KALIPADA DALAL Vs. STATE

JUDGEMENT

(1.) The petitioner Kalipada Dalai was convicted under Section 353, Penal Code, and sentenced to two months' rigorous imprisonment and a fine of Rs. 200/- in default of payment of the fine to rigorous imprisonment for two months more. On appeal the conviction was maintained but the sentence was reduced to one month's rigorous imprisonment and a fine of Rs. 100/- or in default of payment of the fine to rigorous imprisonment for one month more.

(2.) The case for the prosecution briefly is that on the night of 18-9-1953 at about 9-30 P. M. the petitioner Kalipada Dalai got down at Majdia railway station from an uptrain from Calcutta and was going out of the station platform with luggages some of which he himself carried and others were being carried by some coolies when the Land Customs Inspector Raghunath Das, P. W. 1, who was no duty on the station platform challenged the petitioner and asked him to stop, saying that he wanted to examine the bundles which he suspected contained cotton yarn. The petitioner refused to stop or allow the bundles to be inspected by the Inspector. As the Inspector insisted on opening the bundles the petitioner pushed him aside and went away to the bazar with his coolies. The Inspector followed the petitioner and saw that he entered the shop belonging to one Hazu Hore in the bazar and bolted the door be the room from inside. At 2-15 A. M. that very night the Lands Customs Inspector submitted a written complaint to the Officer-in-charge of Krishnagunj P. S. The Sub-inspector searched the shop in question on the 19th and recovered amongst other things 30 Ibs. of cotton yam in 3 bundles. The case for the prosecution briefly is that the Land Customs Inspector who was a public servant and who wanted to inspect the luggages of the petitioner in the discharge of his official duty was assaulted by the petitioner and prevented from carrying out his official duty. The defence of the petitioner was a plea of not guilty. It is his specific case that he never used criminal force to the Lands Customs Inspector and that he was falsely implicated by the Land Customs Inspector. The learned trial Court and the learned Appellate Court both found that the petitioner pushed the Land Customs Inspector when he insisted on inspecting the luggages of the petitioner and that in doing so he used criminal force to a public servant in the discharge of his official duty and prevented him from carrying out his duties.

(3.) Mr. Mukherjee on behalf of the petitioner first argues that although some of the witnesses say that the Inspector was pushed by the petitioner some other do not say anything about the pushing and he points out that although the learned trial Court took into consideration the evidence of all the witnesses the learned Appellate Court confined itself to those only of the witnesses who spoke of the petitioner having pushed the Land Customs Insepctor but it has not considered at all the evidence of those who did not say anything about the push. It is true that the learned Appellate Court has not referred to the evidence of those witnesses who do not say anything about the push although they claim to have been eyewitnesses and it has based its conclusion that the petitioner was guilty of pushing the Land Customs Inspector on the evidence of 5 witnesses, namely, the Land Customs Inspector himself P. W. 1, his peons P. Ws. 2 and 3 and two shop-keepers of the local bazar, viz., P. Ws. 5 and 6. The learned Judge should undoubtedly have considered the fact that some of the eye-witnesses do not speak of the pushing but merely because he has not considered the evidence of those witnesses, the findings of fact arrived at by him need not be disturbed for there is clear evidence of some of the witnesses to the effect that the Inspector was pushed by the petitioner.