PANKAJ CHARAN SAHU Vs. NILAMANI MOHARANA AND ANR.

JUDGEMENT

(1.) THIS is an appeal against an order of acquittal passed by Shri U.N. Misra, Sessions Judge, Cuttack, On 11 -7 -1962 in Criminal Appeal No. 199 -C of 1961. The facts are that on 2 -10 -1959 the complainant found the Respondents and two others uprooting some fence put by the complainant around his cocoanut tree and some other place. On the complainant's protest the accused persons abused him and ultimately assaulted him. The complainant approached the police. But as no action was taken he procured a medical certificate (Ext. 4) and filed a complaint. The trial court convicted the Respondents Nilamani and Lakshman, who are father and son under Section 323 of Indian Penal Code and sentenced them each to pay a fine of Rs. 20/ - in default to undergo R.I. for a period of three days. The Respondents filed the aforesaid Criminal Appeal to the learned Sessions Judge who acquitted them.

(2.) THE defence of Nilamani is one of alibi. Lakshman took the defence of denial. On the contrary he advanced a case that the Appellant entered into his house and assaulted him. He filed a counter case in which the Appellant was acquitted.

(3.) THIS being an offence of a petty nature I was at first disinclined to interfere with the order of acquittal, particularly when the presumption of innocence of the accused persons was further reinforced by the order of acquittal. But after going through the records and after having fully heard the learned advocates on either side I am satisfied that the learned Sessions Judge wrote a judgment, possibly without going through the records and without applying his mind to the case. The operative portion of his judgment by which he set aside the order of conviction, is paragraph 4. The entire paragraph was read sentence by sentence and Mr. Ghose appearing for the Respondents was asked to point out to me the reasons in any of the: sentences by which he discarded the prosecutions case and the finding of the trial court. We are at a loss to find any convincing reason at all excepting a bare repetition of facts. One of the reasons given was the evidence of P.W. 4 would how that their, was fence between the land of P.W. 1 and the accused Nila and there was no ridge also. Parties are adjacent neighbours. Their Baris are also adjoining. It is the common case of the parties that their adjoining Baris, are not intervened by any fence, but are intervened merely by a ridge. This is also the evidence of all the witnesses and in the recording of P.W. 4 statement there appears to be some error. The sentence is "There is no fence" between the land of P.W. 1 and the accused, but there is no ridge. Obviously, the word 'no' before the word 'ridge' has been written by mistake as it does not fit in with the conjunction 'but' and that is the consistent case of all the witnesses. Another reason given in the Appellate judgment is, "No satisfactory explanation has been given why the injuries were examined at such a belated stage". P.W. 1 stated that he at first approached the police. The police did not take cognisance and so he himself approached the .Doctor (P.W. 2) and obtained the injury certificate. The explanation is quite satisfactory and on this ground the case cannot be discarded. The learned Judge made a comment, "the police would not have ordinarily hushed up such a matter particularly when the information was given at the Lalbag P.S., Cuttack". An offence under Section 323 Indian penal Code is not a cognizable offence and when the complainant -approached the police it was most likely that the police would not at any notice of it. These are all the reasons given in, the, Appellate judgment. Rest are narrative of facts. The statement of the learned Sessions Judge that the evidence of the prosecution witnesses is tainted with interestedness is not borne out from the materials on record or with reference to any facts mentioned in the judgment, or any facts brought to my notice by Mr. Ghose.