PABITRA MOHAPATRA ALIAS SUNDARA Vs. RAHASBEHARI SAMANTARA

JUDGEMENT

(1.) THE Petitioner was convicted under Sections 323, Indian Penal Code and 24 of the Cattle Trespass Act. He was however sentenced under Section 24 of the Cattle Trespass Act to a fine of Rs. 51/ - in default to undergo R.I. for 15 days. No separate sentence was passed under Section 323, Indian Penal Code. An appeal filed by the Petitioner before the learned Additional Sessions Judge was dismissed.

(2.) PROSECUTION case is that on 9 -7 -1972 in the afternoon the Petitioner's cow damaged the paddy plant in the field of the complainant (P.W.1). While the complainant was taking the cow to the pound, the Petitioner obstructed him and demanded release of the cow. On the complainant's refusal the Petitioner dealt two blows with a Panchan on P.W. 1 and rescued the cow. The Petitioner's case is one of denial. The learned Courts below accepted the prosecution story and rejected the defence version.

(3.) THE first contention has no substance. The learned Sessions Judge in paragraph 5 of his judgment discussed the evidence of PWs. 1 to 3 and recorded a finding to the effect. "I am not prepared to accept the prosecution case that Appellant's cow 'caused any damage to complainant's paddy crop". In that connection he held that P.W. 1 was the solitary witness on the question of damage and his testimony stands uncorroborated. This is an error of record. On perusal of the evidence of these three witnesses it is clear that P.W. 2 went to see the damage shown by the complainant immediately after the occurrence. Nothing has been brought out in his evidence that he is unreliable or he did not see the occurrence though substantial cross -examination was made. It may be that P.W. 2 might not have been present at the time when the assault was made. But his evidence has not in any way been demolished that he saw the injury on P.W. 1 and saw the damage on the field. He has got his land at a distance of about 400 cubits to the north of the land of P.W. 1. The complainant showed him the damage on the land and he saw a portion of the paddy plant damaged. P.w. 3's evidence fully supports P.W. 1. He was working inside his bari which was unfenced and he saw the assault by the Petitioner on P.W. 1. He clearly stated that the place of assault and the damaged land are visible to his bari. He went to the place of assault and to the place of damage being called by P.W. 1 and noticed some damage to the paddy on the land. Nothing substantial has been elicited in his cross -examination to demolish his assertion in the examination -in -chief. The learned magistrate was therefore perfectly justified in holding that the Petitioner's cow damaged the paddy plant of P.W. 1 and at the time P.W. 1 was taking the cow to the pound the Petitioner assaulted P.W. 1 when he did not agree to release the cow. The learned Sessions Judge's finding on this point cannot be sustained that P.W.1's evidence is uncorroborated.