FAKIR CHARAN SETHI Vs. BRUNDABAN SAHU

JUDGEMENT

(1.) This appeal under Section 378(4) of the Criminal Procedure Code, 1973 is filed by the appellant (complainant) against the judgment dated 5.9.1988 passed by the J.M.F.C. (Rural), Cuttack in I.C.C. Case No.69 of 1986/T.R. No.502 of 1986 wherein learned Magistrate acquitted all the Respondents/Accused persons, who faced trial under Section 427 of the I.P.C.

(2.) The fact of the case of the appellant is that on 27.4.1986 at about 2 P.M. all the Respondents along with 20 unknown persons being armed with deadly weapons entered into the bari of the appellant situated in the village Bamburi under Plot No.2376 measuring 8 decimals and the Respondents cut down the western side old fence. On protest by the appellant the Respondents Kanchan Behera, Brundaban Sahu and Gauranga Ch. Patnaik abused him using obscene words. Thereafter, the Respondents Kanchan Behera, Punanda Behera, Nata Bhoi and Hari Bhoi damaged two brick walled thatched rooms of the appellant causing damage to the tune of Rs.12,000/- and they took away paddy and rice from his house. The witnesses present, protested the action of the Respondents, but the Respondents did not listen to them and assaulted the appellant and threatened him with dire consequences. The complainant along with his father lodged the F.I.R. at the police station, but the police advised them to file the case in the Court and as such, the complaint case was filed on 30.4.1986, cognizance of the offence under Section 427 of the I.P.C. was taken by the learned S.D.J.M. (Rural), Cuttack and the Respondents were tried by the learned J.M.F.C. (Rural), Cuttack.

(3.) Learned counsel for the appellant took me through the evidence of the appellant, who examined himself as P.W.3, his father, who was examined as P.W.1, and another witness P.W.2, and argued that when three witnesses corroborated each other on the factual aspect of the case and participation of the Respondents therein, the learned Magistrate should have believed them and convicted the respondents. He also submitted that the appellant filed a petition before the learned Magistrate to adduce additional evidence by way of introducing some documents to show his possession over the disputed land and also filed one petition for examination of witnesses under Section 311 of the Criminal Procedure Code, but the learned Magistrate rejected the said petition on 29.8.1988 and posted the case to 30.8.1988 for argument and had the learned Magistrate allowed the evidence to be brought on record, he could have successfully proved the case.