STATE OF ORISSA Vs. GOVINDARAM RATHORE

JUDGEMENT

(1.) This appeal is against the order of acquittal passed by the learned Judicial Magistrate First Class, Cuttack acquitting the accused -respondent from the charge under Section 353 I.P.C. in G.R. Case No. 3327 of 1983/ Trial Case No. 256 of 1984.

(2.) THE prosecution case in brief is that a non -bailable warrant of arrest was issued against the accused in G.R. Case No. 1568 of 1970 by the learned Judicial Magistrate First Class, Cuttack, but the accused was avoiding police arrest since long. On 29.12.1983 at about 3.00 a.m., the informant S.I. of Police of Mangalabag Police Station alongwith Head Constable and two other constables of the said Police Station went to the house of the accused for executing the non -bailable warrant of arrest issued against him. On being called, the accused came out of the house and challenged the authority of the informant to call him in the night. After explaining the contents of the non -bailable warrant when the informant, S.I. of Police, asked the Head Constable to arrest the accused, the accused suddenly got angry, tussled with them and assaulted the S.I. and the Head Constable with slaps and fist blows. The Head Constable with the help of the passers -by and other constables caught hold of the accused. The accused was arrested and brought to the Police Station. On completion of investigation, charge sheet was filed. - -

(3.) IT appears from the evidence of P.W.1, the S.I. of Mangalabag P.S. who had gone along with the Head Constable P.W.2 and other constables P.Ws.3 and 4 to execute the non -bailable warrant of arrest against the accused that when he knocked at the door of the accused at 3 a.m. of 29th December, 1983, the accused came out but when he was told about the N.B.W., he pushed him and gave him a slap and fist blows. He sought for help and when P.Ws. 2, 3 and 4 came, they were also assaulted by the accused. They caught hold of the accused and brought him to the police station. P.W.1 has admitted in his cross -examination that after the assault, the witnesses came to the spot. P.W.2, the Head Constable, has stated that on the occurrence night, he was on the back side of the house of the accused and hearing the noise and conversation between P.W. 1 and the accused, he came to the spot. According to P.W.2 one Babuji Behera and Dwari Patra (P.W.5) came to the spot and they belonged to the same Sahi. P.W.3, a constable, in his evidence stated that on hearing hullah, he and the other P.Ws. came to the front side and rescued P.W. 1. According to him, P.W.2 was on the front side of the house whereas P.W.2 in his cross -examination has stated that he was at the backside of the house when P.W. 1 knocked at the door. P.W.4, another constable, in his evidence stated that the accused assaulted the Sub -Inspector and Harihar Bastia and he along with the other P.Ws. caught hold of the accused and brought him to the police station. The evidence of P.Ws. 2 and 3 is contradictory to each other and if the evidence of P.W.2 is accepted, the evidence of P.W.3 would be falsified. According to P.W.3 he came to the spot when the accused was on the road but the evidence of P.Ws.1 and 2 does not speak about any tussle with the accused. P.W.5 is an independent witness but he has pleaded ignorance about the occurrence and did not support the prosecution story. Interestingly, he has not been declared hostile nor has he been cross -examined by the prosecution. However, the F.I.R. story was that when the informant -P.W. 1 after explaining the accused showing the warrant of arrest asked the Head Constable to take him to custody, he made a tussle with him and other three police personnel with an intention to evade arrest and in course of tussle he assaulted him (P.W.1) and the Head Constable with slaps and blows.