STATE Vs. BIPRA SAMAL

JUDGEMENT

(1.) THIS appeal has been directed against the judgment and order passed by the learned Sessions Judge, Dhenkanal, setting aside the judgment and order passed by the learned sub -divisional Judicial Magistrate, Hindol, convicting the Respondent under Sections 458 and 326 of the Indian Penal Code and sentencing him thereunder to undergo rigorous imprisonment for a period of three years under Section 326 of the Indian Penal Code and to pay a fine of Rs. 500/ - and in default of payment thereof, to undergo rigorous imprisonment for a further period of three months and to undergo rigorous imprisonment for one year under Section 458 of the Indian Penal Code with a direction that the sentences would run consecutively by accepting the case of the prosecution that at about midnight in the night of the 16th/17th March, 1975, the Respondent, being armed with a Tangi and being accompanied by the acquitted co -accused person, namely, Srikara Sarnal, who had come with a torch light to facilitate the commission of the offence by the Respondent, dealt strokes by the Tangi (M.O. I) on the person of Banshidhar Gadnaik (P.W. 2) while he was sleeping with his wife Kanchan Dei (P.W. 1) with a lantern burning dimly in the house which was witnessed by P.Ws. 1 and 2 after which the Respondent took to his heels being chased by the co -villagers including Rajeswar Gadnaik: (P.W. 5) and Gauranga Sahu (P.W. 6) who could identify the Respondent as the person running away on the basis of the first information report lodged by P.W. 1. investigation proceeded and on its completion, the Respondent and the co -accused person were prosecuted.

(2.) MR . A. Rath, the learned Additional Standing Counsel, has taken me through the relevant evidence and has submitted that the findings recorded by the learned Sessions Judge acquitting the Respondent are unreasonable and perverse calling for interference by this Court in appeal. Mr. J.K. Misra, the learned Counsel for the Respondent, has, however, submitted that the learned Sessions Judge has taken the correct view on the evidence and that although the learned Judge did not record his findings on the entire facts and based his conclusions only on the non -explanation of the injured on the person of the Respondent and the delay in lodging the first information report, even on evidence as to the occurrence, no case had been made out.

(3.) ON a bare perusal of the judgment passed by the learned Sessions Judge, it would be noticed that he had not carefully considered the evidence and had recorded no findings whatsoever as to whether or not the occurrence had taken place as alleged by the prosecution. He has recorded a finding that the injuries on the person of the Respondent had not been explained by the prosecution without keeping m mind the principle that the prosecution is not obliged to explain the injuries on the person of an accused per son unless the injuries had been caused during the course at occurrence and that the injuries were not superficial in nature. In this connection, reference may be made to the principles laid down in the case of Jagadish v. State of Rajasthan : A.I.R. 1979 S.C. 1010. As would appear from the statement of the Respondent himself, he had sustained injuries on the morning of the 17th March, 1975 which, as alleged by him, was owing to the assault on his person by P.Ws. 5 and 6. The case of the prosecution was that the occurrence had taken place at about midnight on the previous day. Thus there was complete absence of evidence to show that the Respondent had sustained injuries during the occurrence and as a matter of fact, the learned Sessions Judge had not come to any finding that the Respondent had sustained injuries during the occurrence. Although as would be noticed from the evidence of P.W. 11, the injuries including a fracture on the person of the Respondent could not be said to be superficial, in these circumstances, it would not be incumbent on the prosecution to explain the injuries on the Person of the Respondent.