TRINATHA SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) Altogether seven accused are the petitioners in the aforesaid two Criminal Revisions. They faced the trial in G.R. Case No. 597 of 1983 in the Court of J.M.F.C., Patrapur in the District of Ganjam for the offence alleged under Sections 332/294/323/379/34, I.P.C. Learned J.M.F.C., Patrapur convicted them for the aforesaid offences except the offence under Section 294/34, I.P.C. and sentenced each of them to undergo R.I. for two months for the offence under Section 332/34, I.P.C. and R.I. for one month for the offence under Section 379/34, I.P.C. and no separate sentence was awarded for their conviction under Section 323/34, I.P.C. The Judgment was delivered by the learned J.M.F.C. on 17.2.1990.

(2.) As against that conviction petitioners in Criminal Revision No. 573 of 1990 filed Criminal Appeal No. 43/1990 (41 of 1990 GDC) and the petitioners in Criminal Revision No. 607 of 1990 filed Criminal Appeal No. 42 of 1990 (40 of 1990 GDC). Learned Second Addl. Sessions judge, Berhampur disposed of both the Criminal Appeals by a common judgment i.e. the impugned judgment delivered on 19.10.1990. Learned Addl. Sessions Judge on an analysis of the evidence and the findings recorded by the Magistrate confirmed the order of conviction for the offence under Section 332/34 I.P.C. but acquitted the petitioners from the charge for the offence under Section 379/34, I.P.C. on the ground that there was no proof of committing theft of bi-cycles of the Excise staff members of the raid party. The appellate Court did not take note of the conviction under Section 323, I.P.C. and nothing was mentioned about that order of conviction perhaps due to the fact that no separate sentence was awarded by the trial Court for the said offence besides the fact that the act alleged against the petitioners was squarely covered by the offence under Section 332, I.P.C. As noted above, the appellants in the aforesaid two appeals have filed the aforesaid two revisions challenging the said order of conviction and sentence of the courts below and both the revisions are disposed of by this common judgment.

(3.) Prosecution case is that on 20.6.1983 the Excise Officers and staff consisting of P.W. 8, S.I. of Excise; P.Ws. 1 and 5, A.S.Is. of Excise; and P.Ws. 2, 3, 6, 7 and some others as the Excise Constables conducted a raid in the locality of village Boribada and caught accused Venkayya (petitioner No. 1 in Cri. Revision No. 607 of 1990) and accused Ghana Sahu (did not face trial being absconding). A mob under the leadership of accused Trinath Sahu (petitioner No. 1 in Criminal Revision No. 573 of 1990) and K. Gopal Sahu (petitioner No. 4 in Criminal Revision No. 607) arrived at the spot, looted the seized apparatus used for preparation of illicit liquor, freed the arrested accused persons and all of them, which includes the petitioners and the absconding accused persons, indiscriminately attacked members of the raid party at the instance of accused Trinath Sahu and as a result of that some of them sustained injuries and all of them (members of the raid party) ran away to save their life leaving their hired bi-cycles at the spot. The incident was reported in the police station and the injured were medically examined on police requisition. P.W. 8 is the informant. The Doctor P.W. 10 granted injury certificates Exts. 11 to 14 respectively in favour of P.Ws. 6, 3, 2 and 1. On completion of a routine investigation charge-sheet was filed against the petitioners and the other absconding accused persons. Charge for the aforesaid offences was framed and the petitioners stood the trial. Altogether 12 out of the 13 charge-sheeted witnesses were examined. Besides the above witnesses. P.W. 4 was the person who had given the bi-cycle on hire to the Excise staff. P.Ws. 11 and 12 were the witnesses to the seizure of the articles at the time of raid and P.W. 9 was the Investigating Officer. P.Ws. 11 and 12 did not support the prosecution.