KHAGESWAR KETAKI Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal has been directed against the judgment and order passed by the learned Additional Sessions Judge, Bhawanipatna, convicting the appellant no. 1 Khageswar Ketaki under section 323 of the Indian Penal Code (for short, the Code) and sentencing him thereunder to undergo rigorous imprisonment for a period of six months and convicting the appellant no. 2 Jogi Majhi under section 326 of the Code and sentencing him thereunder to undergo rigorous imprisonment for a period of two years.

(2.) The two appellants and another coaccused person namely, Sibalal Jagat, stood charged under sections 333 read with section 34 of the Code for voluntarily: causing grievous hurt to Balamanta Ganda (P.W. 1) who had been functioning as a Grama Rakshi and while he was discharging his duty as a public servant in the afternoon of October 21, 1979 in Beparipada in the district of Kalahandi. The prosecution had alleged that the three accused persons with three other persons same to the house of Kansan Naik (P.W. 3) on the day of occurrence for taking liquor and took liquor. There ensued a quarrel and a fight among them and in the course of that quarrel, the appellant no. 2 Jogi Majhi sustained a bleeding injury on his head. P.W.3 went to call the Grama Rakshi (P. W. n who came to the spot to intervene and pacify and asked Balaji and Sibalal to go away. When he asked the appellants and the co-accused Sibalal, to leave the place, the appellant no. 2 Jogi snatched away the lathi (M.O.I.) .which P.W.I. was holding and assaulted him on his head by means of that lathi which caused a fracture and P.W. 1 lay on the ground unconscious. It was alleged that the two appellants also assualted P.W. 1 by a Godu (Lota). The appellants and the co-accused then left the spot with the lathi and the Lota. The Naib Sarpanch of the locality, namely, Gajendra Patnaik (P.W.2) was informed about the occurrence and on going to the spot, he saw the injured P.W. 1, took steps for taking him to the police station and he lodged the first information report (Ext. 2). On its basis, investigation was taken up and a charge sheet was placed. On commitment, the two appellants and the co-accused stood trial in the Court of Session. The prosecution had examined ten witnesses to establish its case. The appellants bad pleaded not guilty to the charge and their case was that the appellant Jogi had been assaulted at the hands of P.W. 1 and they were innocent and has not assaulted P.W. 1. They had not examined any witness on their behalf.

(3.) On a consideration of the prosecution evidence, the learned Additional Sessions Judge found that no case had been made out against the co-accused Sibalal. The learned Judge held that the prosecution had failed to show that P.W.1 was a public servant and was discharging his duties as such when he was assaulted. It was accordingly held that section 333 of the Code had no, application to the facts of the case. Accepting the prosecution case that the appellant Jogi had voluntarily caused grievous hurt to P.W. 1 and that the other appellant had voluntarily caused hurt to the same person, the order of conviction was recorded as stated above.