the property in question is railway property and bears a mark of “Bharatiya Railway Sampaty” is reliable. 

       Notes of a decision reported in a journal have no value of precedent either persuasive or binding vol 33 (1991) OJD 124 (Crim) State v. Jagannath Mangaraj. 

37.           Precedent – Disposal of case by placing reliance on a decision blindly is not proper.  Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases.  M.M. Das T M/s Oriental Insurance Co Ltd. V. Mrs. Durga Devi and others (2005) 30 OCR 281. /Bharat Petroleum Corporation Ltd. And another v. N.R. Vairamani and another (2004) 8SCC 579. 

38.           Issuance of process without holding preliminary inquiry U/s. 202 Cr.P.C – Legality – Issuance of summons merely on the basis of the complaint and a sworn statement made by the complainant held, illegal.  Muzaffar Ali Sajjad v. State of AP (2005) 30 OCR (SC) – 243. 

39.           Suganthi Suresh Kumar v. Jagadesham 2002 SAR (Criminal) 181 SC.

       It has been held by the apex Court that the law declared by Supreme Court shall be binding on all Courts within the territory of India as provided in the article 141 of the constitution of India. 

40.           Rajaram v. State of Bihar reported in AIR 1964 SC 828 The Hon’ble Supreme Court had occasion to analyze the provisions under Sec. 77 (2) and 78 of Bihar and Orissa Excise Act, came to conclusion the S.I and ASI of Excise Officials are empowered to investigate any offence under the Bihar Act. 

41.           If on the 61st day the challan is also filed by the time the Magistrate is called upon to apply his mind to the challan as well as the petition for grant of bail?  In view of the several decisions referred to above and the requirements prescribed by clauses (a) (ii) of the proviso read with Explanation – 1 to Section 167 (2) of the code, as no bail bond has been furnished, such an application for bail has to be dismissed because the stage of proviso of Sec. 167 (2) is over as such right is extinguished the moment the challan is filed. 

       In this background the expression “availed of” does not mean mere filing of the application for bail expressing there under willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach if the challan is filed before that, then there is no question of enforcing the right, howsoever valuable or indefeasible it may be, filing of the challan because thereafter the right under default clause cannot be exercised.  Kishore Kumar Saha V. State of Orissa (2006) 33 OCR – 63 N.Prusty,J. 

42.           Burglary is a serious crime and whenever it is detected the person concerned must be given a different punishment.  It is not proper to release the burglars on probation of good conduct.  Such sentence means no punishment and emboldens persons to commit the crime because they rightly think that they can easily escape.  Emperor v. Sardara AIR 1932 Lah 258: Sec. 457 I.P.C. 

43.           Reading of Section 1863 makes it clear that a Railway employee is at per with central Govt. Employee and hence a public servant and anything done in good faith protected under Sec. 186 Cr.P.C.  Hence an employee of the railway who did anything in discharge of his official duty cannot be prosecuted without the necessary sanction.  A Traffic Service Officer is a public servant.  Satish Chandra V. UOI and others 1997 Crl J 1210 (Delhi HC) Sec. 186 Cr.P.C. 

44.           State of Ajmer V. Shivji Lal 1959Cri LJ 1127 Supreme Court has held that Railway teachers are public servants within the meaning of Sec. 21 (9) of I.P.C.  + 186 I.P.C + 197 Cr.P.C. 

45.           Johnson Appellant v. State of Kerala Respondent 1997 Cri LJ 1228 (Kerala High Court).

       Criminal PC S. 311 – Recalling of witnesses – Re-examination of witness with an intention to undermine prosecution case – Not permissible. 

       Though the Court has power to recall and re-examine any person already examined, it could do so only when it is satisfied that the evidence of the witness sought to be re-examined is essential for the just decision of the case.  Where the evidence of prosecution witness was natural and free from infirmities and a petition to re-examine her was filed with an intention to undermine the prosecution case re-examination of such a witness was not proper. 

46.           State of Rajastan v. Bhera 1997 Cri LJ 1237 (Rajastan High Court)

(a)  Sec. 114 presumption – Power given by Sec. 114 is only in respect of inferences which has to be drawn by court.  It does not authorise the Court to legislate as to manner in which the woman beings should conduct themselves. 

47.           Dalabandhu Bisoi v. The State (1997) 12 OCR – 432 Dipak Misra Judge.

(A) Sec. 47 (a) and (f) B & O Excise Act:

     Seizure of ID liquor not supported by independent witnesses, testimony of the official witnesses when unimpeachable cannot be discarded.  Because of the non-support of the seizure witnesses, it cannot be said that the allegation of possession is not substantial.  

(B) In every case production of seized articles is not a must.  True it is production of seized articles during the trial stage lands assurance to the fact of seizure and possession, but non-production ipso facto does not lead to the contrary conclusion.  Once the search and seizure have been believed and accepted to be true, non-production of the seized articles does not render the finding of possession susceptible.   

(C) Conscious and exclusive possession:

     Convict, accused, petitioner staying in the house with wife and children.  One acceptable evidence has been brought on record establishing that the accused is the head of the family, presumption of his having been in possession of the articles to be drawn.  Accused has not adduced evidence to the contrary. 

     Once acceptable evidence has been brought on record establishing that the accused is the head of the family “Karta”, a presumption is to be drawn of he having been in possession of the articles though if will be a rebuttable presumption (See Lachmiriya Thakurani v. Emperor AIR 1933 Patna 272 and in rev Wahila Basha reported in AIR 1961 Madras 162).  No rebuttable evidence has been adduced by the petitioner that he was not the head of the family or the children were independent or on their own and therefore, the possibility of their bringing the articles to the house could not be ruled out. 

     It has been held by DRISSA HC. In the Case of Sukuru Behera v. State (1989) 2 OCR 375 that corroboration by independent witnesses is not a mandatory requirement.  Judge has quoted few lines of this judgment. 

     “..........Insistence on corroboration is a requirement of prudence and caution and cannot be an absolute requirement”

In para II Hon’ble High Court has stated

     “............It cannot be laid down as a general principle that where only official witnesses are present their evidence has to be thrown out and disbelieved and no conviction can be made on their evidence.”

     See Judgment in Subodh (i) Sethi and another v. Stte, 73 (1992) CLT 28. 

     (ii)  Suna Das v. State of Orissa; (1993) 6 OCR 612. 

(D) Litmus paper and hydrometer tests conducted by official witness having departmental experience cannot be ignored.   

48.           Bijoy Kumar Majhi v. State (1997) 12 OCR 337 Dipak Mishra J.

                 Sec. 47 (a) whisky, rum, gin, and beer bottles recovered from Dhaba of the accused – Evidence of prosecution witnesses does not establish that accused was in management of the dhaba.  No evidence to prove that accused was in exclusive and conscious possession of the seized articles. 

49.           Mrutyunjaya Prasad Sahu v. State of Orissa (1997) 12 OCR – 312. 

                 Sec. 47 (f) possession of materials etc for purpose of manufacture of any intoxicating drug or liquor No justification for not producing earthen still pot and bamboo pipe in Court.  Specific question not put to accused under Sec. 313 Cr.P.C regarding the purpose for possession of incriminating materials, accused prejudiced as no question has been put to him indicating that he was in possession of the incriminating materials for the purpose of manufacturing any intoxicating drug or liquor other than Tari. 

50.           A.  Sec. 125 – Hindu Marriage Act, 1955 – Sec. 23 – Maintenance Grant of lump sum – Section provides for “monthly allowance” – permanent alimony can be granted in a civil proceeding under section 25 of the Hindu Marriage Act – Court not competent in a proceeding U/s. 125 Cr.P.C to grant permanent alimony.  Srikanta Padhy v. Prabasini Disxit alias Padhy (1997) 12 OCR 158. 

B.  Just ground necessitating the wife to remain separately and claim maintenance – False accusation of adultery, whether amounts to cruelty? Held in matrimonial relation, cruelty includes mental as well as physical cruelty – A deliberate false imputation with intent to wound and humiliate the spouse amounts to cruelty.  Srikanta Padhy v. Prabasini Dixit @ Padhi (1997) 12 OCR 158.   

51.           Section 161 Cr.P.C. statements recorded by Police – Not substantive evidence – To be utilised only for the purpose of contradicting a witness – Such contradiction can be proved by confronting the statement to the witness as well as the I.O. –Confrontation necessary where the witness does not admit any so called omission.  Kamalakanta Mohanta v. State of Orissa (1996) 12 OCR 299.

52.           Sec. 439 Application of bail – Court not to conduct a preliminary trial – Court has to be prima facie statistical that there are grounds to grant bal – In non – bailable offences nature and seriousness of offence, character of evidence, circumstances peculiar to the accused, possibility by absconding and tampring with the witnesses, larger interest of the public etc. Ore to be considered Mrs. Prativa Das v. State of Orissa (1997) 12 OCR 303. 

53.           Law is well settled that if cognizance is not taken within the period of 90/60 days depending on the nature of the offence as indicated U/s. 167 (2) Cr.P.C the accused gets a valuable right to be released on bail.  Chaitany Mohanty v. Paban Kumar Rout (1997) 12 OCR 512. 

54.           Gopinath Das v. State of Orissa (1997) 12 OCR – 542. 

       Sec. 482 Prayer for tagging of cases initially case against petitioners split up as they were absconders – By the time they were apprehended and their case committed trial had commenced in the earlier case and witnesses had been examined – Held since the petitioners had absconded, the evidence already adduced had been confired to the other accused in many aspects – So prayer of the petitioner for tagging both the cases by abandoning their right of cross-examination will prejudice the prosecution. 

55.           Accused competent witness – option available to accused to examine himself and tender his evidence on his behalf or on behalf of another accused Necessary for the accused to give a request in writing since co-accused had been acquitted there was no bar against summoning him as a witness Sarbeswar Panda V. State of Orissa (1997) 12 OCR 316. 

56.           Tularam and other v. Kishore Singh AIR 1977 SC 2401 the Apex Court dealing with the jurisdiction of Magistrate for issuance of direction under Sec. 156 (3) of the code and the procedure to be adopted by him  in case he chooses to take cognizance succinctly laid down as follows:

       That a Magistrate can order investigation under Sec. 156 (3)  only at the pre cognizance state i.e. to say before taking cognizance U/s. 190, 200 and 2004 and where a Magistrate decides to take cognizance under the provisions of  Chapter 14, he is not entitled in law to order any investigation U/s. 156 (3) though in cases not falling within the proviso to Sec. 202, he can order an investigation by Police which would be in the nature of an enquiry as contemplated by Sec. 202 of the code. 

2.   Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives. 

       (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straight away issue process to the accused but before he does so he must comply with the requirements of Sec. 200 and record the evidence of the complainant or his witnesses. 

       (b)  The Magistrate can postpone the issue of process and direct an enquiry by himself. 

       (c)  The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. 

       (3)  In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint. 

       (4)  Where a Magistrate orders investigation by the police before taking cognizance under Sec. 156 (3) of the code and receives the report there upon, he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take acting U/s. 190 as described above.  Referred in Nagabhusan Baralo and another v. Tanga Ranga Masala and other (1997) 12 OCR 340.

57.           (A)  Appreciation of evidence – Accused armed with deadly weapons – Victim and relatives unarmed – their failure to intervene is natural.  Hardev Singh V. Harbhej Singh and others (1997) 12 OCr (SC) 388. 

       (B)  Evidence of close relations to be scrutinised carefully and not rejected merely because they are related (1997) 12 OCR (SC) 388. 

58.           Dhaneswar Goud v. State of Orissa (1997) 12 OCR 515 Allegation that deceased had been given tangi blows – resulting in multiple bleeding injuries–Occurrence took place between midnight and early morning–Contented that the light was insufficient for indentifying the culprit–Held, once witnesses state that they could recognise the culprit, the onus is on the defence to prove that there was absence or insufficiency of light–witnesses not cross-examined on this aspect. 

       Elaborate:

       On a reading of the evidence of the eye witnesses P.W.s 2, 3 and 4 coupled with the evidence of occurrence witnesses P.W.1 and 10, we entertain no doubt that the occurrence took place between midnight and early morning and the eye witnesses P.W.2, 3 and 4 who were sleeping in the courtyard adjacent to each other could have seen the accused inflicting the blows.  In villages where electricity and other modern amenities are usually n available, the village people are acquainted with and accustomed to insufficient light may be dibri, lantern, moonlit and almost of no light.  A witness can be recognised even in absence of light from a short distance from his features, gesture and his behaviour pattern.   These witnesses had the occasion to see the accused close to them, not only that, they have chased the accused to some distance and no exception can be taken if they have not specifically stated in their evidence about the light by which they got the visibility.  One eye-witness says that they have seen the culprit, it is for the defence to show that the light was insufficient or absent and they could not have seen the occurrence.  The defence has specifically not cross-examined the witnesses as to it they could see the culprit inflicting the blows in as much as in the cross-examination with regard to the time and visibility.  It has been brought out from the cross-examination that the occurrence took place near about the cock crow time.  The accused is of the same village.  Therefore, no exception can be taken to their witnessing the infliction of blows on the deceased from a very close proximity.  (Para 8).

59.           Kirpal Singh v. The State of Uttar Pradesh AIR 1955 SC 712. 

       Apex Court has held that the witnesses could recognise the accused persons from their voice and gait. 

60.           Jugal Gope and others v. State of Bihar AIR 1981 SC 612, Rakesh Kumar @ Babli v. State of Haryana AIR 1987 SC 690

       The Apex Court have held that when eye witnesses say that they could recognise the culprit in the night, it is for the latter to prove that the light was either insufficient or absent for these witnesses to recognise the culprit. 

61.           Sec. 164 Cr.P.C. Judicial confession – Retracted when examined U/s. 313 Cr.P.C – In case of a retracted confession, in dependent corroboration may be necessary – corroboration must be on material particulars and will be sufficient if the confession is proved to be voluntary – Evidence of the magistrate that all formalities had been complied with – No infirmities pointed out in the confession.  Dhaneswar Goud v. State of Orissa (1997) 12 OCR 515. 

62.           Nityananda Nayak v. State of Orissa (1997) 12 OCR 7 No bar to base a conviction on the sole testimony of an eye witness even if he is a close relation of the deceased.  His evidence must be otherwise trustworthy.  Division Bench – D.M. Patnaik and P.K. Mishra JJ.

63.           Marudanal Augusti v. State of Kerala AIR 1980 SC 638.  The delayed despatch of F.I.R to the Court of the S.D.J.M. creates some doubt regarding the authenticity of the F.I.R. 

64.           Non explanation of injuries on person of the accused – Effect on prosecution case – Held prosecution case is not to be rejected in every case.  Much depends on the facts and circumstances of each case.  Bramha Behera v. State (1997) 12 OCR 606.

65.           Plea of alibi to be considered only after prosecution has discharged its burden of proving the presence of the accused at the scene of the crime.  Accused to prove his plea with absolute certainty so as to rule out any possibility of his presence.  Evidence of accused to be of such quality and standard so as to introduce reasonable doubt regarding his presence.  Bijay Kumar Singh v. State of Bihar (1997) 12 OCR SC – 374. 

       Identification as members of unlawful assembly.  Number of identifying witnesses not material.  Quality and not quantity of evidence is material where size of the unlawful assembly is large president insist at least two reliable witnesses.  Binay Kumar Singh v. State of Bihar (1997) 12 OCR SC-374. 

66.           Christian Master (a) Prafulla Kumar Naik v. The State 32 (1990) OJD 23 (Criminal). 

       Statements U/s. 161 Cr.P.C are not substantive evidence and can be utilised only for contradicting a witness.  Such contradiction can be proved only by confronting the statement to the witness concerned as well as the I.O.  If the witness himself would admit the so called omission, the matter would be different. 

67.           Sec. 202 (2) – Proviso Examination of all witnesses in a case exclusively triable by the Court of Session – Held, all witnesses means only material witnesses – includes eye witnesses – Choice with complainant to intimate the Court if he does not want to examine a particular witness for some tenable reason.  IN case any material witness is examined during trial for the first time prejudice may be caused to the accused – Non examination of material witness at the risk of the complainant.  Sribatsa Kumar Bara @ Sribatsa Bara v. Sabitri Karan (1997) 12 OCR 170. 

68.           Sec. 321 Cr.P.C with drawl from prosecution – petition registered on the basis of letter addressed to the Honourable Chief Justice – Allegation that eleven cases were intended to be withdrawn at the behest of the Dy CM – Held for purpose of withdrawal the P.P.  must make out some ground to show that prosecution may not be able to produce sufficient evidence or that administration of justice would not be advanced – ultimate guiding consideration is interest of administration of justice – Directions to withdraw is of the PP and he cannot surrender it to someone else – He must apply his mind as a free agent – Court to grant permission after being satisfied that it would serve the administration of justice and was for an ulterior purpose.  True legal position and responsibility of Court discussed – Petition premature as matter is under consideration.  Citizens of Tirtol V. State of Orissa (1997) 12 OCR – 451 S.N. Phukan CJ and A. Pasayat J. 

69.           Evidence of Hostile witness to the extent it corroborates prosecution version can be relied upon Balaram Prasad Aggrawal v. State of Bihar AIR 1997 SC 1830. 

70.           Annasab Melappa Pattan Shetty v. State of Karnataka 1982 Crl Law Journal 1553. 

       It is held that the material elicited as contradiction by use of Sec. 145 of the Evidence Act cannot be substantive evidence to base conviction.  In the present case P.W.1 does not support the prosecution case first but during his cross-examination by the prosecution he stated to have made such statement which cannot be a substantive evidence.  Hence it cannot be acted upon legally. 

71.           Delay in lodging the F.I.R cannot be used as a ritualistic formula for doubting the prosecution case discarding the same solely on the ground of delay in lodging F.I.R.  Delay has the affect of putting the Court on its guards to search if any explanation has been offered for the delay and if offered whether it is satisfactory or not.  If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution.  However, if the delay is explained to the satisfaction of the Court the delay cannot be itself be a ground for disbelieving and discarding the entire prosecution case.   State v. Gyan Chand 2001 (II) OLR SC – 367. 

72.           Accused has an indefeasible right to be released on bail when investigation is not completed within the specified period.  In order to avail this right accused has only to file an application before the Magistrate stating he may be released on bail as the period of investigation has expired and he is prepared to offer bail being directed by the Magistrate.  The expression “if not already availed of” used by the Supreme Court in Sanjay Dutt Case [(1994) 5 SCC 410] has to be understood in this manner.  Magistrate has to dispose of forthwith this application Magistrate is obliged to grant bail even if the police files charge sheet after filing of such application – Even when the application of accused is erroneously rejected by the Magistrate and he moves the higher forum and a charge sheet is filed in that forum, the indefeasible right of accused is not affected – In case, however, the accused fails to furnish bail as directed by the Magistrate then his right to be released on bail extinguishes.  Uday Mohanlal Acharya v. State of Maharastra 2001 (II) OLR (SC) – 290. Sec. 167 (2) Proviso (a). 

73.           Bigamy – Hindu Marriage Act 1955-Sec. 3(a) custom-Part XII of constitution (Scheduled Tribes) Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990 – Marriage among scheduled Tribes which have been specified- Having a second wife while the first married wife is present and not divorced – Fact of second marriage being void is a sine qua non for the applicability of Section 494 I.P.C – Mere pleading of a custom stressing for monogamy by itself not sufficient – IN order to prove second marriage void it is to be shown of existence of a custom which made such marriage null ineffectual having no force of law or binding effect in capable of being enforced in law or non –est. 

       Under S.2 of the Hindu Marriage Act Hindu Covers

(i)  All Hindus including a Virashiva, A Lingayat, A Brahmo Prarthana Samajist and an Arya Samajist. 

(ii)            Budhists (iii) Jains (iv) Sikhs.

Dr. Surajmani Stella Kojur v. Durga Charan Hanslal 2001 (ii) OLR SC – 33.

74.           When a Statement written or verbal is made by a person in disposal of professional duty whose attendance cannot be procured without an amount of delay the same is relevant and admissible in evidence.  Armista Barik v. State 93 (2002) CLT 96. Sec. 32 of Evidence Act. 

75.           To prove the offence under Sec. 299 I.P.C mere utterance of obscene words are not sufficient but there must be a further proof to establish that it was to the annoyance of others which is lacking in this case.  K. Jayaramanuju v. Janakaraj 1997 Cri LJ 1623 (Madras HC).

76.           Relative Witness.  

77.           Sec. 7 read with clause 3 of Essential Commodities Act, 1955

       Inspection by Supply staff before commencement of business transaction of the shop. 

       Accused cannot be held guilty for non-display of stock of a particular commodity in the board.  {Essential Commodities Act 1955 Sec. 7 read with clause 3 of the Orissa Declaration of stocks and price of Essential Commodities Order, 1973.}

       “Ground Seeds” means not the whose groundnuts with the cover but only the seeds inside it”.  [Essential Commodities Act 1955 section 7 read with cl 3 of the Orissa Essential Stuffs (Prevention of Loading and Requisitioning of stocks) Order 1974] Balaram Sahu v. State of Orissa 1982 CLR 1. 

78.           CrPC 1973 Sec. 125 (3)

       Hagiri Dei & another v. Budhiram Behra 1982 CLR 6 R.C. Pattanaik J.   Maintenance granted by order dated 07.11.1973 Misc. Case filed for realisation of dues for eighteen months – writ petition filed in the year 1977 dismissed with an observation that the miscellaneous case is maintainable for one year’s default.  

       ON 20.11.79 three petitions under Sec. 125 (3) of the CrPC 1973 filed for realisation of maintenance dues for the periods from 01.03.1975 to 01.09.1976 from 01.09.1976 to 01.09.1977 and from 01.09.1977 to 01.09.1978.

       Held all the three applications are not maintainable. 

       The first proviso to sub Section (3) of Section 125 Cr.P.C is clear and unambiguous.  Acquiescence of the opposite party cannot confer jurisdiction on the Magistrate or enlarge the same.  In certain circumstances, an application can be made for a period beyond on year.  E.g. where a pending application has been closed for statistical purposes and fresh application is filed for the period covered by the earlier application and the period subsequent there to etc. 

79.           Cr.P.C 125. 

       It is not necessary to insist on the strict proof of all the formalities of a particular form of legal marriage as is necessary in Civil Proceedings where the question of the legality of marriage is primary issue. 

       U/s. 125 – Provides a swift and summary remedy for providing maintenance to neglected wives, parents and children by compelling the man to perform his moral obligation.  In such a summary proceeding it is not necessary to go into intricacies of law. 

       In maintenance proceedings the marriage is not expected to go into complicated question relating to validity of the marriage.  Living as husband and wife and being treated by the police as such is quite sufficient for the award of maintenance. 

Saudamini Dei v. Bhagirathy Raj 1982 CLR 12. 

       Living as husband and wife and being treated by the public as such is quite sufficient for the award of maintenance. 

       Under this section it is sufficient if the wife proves that she has been treated as wife by the person from whom maintenance is claimed.  It is not material how the marriage was solemnised”. 

80.           A. Sec. 201 & 203 I.P.C.

       Mere removal of the dead body of a murdered person from one place to another does not amount to causing evidence of the offence to disappear. 

       B.  Sec. 378 & 386 Cr.P.C.

       Although in an appeal from an order of acquittal, the powers of the High Court to reassess the evidence and reach its own conclusions are as extensive as in an appeal against an order of conviction yet as a rule of prudence.  It should always give proper weight and consideration to matters such as (1) the views of the trial judge as to credibility of the witnesses (2) the presumption of innocence in favour of hte accused, a presumption certainly not weakened by the fact that he had been acquitted at the trial Court, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who has the advantage of seeing the witnesses.  Where two reasonable conclusions can be drawn from the evidence on record, the High Court should as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the trial Court.  In other words, if main grounds on which the Court below has based its order acquitting the accused one reasonable and plausible and may not be entirely and effectively dislodged or demolished the High Court should not disturb the acquittal. 

       While dealing with an appeal against acquittal in respect of some of the charges, it may be kept in mind that when two views on the evidence or reasonably possible and the evaluation of evidence by the trial Court does not suffer from illegality manifest error or perversity, the order of acquittal is not to be reversed. 

       C.  Matters to be taken into consideration to test the reliability of a witness. 

       The evidence of an interested witness is not to be discarded if he is found to be a natural competent and reliable witness and the evidence of a disinterested witness cannot be accepted on the sole ground of his disinterestedness if the evidence of such a witness has no intrinsic worth, often enough, an accused person may not be in a position to say as to how an why some witnesses have deposed against him and the fact that there is absence of evidence of animus on the part of a witness towards an accused person cannot stamp his evidence with truth.  The main test is one of reliability.  These principles relating to appreciation of evidence have therefore to be kept in mind.  State of Orissa v. Trinath Das and others 1982 CLR 20 P.K. Mohanty, B.K. Behera. JJ.

81.           Sec. 321 Cr.P.C. 

       Matters to be taken into consideration in dealing with an application U/s. 321 Cr.P.C. 

       The ultimate guiding consideration is the interest of administration of justice and that is the touch store on which the question must be determined whether the prosecution should be allowed to be withdrawn.  DwarakaPrasad Agarwal v. State 1982 CLR 49 J.K. Mohanty J.

82.           Appreciation of evidence;

       Presumption is that a person acts honestly applies as much to a Police officer as to any other person.

       The falsity of the defence cannot establish the prosecution case.  But if the other evidence and circumstances point unfailingly to the guilt of the accused, false defence can be considered as an additional link. Sridhar Sahu v. State of Orissa 1982 CLR 51 B.K. Behera J. 

83.           Sec. 3 and Sec. 134 Appreciation of evidence

       Matters to be taken into consideration in assessing the evidentiary value of a single witness examined in support of a charge in a criminal case. 

       There is no doubt that conviction can be based on the testimony of a single witness.  But rule of prudence forbids conviction on being based in the testimony of solitary eye witness unless there are compelling reasons for the same and the evidence of the sole eye witnesses is completely above board, where therefore on examining the evidence of the only eye witness it cannot solely said that the prosecution has proved its case beyond reasonable doubt. The accused is entitled to the benefit of doubt.  Baishnaba Charana Ghana v. State 1982 CLR 55 J.K. Mohanty. J. 

84.           Sec.24 “person in authority” defined.

       Dhuleswar Behera v. The State 1982 CLR 62

       The expression “person in authority” used in Sec. 24 of the I.E.A has not been defined.  Generally speaking a “person in authority” is one who is engaged int eh apprehension, detention or prosecution of the accused, or one who is empowered to examine him.  After abolition of the Gounti System, the ex-Gountia do not exercise any influence or authority.  By no stretch of imagination, they can be treated to be persons in authority. 

       Evidentiary value of one’s one confession and that of a co-accused. 

       An accused can be convicted solely upon his own confession, even if the Court believes it to be true and voluntary.  But a conviction should not be based merely on the confession of a co-accused.  A Court would not ordinarily act upon a retracted confession to commit a co-accused without strongest and fullest corroboration as to the crime and the connection of the co-accused with it. 

       Evidentiary value of extrajudicial confession

       There is no rule of law that no conviction can be made on the basis of an extrajudicial confession.  Dhuleswar Behera v. The State 1982 CLR 621 P.K. Mahanti J.K. Mohanty. JJ.

85.           Sec. 167 (2) read with Sec. 362. 

       Petition for bail allowed by the Sessions Judge as per provisions of Sec. 167 (2) Cr.P.C. – Before the accused was in fact released from jail custody the Sessions judge being informed that charge sheet had not been submitted or recalled the order.  Review is not permissible in view of Sec. 362 of the code of Cr.P.C which permits only correction of clerical or arithmetical error.  Ramesh Chandra Sahu v. State 1982 CLR 69.  R.C. Patnaik J.

86.           1982 CLR 92 Prevention of Food Adulteration Act, 1954, Sec. 13 (2) Read with prevention of Food Adulteration Rules. 

       Copy of the report of Public analyst is to be sent to all persons arrayed as a accused in the Prosecution Report.

       The receipt of the copy of the Report by one accused does not amount to receipt of the copy of the report by others. 

       Article Kept sealed on 08.06.1978 sent on the report of the public Analyst is dated 25.07.1978 – A copy of the Report was sent one of the accused persons on 14.08.1978.  There was no evidence that any preservative had been added to the Tilipi which had been kept sealed. 

       Held: there was, therefore, possibility of such article getting spoilt in course of time and in the process, the two petitioners would be prejudiced in their defence if they would intend to send the article for examination by the Central Food Laboratory. 

(B) Prevention of Food Adulteration Rules, Rules 7 & 18

       Prosecution is required to adduce evidence that a copy of the memorandum and impression of the seal used by the Food Inspector to Seal the packet had been sent to the Public Analyst separately registered post or delivered to him or to any person authorised by him. 

       In absence of such evidence it is to be held that the prosecution had not brought home the charge to the accused persons beyond reasonable doubt.  Babaji Charana Sahu v. State 1982 CLR 92.

87.           Sec. 3 & 118 Indian Evidence Act Child witness.

       Evidence of a child witness is not to be thrown out merely on that ground if it is found to be probable and reliable. 

       Non recovery of weapon of offence Effect.

       The mere fact that no weapon of attack had been recovered from the possession of any of the accused persons cannot be a ground to discard the evidence with regard to assault by them.  Ramachandra Pradhan & another v. State 1982 CLR 99. 

88.           Sec. 419 I.P.C ingredients

(i)             That the accused cheated the complainant and

(ii)           That he did so by pretending to be some other person; or by knowingly substituting on person for another, or representing that he, or some other person, a person other than the person he really is.  Himsen Sahu v. State 1982 CLR 107. 

89.           Sec. 3 Indian Evidence Act-Appreciation of evidence:

       The evidence of a witness, it found to be otherwise unreliable and untrustworthy, cannot be accepted merely because no reason is shown as to why he has implicated an accused person.  The important consideration is as to whether the evidence of a witness is credible and can be accepted.  If the evidence is worthy of credence, the fact that the witness has no exe to grind against an accused person or has no interest otherwise to involve him in a case may land further assurance to his testimony.  But absence of interestedness, by itself cannot stamp his evidence with truth. 

Sec. 134 I. Evidence Act.

       The evidence in a criminal trial is to be weighed and not counted and the evidence of a solitary witness can form the basis of an order of conviction; it must be kept in mind that in order that the sole testimony of a witness is made the foundation and the basis for finding a person guilty of the charge, the evidence must be clear, cogent and consistent and should be of an unimpeachable character.  V. Prabhakar Rao v. State of Orissa 1982 CLR 92. 

90.           Guidelines for directing re-trial.

       When the Sessions Judge acquits the accused by ignoring the probative value of the First Information Report  and reliable testimony of eyewitnesses and without considering material evidence on record and the judgment is full of inconsistencies and consists of faulty reasoning, High Court in remission would be justified in directing re trial by setting aside the acquittal. 

       Prosecution is not obliged to examine each and every witness to the occurrence and is not to multiply its witnesses on the same point.  Rajanikanta Panigrahi v. Pranabandhu Panda and others 1982 CLR 128.  Sarwan Singh v. State of Punjab AIR 1976 SC 2394. 

       In the instant case there had been a case and a counter case and there was   strained relationship between the parties and that apart, the evidence from the side of the prosecution did not inspire confidence of the trial Court.  Interested witnesses were examined.  Some independent witnesses had disinterested persons who were named by some of the prosecution witnesses and were said to be present near, the spot mere not examined and their evidence was withhold.  Prosecution pleaded ignorance about any injury having been caused on one of the accused persons.  Trial Court rightly concluded a true and complete picture of the occurrence has not been produced by the prosecution.  Rajanikanta Panigrahi v. Pranabandu Panda 1982 CLR 128.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

91.           1982 CLR 14.

       Normally the revisionary power u/s. 401 Cr.P.C is to be exercised by HC only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in largest miscarriage of justice. 

       Delay in lodging F.I.R to be Satisfactorily explained – Effect of paucity of evidence to explain delay. 

       Although the P.S 7 K.M. away from the place of occurrence, the occurrence which had allegedly taken place about 10 A.M on 07.02.1976 as mentioned in the formal F.I.R was reported as late as at 2.30 P.M. on 09.02.1976.  The explanation for the delay that the matter was to be settled up by the villagers, but the report was made as no settlement was made was not to be accepted in the absence of evidence from any of the co-villagers that any such attempt had been made for a settlement.  The fact remains that there had been long delay in lodging of the F.I.R. 

       The F.I.R. in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial.  The importance of the above report can hardly be overestimated from the stand point of the accused.  The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence.  Delay in lodging the F.I.R quite often results in embellishment which is a creature of afterthought.  On account of delay, the report not only gets benefit of the advantage of spontaneity but danger, creeps in of the introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation. 

       An accused person may not be in a position to say as to how and why some witnesses have deposed against him.  Different motives operate on the minds of different persons in the making of unfounded accusations.  What is therefore important is the intrinsic worth of the testimony of a witness.  If the evidence suffers from infirmities or improbabilities, the fact that a witness is disinterested not stamp his or her evidence with truth.  Bhagabat Chandra Sebak v. State of Orissa 1982 CLR 140.

92.           1983 CLR 140 Duty of Magistrate.

       Legal and proper accusation couched clearly should be made by the prosecuting agencies and not by hurriedly using short abbreviations without stating the particulars of the offences cases should be tried and disposed of by adopting the legal procedure scrutinising the accusations made int he prosecution reports and exercise due care while recording the statement of the accused persons.

       Every citizen be he a multimillionaire or a wage earner like the petitioner, must get even landed justice and is entitled to have a just and fair trial.  Justice must not only be done, it must also appear to have been done.  Magistrate presiding over mobile Courts should  conduct themselves in such a manner that the accused persons do not have an impression that separate norms are being adopted for hurried disposals while holding such court, away from the place of sittings of Courts, where rarely accused persons my have the advantage of being defended by lawyers.  It may be kept in mind that if the accusations do not legally constitute an offence, an admission of an accused person of such accusations cannot be the basis of an order of conviction.  In the absence of legal proof of a crime there can be no legal criminality.  Bhagabat Chandra Sebak v. State of Orissa. 1982 CLr 140. 

93.           1982 CLR 144. 

       All that had been established was that the petitioner was found near the about the spot and he ran away on seeing the Excise Officials and was apprehended.  There might arise some suspicion against the petitioner for his presence at an unusual hour at that place and from his act of running away on seeing the Excise Officials, but different persons react differently and when the finger of accusation is raised even an innocent persons may behave like a guilty one.  Conduct which destroys the presumption of innocence of an accused person can alone be considered against him. 

       In the absence of clear and cogent evidence pointing to the guilt no order of conviction can be based only on a piece of suspicious conduct on the part of an accused person.  Shyam Sundar Behra v. State 1982 CLR 144.

94.           Bhikari Charan Mohapatra v. State of Orissa 1982 CLR 164 S. 405 and 409 Cr.P.C.

       It may be kept in mind that every offence of criminal breach of trust involves a Civil wrong in respect of which the complainant may seek his redress for damages in Civil Court, but every breach of trust in the absence of mens rea cannot legally justify a criminal prosecution. 

       It must be kept in mind that when the prosecution comes forward with a particular case it must establish it and the charge cannot be brought home to an accused person merely on his failure to establish his case.  “If the prosecution has been able to substantiate its case by its evidence a false explanation offered by an accused persons may be on additional link in support of the case of the prosecution but is cannot be itself be sufficient to sustain the criminal charge. 

95.           Mangaraj Barik and others v. State of Orissa S. 442 and S. 448.

       A School – building would satisfy the test of a “building used as a human dwelling”

       A building need not be used as a place of permanent resident in order to be considered as a human dwelling.  Mangaraj Barik and others v. State of Orissa 1982 CLR 172.

96.           Meaning of the word ‘consent’ relating to Sec. 375 I.P.C.

       The consent given by the victim must be voluntary.  A mere fact of helpless resignation in the face of inevitable compulsion, quiescence, non resistance or passive giving in when volitional faculty is either crowded by fear or vitiated by duress, cannot be deemed to be ‘consent’ consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation after having fully exercised the choice between resistance and assent. 

       The question of consent or compulsion is to be judged on a careful consideration and scrutiny of the evidence of the victim and from other corroborative evidence, if available and the attendant circumstances preceding, accompanying or following the acts of sexual intercourse. 

       Charge of rape......Absence of injury in the person of the victim girl......Effect. Necessity of corroboration of the evidence of the prosecutrix.

       In the case of rape the onus is always on the prosecutin to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. 

       Absence of injury on the person of the victim girl may not be fatal to the prosecution and corroborative evidence may not be on imperative component of judicial credence in rape cases.  Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances indeed from place to place, from age to age, from varying like styles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity, but a realistic diversity test rigidity in the scope of role of law in this area be introduced through a new type of precedential tyranny.  The same principle is also applicable regarding the presence or absence of injuries on the person of the aggressor or the aggressed.  The Court cannot cling to a fossil formula and insist on corroborative testimony even if taken as a whole, the case spoken by the victim strikes the judicial mind as probable. 

       It must be kept in mind that in a criminal case the prosecution is to establish its case and falsity of the defence version cannot be by itself, establish the case against an accused person.  If the other circumstances point unfailingly to the guilt of an accused person, falsity of the defence can be considered to be an additional circumstance. 

       The evidence of prosecution witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose against him.  Nilambar Vouda v. State and another 1982 CLR 177. 

97.           Sec. 34 I.P.C.

       To attract Sec. 34 of the I.P.C, not there must be prior meeting of the minds and a pre-arranged plan.  The common intention may also develop on the spot.  Keshab Sahu and three others v. State 1982 CLR 195. 

98.           Essential Commodities Act, S. 7 read with Sec. 3 of the Orissa Declaration of Stocks and Price of Essential Commodities Order, 1973. 

       Meaning of the expression “each day”.

       The expression “each day” occurring in cl. 3 of the Orissa Declaration of Stocks and Price of Essential Commodities Order, 1973, would mean each day on which the shop is open for transactions and would not include the day in a week on which the shop of a dealer of essential commodities is closed.  Kishore Chandra Das v. State 1982 CLR 201. 

99.           Santimani Dei v. Lingaraj Maharana & others 1982 CLR 210. 

       In a case U/s. 494 I.P.C the second marriage during the subsistence of the first one must be established strictly in accordance with the provisions of law, the considerations in a case or suit for maintenance are quite different-

       Unless the second marriage is proved to have been performed in accordance with lane and customary rites, no conviction u/s. 494 of the I.P.C can lie. 

       The Criminal case against the respondents was decided long prior to the decision in the Civil Suit.  The finding recorded by the learned subordinate Judge is not binding on the Criminal Court.  The consideration in a case U/s. 494 I.P.C and a case of maintenance and distinct and different. 

       It would not therefore, be just reasonable and proper to admit the certified copy of the judgment as additional evidence. 

100.       Sec. 134 I.E. Act. 

       In order to base a conviction solely on the testimony of a solitary witness the evidence must be clear, cogent, reliable and must be of an unimpeachable character. 

       A statement made by a witness in Court while being cross-examined is not to be discarded merely because he did not make such statement while being examined during investigation before the police officer.   

       It would be unreasonable to think that the statement by a witness in his cross-examination be it in favour of the prosecution or in favour of the defence is to be discarded merely because such a witness had not made a statement to that effect while under examination by the investigating officer.  The investigating officer normally examines a witness on particular points and it would not be possible for the investigating officer to speculate at the stage of investigation all the defence which might be set up by an accused person so that while the witness is under examination, he would examine the witness on all scores to eliminate all such defences. 

       Effect on non examination of material witness.

       Prosecution is not obliged to examine all the eye witnesses to the occurrence, whatever be the number.  This would not be mean that a material witness who could unfold the truth may not be examined.  It is the duty of prosecution to examine a material witness particularly when no allegation is made that the witness, if examined would not speak the truth.  The non-examination of such a witness would not only give rise to an adverse inference against the prosecution in view of the illustration (g) of Sec. 14 I.E. Act but would cost a serious reflection on the fairness of the trial. 

       The evidnce of witnesses cannot be discarded merely because their statements were recorded U/s. 164 of the Cr.P.C.  Their evidence must be approached with caution.  Bishnu Charan Moharana v. State 1982 CLR 218. 

101.       Neither freaky inference nor suspicion can take the place of legal proof. 

       Merely because the persons placed under trial had a criminal back ground in the absence of legal proof they cannot be held guilty of the offence alleged to have been committed by them. 

Circumstantial evidence

       It is well settled that when a case rests entirely on circumstantial evidence such evidence must satisfy three tests.  Firstly, the circumstances from which an inference of guilty is sought to be drawn, must be congently and firmly established.  Secondly those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.  Thirdly, the circumstances taken cumulatively could form a chain so complete tha there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.  That is to say the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused’s guilty. 

       Sec. 17 admission

       A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.  Dhaneswar Patra v. The state of Orissa 1982 CLR 229.

102.       Nature of questions to be put to an accused S. 313 Cr.P.C.

       The proper method is to bring to the attention of the accused specific matter which appear in the evidence against him and merely questioning him generally is not a satisfactory method of application f Sec. 313 Cr.P.C.  Joda Sabaran and others v. State 1982 CLR 237. 

103.       Motive however adequate, cannot, however, sustain a criminal charge, unless the other evidence unfailingly point to the quilt of the accused persons. 

       Evidentiary value of dying declaration S. 32 (I) I.E.A

       If after searching scrutiny the Court is satisfied that the dying declaration represents a truthful version of the occurrence in which the deceased received the injuries, which led to his death, a conviction can be founded thereon even in the absence of any independent corroboration. 

       Identification of person S. 9 I.E.A

       A known person can be identified by the twilight of the stars and from his contours. 

       There may no doubt, be instances when what are supposed to be the clearest intimations of the senses may be fallacious and deceptive and some cases may occur of mistaken personal identity. 

       Identification of property S.9 I.E.A

       A witness may be able to identify an article by frequently seeing handling or using it although there is no special mark of identification. 

       Small and nice points of difference distinguishing one thing from others of the same kind may merely by frequent sight of them and without any special attention to them make an impression on the mind, such identification may still be relied upon although a witness would not be able to formulate impressions of the mind.  It would not be correct to discredit evidence of identification on the sole ground that reasons are not formulated by the witnesses while identifying articles.  Budhia Singh v. State 1982 CLR 241. 

104.       As regards the evidentiary value of relative witness Hon’ble SC observed in Gangadhar Behera v. State of Orissa (2003) 24 OCR (SC) 265. 

Para 10:

       We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version.  Relationship is not a factor to affect credibility of a witness.   It is more often than not than a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made.  In such cases the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible. 

Para 11:

       Dalip Singh v. State of Punjab AIR 1953 SC 364 See (2003) 24 OCR Page 270.

Para 13

       We may also observe that the ground that the witness being a close relative and consequently being a partisan witness should not be relied upon has no substance.  This theory was repelled by this Court as early as in Dalip Singh case.  AIR 1953 SC 364: 1953 CriLJ 1465.   

105.       Circumstantial evidence:

       It is well settled that when a case rests on circumstantial evidence such evidence must satisfy 3 facts.  (i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, (ii) Those circumstances must unerringly pointing towards the guilt of the accused, (iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.  S.D. Soni V. State of Gujarat A 1991 SC 917. 

106.       Reasonable Doubt: refer (2003 24 P. 273. 

107.       Discrepancies in the version of witnesses:

       Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be material discrepancies are those which are not normal and not expected of a normal person.  Courts have to label the category to which a discrepancy may be categorized.  While normal discrepancies do not corrode the credibility of a party’s case material discrepancies do so.  State of Rajastan v. Kalki (1981) 2 SCC 752, AIR 1981 SC  my reference (2003) 24 OCR 272. 

108.       Conflict between ocular evidence and medical evidence:  Refer (2003) 24 OCR P. 274 State of UP v. Krishna Gopal AIR 1988 SC 2154.