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The State Of Maharashtra vs Babasaheb @ Krishnat Durgappa … on 7 January, 2019

Sknair apeal-745-97.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 745 OF 1997

The State of Maharashtra … Appellant
(Through Karveer Police Station) (Org. Complainant)
Vs.

Babasaheb @ Krishnat
Durgappa Powar … Respondent
Age 27 Years, (Org. Accused)
R/o Parite, Taluka Karveer,
Dist. Kolhapur.

Mr. J.P. Yagnik, APP for the Appellant-State.
Mr. S.A. Ingawale for the Respondent-Accused.

CORAM : INDRAJIT MAHANTY
PRAKASH D. NAIK, JJ.

RESERVED ON : 22nd NOVEMBER, 2018
PRONOUNCED ON : 7th JANUARY, 2019

JUDGMENT (PER : PRAKASH D. NAIK, J.)

1. This is an appeal under under Section 378(1) of Code of

Criminal Procedure, 1973 against the judgment and order of

acquittal dated 30th June, 1997 passed by Additional Sessions

Judge, Kolhapur in Session Case No. 206 of 1996.

2. The Respondent accused was charged for an offence

punishable under section 498-A, 306 of Indian Penal Code. The

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prosecution case as emanates from the evidence of P.W. No.3

Hanumant Balu Gadivadar (father of deceased Kamal) is that

Respondent/accused is the husband of deceased. Their marriage

was solemnized in June, 1995. According to the said witness after

the marriage, his daughter Kamal had joined the matrimonial

home. The accused was residing with his brother Balu and his

wife. After few days from the marriage P.W. No.3 went to the

house of his daughter Kamal to invite her and at that time Kamal

had stayed with her parents for about seven to eight days and then

again returned to her matrimonial home. She was again brought

for ‘Panchami festival’ at parental home and she stayed with her

parents for five days. P.W.3 had again visited her daughter’s

house to invite her for Gauri festival but she was not sent to

parent’s house. Even on Dasehra, Kamal was not sent to her

parental home. About eight days prior to Diwali festival, P.W.3

had gone to her daughter’s house to invite her and at that time she

had accompanied him to parental home. On inquiry about her well

being, Kamal had disclosed to P.W.3 that her husband is assaulting

her and she is subjected to ill-treatment. She also disclosed that

her husband used to twist her hand and attempted to press throat.

The accused told her that if she dies he would perform another

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marriage. She also disclosed that she had seen her husband

(accused) sleeping with his sister-in-law (wife of Balu i.e Rekha).

Accused visited the house of the complainant after about 15 days

from Diwali Festival to take Kamal back to her matrimonial home,

however she did not accompany him. 15 days thereafter he again

came to take Kamal back to her matrimonial home. Since the

mediator was not present Kamal was not sent with accused.

Thereafter accused came with two persons with him to take Kamal

back to his house. P.W. No.3 went to call police patil of village.

However, the accused had left the house before his arrival.

However, the brother of the accused was waiting at the house of

the P.W.3/complainant. Police Patil made inquiry with him.

Brother of accused gave assurance that they would give good

treatment to Kamal. On the next day, accused and his brother

came to the house of the complainant to take Kamal to house.

Police Patil was called. The accused and his brother gave

assurance that they would treat her well. She was sent with them.

On 1st February, 1996, brother of accused, by name Maruti came

to house of P.W.3 with tempo. He told PW3 that Kamal is not

keeping well and she has been admitted in the hospital. She is

insisting that she wants to see her parents and they should

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accompany him. P.W. No.3, his wife, mediators Kafanna and

Bhima Gargoti and took his mother in law Hanmarra and went to

the village of accused i.e Parite. Maruti took them to house of

accused. Thereafter they visited CPR hospital, Kolhapur, in

different vehicle and saw deadbody of Kamal. There were ligature

marks on the throat of deceased. On inquiry P.W. No.3 told the

police to hand over the dead body of the deceased to the accused

as he was not feeling well. Thereafter dead body was carried to

village Parite and funeral was completed and PW 3 had gone back

to his village. On the next day, he visited Karveer Police Station,

Kolhapur and lodged the complainant against the accused. FIR

was registered on 3rd February, 1996. On completing

investigation, chargesheet was filed.

3. Charge was framed on 24th February, 1997 for the offences

under sections 498-A, 304B and 306 of Indian Penal Code before

the trial Court. Prosecution examined nine witnesses. P.W. No.1

Nana Tukaram Chougule is the panch witness for the spot

panchanama. P.W. No.2 Subhash Powar is nephew of accused.

He provided information to the police about death of Kamal. P.W.

No.3 Hanmant Gadivadar had lodged the complaint against the

accused. He is father of deceased Kamal. P.W. No.4 Kanfanna

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Gadivadar is the mediator. He has not supported to the

prosecution case. He was declared hostile. P.W. No.5 Subhash

Jadhav is the village Police Patil. P.W. No.6 Smt. Shewanta

Gadivadar is the mother of deceased Kamal. P.W. No.7 Smt.

Sonabai Gadivadar is the aunt of deceased. P.W.No.8 Shivaji

Yadav was PHC posted to Karvir Police Station and P.W. No.9

Madan Patil was attached to Karvir Police Station Kolhapur as

Police Inspector.

4. After examination of witnesses and recorded the statement

of accused was recorded under Section 313 of Code of Criminal

Procedure. The defence of accused reflected in the said statement

is that his family is well educated and reputed. He has no concern

with incident. At the time of funeral, parents and other relatives

of deceased were present alongwith him. On next day, father of

deceased demanded an amount of Rs.50,000/-. He also told that

atleast accused should make arrangement to pay the amount of

Rs.25,000/- otherwise he will lodge the complaint against accused.

However, he did not pay the amount. Hanmanta alongwith his

brother and relatives visited police station and lodged complaint

against accused alleging that he had relations with Rekha etc.

which is false. The story has been made out by complainant at the

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time of lodging the complaint. Learned 3 rd Additional Sessions

Judge Kolhapur vide judgment and order dated 30 th June, 1997

acquitted the Respondent accused for the offences under Section

498-A, 304B, 306 of Indian Penal Code.

5. The trial Court after analysing the evidence relied by the

prosecution had arrived at the findings that the prosecution has

not proved the offence beyond reasonable doubt. It was also

observed that there are two probabilities, and probability in favour

of the accused would prevail. The prosecution has not proved that

deceased was subjected to cruelty by the accused beyond all realm

of doubt. It was further observed that there is no sufficient

evidence to establish that deceased was subjected to cruelty. In

the absence of specific act of commission and omission, the Court

is not in a position to decide whether the conduct of the accused

amounted to cruelty within the meaning of Section 498A of Indian

Penal Code. The vague statement that the deceased was tortured

to cruelty is not sufficient to attract of said provision. The

provision of section 113 A of the Evidence Act could be invoked

only when the prosecution discharged its initial onus of proving

that accused subjected his wife to cruelty and that she has

committed suicide due to cruelty. The prosecution has failed to

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establish that the accused was having illicit relationship with wife

of his brother. No complaint was lodged in that regard and

version of witnesses is coming up after the death of deceased.

6. Learned APP Shri J.P. Yagnik submitted that judgment of the

trial Court is erroneous. It is contrary to evidence on record. He

further submitted that evidence of P.W No.3, P.W. No.5, P.W. No.6

and P.W. No.7 establishes that deceased was subjected to cruelty

by the accused. Said witnesses have deposed that victim was

subjected to harassment. She was assaulted by the accused. He

was having illicit relationship with Rekha. Deceased had protested

about the same. The said fact caused immense mental torture to

the deceased. It is further submitted that trial Court has ignored

the presumption under Section 113A of Indian Evidence Act which

relates to abetment as to suicide by married women. The marriage

in this case was solemnized in June, 1995 and the wife had

committed suicide on 1st February, 1996. Mr. Yagnik submitted

that wife of accused had committed suicide within a period of

seven years from the date of her marriage and therefore it will

have to presumed having regard to all circumstances of the case

that suicide has been abetted by her husband. It is submitted that

the presumption under section 113B of the Evidence Act has to be

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invoked in the present case. The said presumption relates to

dowry death. Minor omissions or contradictions would not

demolish the prosecution case. The evidence of independent

witness. P.W.5, Police Patil has supported prosecution case. The

complainant was in a disturbed state of mind. He was not keeping

well and had reached at odd hours at the village of accused and in

the circumstances did not lodge complaint on same day and body

of deceased was handed over to accused. Death was caused by

hanging. Deceased had informed her family about ill-treatment

and illicit relationship of accused.

7. Learned counsel for the Respondent accused Shri Ingawale

submitted that there is no perversity in the finding of the trial

Court. The judgment is based on analysis of the evidence adduced

by the prosecution and in the light of the evidence the trial Court

has rightly acquitted the accused. It is submitted that trial Court

has categorically observed that prosecution has failed to establish

that deceased was subjected to cruelty. The trial Court has also

arrived at finding that the case of the prosecution that accused was

having illicit relationship with wife of Balu is not proved beyond

reasonable doubt. Although, it may be proved that wife has

committed suicide, the prosecution is required to establish that the

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accused has abetted in commission of suicide by wife. The

evidence of Police Patil, evidence of father, mother and aunt of the

deceased does not inspire confidence. The FIR was lodged

belatedly. The complainant had not made any grievance against

the accused and he had consented for handing over the dead body

of deceased to accused and thereafter funeral was performed at

village Parite which was attended by PW 3 and others. The

complaint was lodged thereafter which is afterthought. There are

no previous complaints. The trial Court has taken a plausible view

which do not require interference in appeal against acquittal.

8. Having heard both the sides, we have minutely scrutinized

the evidence on record. The prosecution has examined nine

witnesses. Although, we find that judgment of the trial Court is

not happily worded with regards to finding recorded in relation to

issue No.1 with regards to suicide committed by wife of accused by

hanging at Parite in the house of accused as not proved, the

analysis of evidence and further finding recorded on the basis of

evidence qua cruelty, abetment of suicide would not vitiate the

impugned judgment and order.

9. P.W. No.2 is the nephew of the accused. He had provided

information about the death of the deceased to police vide Exh.21.

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In his cross-examination he has deposed that the financial position

of the accused was sound. Kamal had told him that she did not

allow accused working in stone quarry. He further deposed that

there was no trouble on the part of the accused to Kamal. After

Postmortem, dead body was handed over to the accused for last

rites. Parents of Kamal (deceased) alongwith other relatives were

present. On inquiry by the police, the parents told that they have

no grievance to hand over the dead body of the deceased to

accused. Thereafter cremation was done jointly by the accused

and relations of the deceased. P.W. No.3 is the father of the

deceased. He has deposed that Kamal had visited parental home

and there was attempted by the accused to take her back to

matrimonial home. Initially, Kamal was not sent back with

accused and subsequently on assurance of providing good

treatment, Kamal was sent back to husband’s house. After a period

of one and half months thereafter Kamal committed suicide. From

his evidence, it is apparent that accused was interested in taking

Kamal back to matrimonial home. He had repeatedly visited

complainant’s house in that regard. From his cross-examination, it

can be seen that after Diwali, Kamal had stayed with them for a

period of about three months. No attempt was made by him to

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inform the police about the grievances made by his daughter. He

did not lodge any complaint with the Police Patil about the ill-

treatment to his daughter. Even Police Patil did not tell him to

lodge complaint. Police had asked him as to whom dead body is

to be handed over and he had stated that he has no objection to

deliver the dead body to accused. He was asked by the police

whether he was having any objection to this effect. On stating that

he has no grievance against the accused, the deadbody was given

to accused. The complainant and his wife attended the funeral.

They went to their village and thereafter FIR was lodged on 3 rd

February, 1996.

10. P.W. No.4 had allegedly acted as mediator. He has not

supported the prosecution case. The witnesses was declared

hostile. P.W. No.5 is the Police Patil of the village. He has stated

that P.W. No.3 had told him that there was a dispute between

Kamal and her husband. Her husband had come to fetch her back.

The witness met accused and his brother and convinced them to

behave properly and to avoid quarrels and allow Kamal to cohabit

happily. Accused gave assurance that they would give good

treatment to Kamal. In the cross-examination, it is deposed that

being Police Patil, he is required to record FIR concerned with

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cognizable offence or to give information about the same to the

police. He has not recorded the complaint with regards to

grievance of Kamal. He had not informed about the same to the

police station before 3rd February, 1996 there was no information

about cognizable offence to him in connection with Kamal and

therefore he had been informed the concerned police station about

it. P.W. No.6 is the mother of the deceased. She has reiterated the

version of complainant. She has deposed that Kamal had informed

her about the illicit relationship of accused with wife of his

brother. In the cross-examination she has deposed that on

disclosure of alleged ill-treatment by their daughter, she or other

family members and even mediators had not gone to the village of

accused in that context to ask the accused about the same as he

was always involves in quarrels. The witness denied that Kamal

had come to the house at the time of Panchami Festival and that

son-in-law came to call Kamal after about month and contradicted

her statement before the police. She has denied that she had told

the police that there is no grievance against the accused on their

part and thereafter dead body was given to the accused. However,

she has deposed that she had not told the police that the accused

is the person who is responsible for death of her daughter and he

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should be arrested. They came to hospital in the night. After the

funeral, they left the village of accused. Police were there in the

hospital when they visited hospital to see their daughter. They

attended funeral at Parite. P.W. No.7 has deposed that she is the

aunt of deceased. She was residing in the same village. Kamal

had told her that accused is having illicit relationship with wife of

his brother and she had seen them sleeping on two to three

occasions. Kamal told her that once accused had lost his chain and

on search it was found in pocket of the accused. She also told that

accused gave threats to Kamal. She has stated that she had not

came to Parite as well as Kolhapur on death of Kamal alongwith

her mother. She had not stated before the police that her brother

told her about disclosure of ill-treatment to Kamal and thereafter

she made inquiry with her to that effect. P.W. No.8 is PHC

attached to Karvir Police Station. He has deposed that on 2 nd

February, 1996 he recorded the statement of various witnesses.

Nothing was transpired about the commission of any offence in

these statements and therefore the offence was not registered. He

also deposed that on the say of the parents of deceased dead body

was given in the custody of the accused. On 2 nd February, 1996

there was no grievance of parents against the accused and

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therefore the offence was not registered. P.W. No.9 was attached

to Karvir Police Station as Police Inspector. He had conducted

further investigation. He had recorded the statement of witnesses.

In the cross-examination it is stated that he had recorded the

statement of number of witnesses to investigate as to whether

there is substance in the allegations that the accused had illicit

relationship with Rekha. The statement of neighbours were also

recorded. However, nothing incriminating was transpired against

the accused in those statements.

11. On analysis of the aforesaid evidence, it is apparent that the

incident of death of the deceased had occurred within one year

after marriage. It is also evident that Kamal (deceased) had visited

her parent’s house and although accused made attempts to bring

her back, initially, the family of the deceased had refused to send

back her to matrimonial home. Subsequently Kamal was allowed

to go with accused. There are no previous complaints. The

evidence of the witnesses does not disclose that the accused had

made any demand of dowry at any point of time. P.W 3 has

stated that victim had disclosed to him that accused is assaulting

her and giving ill-treatment. The reason for ill-treatment stated by

victim to P.W.3 is that accused is having illicit relation with Rekha.

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The question which falls for consideration is whether the accused

have caused cruelty to the victim as envisaged under Section 498A

of Indian Penal Code and abetted the deceased to commit suicide

or committed the offence of dowry death. The evidence depicts

that after the information was provided to the parents of the

deceased that victim is ailing and she had been hospitalized the

complainant and his wife had proceeded to the village of the

deceased. It also apparent that P.W.3 had picked up his relative as

well as one mediator while proceeding to house of accused.

Thereafter it was learnt that the Kamal has expired and there was

ligature mark on her throat. From the cross-examination of P.W.

No.3 it can be seen that he did not make grievance against the

accused and consented for handing over dead body of deceased to

him. The complainant and other relatives of the deceased had

participated in funeral rites of deceased and thereafter they left for

their village and thereafter the FIR was lodged. P.W.No.6 has

deposed that they had grievance against the accused. The

evidence of witness shows that police were present in the hospital

on the occasion when she alongwith others went to see dead body

of deceased. Dead body was given to the accused by police, she

attended last rites. Witnesses had not told the police that the

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accused is the person who was responsible for death of their

daughter and he should be arrested. It is also relevant to note that

the evidence of P.W. No.8 refers to recording of statement of

various witnesses on 2nd February, 1996 and nothing was

transpired about the commission of any offence in those statement

and therefore offences was not registered. There was no grievance

of parents of the deceased and hence FIR was not registered.

From the evidence of P.W. No.9 it is evident that statement of

various witnesses were recorded and nothing incriminating

regarding allegations that the accused had illicit relationship with

the brother’s wife was noticed. Thus, there was no evidence to

support the allegations that the accused had any illicit relationship

as alleged by the complainant and others. Independent witness

P.W 4 had turned hostile. Police Patil (P.W.5) has not referred to

alleged illicit relationship of accused with Rekha. He has stated

that he had no information about cognizable offence before 3 rd

February, 1996. P.W. No.7 has stated that in her statement she

had not stated that her brother (P.W.3) had told her about

disclosure of ill-treatment by victim and that she made enquiry to

this effect. Thus, the prosecution is trying to establish the case

about the alleged illicit relationship on the basis of evidence of the

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P.W.3, P.W.5 and P.W.7. This fact is revealed only after death of

victim. There was no earlier complaint. There is no corroborative

evidence. Considering evidence of P.W.8 and P.W.9 it would be

difficult to accept the version of the said witnesses with regards to

alleged relationship of accused. Thus, the finding of the trial

Court that the prosecution has not established the factum of illicit

relationship of the accused with his brother’s wife cannot be

faulted.

12. Section 113 A of Evidence Act relates to presumption as to

abetment of suicide by married women which reads as follows:

“113-A Presumption as to abetment of suicide by a married women
When the question is whether the commission of suicide by a
woman had been abetted by her husband or any relative of her
husband and it is shown that she had committed suicide within a
period of seven years from the date of her marriage and that her
husband or such relative of her husband had subjected her to
cruelty, the Court may presume, having regard to all the other
circumstances of the case, that such suicide had been abetted by
her husband or by such relative of her husband.”

On reading the aforesaid provision it is apparent that the

presumption can be drawn if it is established that the married

women has committed the suicide within a period of seven years

from the date of her marriage and that her husband and her

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relative had subjected her to cruelty. There has to be evidence

that the married women is subjected to cruelty. The presumption

under Section 113A would obviously arise only when the

necessary ingredients in order to attract same are established.

Legislative mandate of Section 113A is that when a woman

commits suicide within seven years of her marriage and it is shown

that her husband or any relative of her husband had subjected her

to cruelty as per the terms defined in Section 498A of Indian Penal

Code, the Court may presume having regard to all other

circumstances of the case that such suicide has been abetted by the

husband or such person. Though a presumption could be drawn,

the burden of proof showing that such an offence has been

committed by the accused under section 498A of Indian Penal

Code is on the prosecution. The prosecution in the present case

has not established that victim was subjected to cruelty beyond

doubt. On analysis of the evidence in the present case, there is no

cogent evidence to establish cruelty or abetment to commit suicide

in the present case. Section 498A of Indian Penal Code provides

punishment for cruelty by husband or relative of husband to

woman cruelty as defined under the said section means any willful

conduct which is of such a nature as is likely to drive woman to

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commit suicide or to cause grave injury or danger to life, limb or

health (whether mental or physical) of the women or harassment

of the woman where such harassment is with a view to coercing

her or any person related to her to meet any unlawful demand for

any property or valuable security or is on account of failure by her

or any person related to her to meet such demand. Learned APP

also relied on presumption under Section 113 B of the Evidence

Act. The said presumption can be invoked when the question

whether the person has committed the dowry death of women and

it is shown that soon before her death such women had been

subjected by such person to cruelty or harassment for, or in

connection with, any demand for dowry, the Court shall presume

that such person had caused the dowry death. Explaination to the

said section provides that for the purpose of this section, “dowry

death”, shall have the same meaning as in Section 304-B of the

Indian Penal Code. There is no cogent evidence with regards to

demand of dowry to establish the charge under Section 304B of

Indian Penal Code. The prosecution has also failed to prove that

accused have abetted suicide. The charge was framed for the

offence punishable under Sections 498A, 304B and 306 of Indian

Penal Code. The evidence of P.W.3 and P.W.6 or any other

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witnesses does not mentioned any demand of dowry at the

instance of the accused. Considering the evidence on record none

of the requirement to invoke the said presumption are made out.

13. Apart from the aforesaid analysis, we are also conscious of

the fact that this Court is dealing with the order of acquittal. It is

settled law, if the view taken by the trial Court is plausible view,

High Court is not justifiable in reversal merely because a different

view is possible. Order of acquittal is not interfered by the

Appellate Court where the judgment of the trial Court is based on

evidence and the view taken is reasonable.

14. In the case of A Shankar Vs. State of Karnataka1, it was

observed in paragraph 19 of the said decision that it is settled legal

proposition that in exceptional circumstances the appellate court

under compelling circumstances should reverse the judgment of

acquittal of the court below if the findings so recorded by the court

below are found to be perverse i.e the conclusions of the court

below are contrary to the evidence on record or its entire approach

in dealing with the evidence is found to be patently illegal leading

to miscarriage of justice or its judgment is unreasonable based on

erroneous law and facts on the record of the case. While dealing

1. 2011(4) Mah. Law Journal (Cri) SC 19

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so, the appellate court must bear in mind the presumption of

innocence of the accused and further that acquittal by the court

below bolsters the presumption of his innocence. In the case of

Ganpat Vs. State of Haryana2 it was observed that the following

principles have to be kept in mind by the appellate Court while

dealing with appeals, particularly, against an order of acquittal.

“i) There is no limitation on the part of the appellate court to
review the evidence upon which the order of acquittal is founded and
to come to its own conclusion.

ii) The appellate court can also review the trial court’s conclusion
with respect to both facts and law.

iii) While dealing with the appeal preferred by the State, it is the
duty of the appellate court to marshal the entire evidence on record
and by giving cogent and adequate reasons may set aside the
judgment of acquittal.

iv) An order of acquittal is to be interfered with only when there
are ‘compelling and substantial reasons’ for doing so. If the order is
‘clearly unreasonable’, it is a compelling reason for interference.

v) When the trial court has ignored the evidence or misread the
material evidence or has ignored material documents like dying
declaration/report of ballistic experts etc. the appellate court is
competent to reverse the decision of the trial court depending on the
materials placed”.

15. Keeping in mind the aforesaid principles and on scrutinizing

the evidence which is analysed herein above, we do not find that

2. (2010) 12 SCC 59

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appellant has made out case to disturb the judgment of acquittal

passed by the trial Court. Thus the appeal is devoid of merits and

deserves to be dismissed.

ORDER

Criminal Appeal No. 745 of 1997 is dismissed.

( PRAKASH D. NAIK, J. ) (INDRAJIT MAHANTY, J.)

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