ARJUN PRUSTY Vs. KAILASH CH BARIK

JUDGEMENT

(1.) IN this appeal under Section 378(4) of the Criminal Procedure Code, 1973 the appellant (complainant) assails the order dated 14.8.1989 passed by the learned J.M.F.C, Khurda in I.C.C. Case No. 165 of 1987/T.R.Case No. 350 of 1987 acquitting all the respondents/accused persons of the charges under Sections 323/379 read with Section 34 of the I.P.C.

(2.) THE appellant filed a complaint before the S.D.J.M., Khurda on 15.10.1987 alleging therein that on 14.10.1987 at 6 P.M. these respondents in furtherance of their common intention, entered into the God own house of the appellant situated at Bhusandapur Bazar and committed theft of two bundles of Napkins and 14 numbers of Sarees and Dhotis. On protest by the appellant, the respondents assaulted him by dealing pushes to his chest. The appellant as complainant in order to substantiate the charges examined 4 witnesses including himself and his son and the respondents examined one D.W. in their turn.

(3.) ON scrutiny of the evidence on record adduced by the appellant I find that the appellant has examined himself as P.W.1 and he has examined his son as P.W.4. P.Ws. 2 and 3 are said to be the two independent witnesses. P.W.2 though in the examination in chief has deposed to have seen the occurrence, in the cross examination, he has clearly stated that he has not seen the occurrence and he reached the spot half an hour after the incident. He has denied to have seen the removal of the clothes, as alleged, and also stated that he has no knowledge about the assault by anyone to the appellant. The other witness P.W.3 though has stated that he suo motu came to the spot and saw respondents Kailash and Ladu were holding one bundle of Napkin each on their heads and respondents Chakra and Makara were holding 7 to 8 pieces of Dhotis and Sarees each and has further stated to have seen the back side godown was broken, in the cross -examination he has admitted that he is a witness (or the complainant in another I.C.C. Case No. 91 of 1987 which this appellant (complainant) filed against these respondents. In cross -examination he has further stated that though there are 100 houses in the said sahi he has no knowledge as to if any of the sahi people had come and was present at the spot.