PRAHALLAD MOHAPATRA Vs. NABA PADHAN AND 7 ORS.

JUDGEMENT

(1.) PRAHALLAD Mohapatra filed a complaint against the Respondents alleging that they uprooted and removed Mung crop on 20th of March, 1960, from the lands of the Appellant bearing plot Nos. 487 and 492 with an area of about 2 acres, and damaged the crop putting the Appellant to a loss of Rs. 500/ -. The motive alleged was that the Appellant had impounded their cattle and out of grudge the damage was done. The Respondents deny the occurrence and plead that due to party faction in Grama Panchayat election where both parties were supporting rival candidates the prosecution has been falsely foisted.

(2.) THE learned Magistrate acquitted the accused persons giving them benefit of doubt after discarding the defence plea that the case was falsely foisted on account of rivalry in Grama Panchayat election. The complaint has filed the appeal under Section 417, Code of Criminal Procedure after obtaining necessary leave.

(3.) KEEPING the aforesaid principles in view the prosecution case must be examined. The complainant examined six witnesses. P.W. 1 is the complainant himself. P.W. 5 is not an occurrence witness. He merely proves the receipts (ext. 3 series) issued by him as the keeper of the fine house. P.W. 1 admits in cross -examination that the people of Dihasarichuan and Bhargola are inimical to him. Respondents 1 to 5 and 8 are of Bhargola and Respondents 6 and 7 are of Dihasarichuan. He further states that Sudhakar and Jayram were contesting for Sarpanchship. He was supporting Sudhakar. Accused persons and some other villagers were in support of Jayram. It is therefore clear that on of the complainant's own admission even prior to the date occurrence there is strained feeling between the complainant and the accused persons. It is necessary to examine closely the prosecutions case to determine if a false case has been foisted on account of this bad relationship. P.Ws. 2 to 4 and P.W. 6 are occurrence witnesses. They fully support the case of the complainant. The land from which the Mung crop was removed is visible from the house of P.W. 2. The only comment made by Mr. Mohanty on his evidence was that he had not informed this fact of removal and damage of Mung crop to anybody. P.W. 3 has 5 acres of land near the suit land. The only comment made against his evidence as that he could not identify 25 other persons who were with the accused while uprooting the Mung crop. There is no evidence that these 25 persons were known to any of the prosecution witnesses. Therefore there is no absurdity in his statement. Nothing has been suggested against P.W. 4. Mr. Mohanty referred me to a Khatian (ext. D) to show that P.W. 4 is a co -sharer of p.w.1. On examination however he could not establish the relationship through the Khatian. No such answers supporting the defence suggestion have been obtained from p.ws 1 and 4. Against P.W. 6 the suggestion was that he is the scribe of two handnotes (exts. A and C) in favour of Sarat Chandra, Mohapatra, brother of the complainant, and the complainant respectively. These two handnotes were never put to either P.W. 1 or P.W. 6 to establish that P.W. 6 is the scribe for the family of P.W. 1 in respect of different documents and as such was interested in them. These handnotes were exhibited after the close of the prosecution case through the evidence of d.w. 4 who was not present at the time the handnotes were executed. He merely identifies the signature and the writing of Sunakar on exts. A and C. In cross -examination he admits that he sees the signature and the writing of P.W. 6 on exts. A and C for the first time. He had never any correspondence with Sunakar. His evidence is not sufficient to prove the execution of exts. A and C. He himself is not an attestor to these documents. I would hold that exts. A and C have not been proved and even if they are held to be proved, on their basis no inference can be drawn that P.W. 6 is interested in P.W. 1 as scribe without these questions being put directly to p.ws. 1 and 6 for giving them an opportunity to offer their explanations.