RAHESWARI MOHAPATRA Vs. NANDIGHOSE MOHAPATRA AND ORS.

JUDGEMENT

(1.) THIS appeal is directed against the order of acquittal of the Respondents who were charged under Section 395 , Indian Penal Code. Complainant claims that she is the wife of one Hazari Mohapatra. Her case is that two days after the death of Hazari, the Respondents on 6 -6 -1976 at about 8 a.m. came to the shop of the complainant. She was caught hold of by Respondent No. 1 and was dragged to the road. During that time many persons had gathered in the house of one Ekadasia P.W. 3. Inspite of protest by the people the articles in the shop were taken away under threat by the Respondents. She reported the matter at the Police Station but the police did not take any action and thereafter filed the petition of complaint.

(2.) UNDISPUTEDLY Respondent Nos. 2 to 5 are brothers of Respondent No. 1. It is admitted that there is dispute between the complainant and Respondent No. 1. Complainant claims to be the married wife of late Hazari which is denied by Respondent No. 1. Respondent No. 1 also claims to be the adopted son of Hazari which is denied by the complainant. There is a deed of adoption executed by Hazari Mohapatra in favour of Respondent No. 1. A suit for setting aside the deed of adoption is pending in the Civil Court which was filed by Hazari Mohapatra. Two days before the date of alleged occurrence, Hazari died. The stand taken by Respondent No. 1 is that the complainant wanted to take away the properties belonging to Hazari and he tried to obstruct. Respondent No. 1 has examined the police officer of the Police Station who has put the date of the alleged occurrence and the information lodged by Respondent No. 1 against the complainant alleging that the complainant was trying to remove the properties belonging to Hajari and he has sought the help of police.

(3.) THE evidence of P.W. 5 also is not consistent all through out. The narration of facts given by her in Court shows that a major portion of all the material particulars is absent in the F.I.R. lodged by her. About the Respondents going to the house of P.W. 5 the evidence of P.W. 5 and that of her witnesses are different. The description or the incident of attack on p w. 5 given by her is also unbelievable as other witnesses examined by her do not support such contention. If the incident would have taken place as narrated by P.W. 5, then in natural course of human conduct the other witnesses could have been able to describe the details. When P.W. 5 says that Respondent No. 1 caught hold of the tuft of her hair P.W. 2 says the name of another person who have done so. The story given by P.W. 5 at the initial stage and the story given, by her at the time of trial is self contradictory and, as such, no reliance can be placed on her testimony about this incident. P.W. 5 narrated the incident and names the persons who entered inside the house and who came out and the persons who were said to have removed the articles but on this count the evidence' of P.W. 3 contradicts the evidence of P.W. 2. So also the evidence of P.W. 4 contradicts the evidence of P.W. 2. The evidence of P.Ws. 2, 3 and 4 is contradictory to that of P.W. 5. As regards question of threatening, the evidence of P.Ws. 1, 2, 3 and 4 is also not worthy of credit. While the complainant has come out with a case that the Respondents threatened her, P.W. 2 says that none of them had opened their mouth. There is also contradiction on material particulars in the evidence of all the prosecution witnesses. Complainant has further tried to say that the Respondents came to her house being armed with weapons but in her initial statement at the time of lodging complaint, she did not make any statement regarding such a fact. She states that she cried while she was being dragged and assaulted by the Respondents but this fact is not supported by any of her witnesses.