STATE OF ORISSA Vs. RAMACHANDRA SAHU

JUDGEMENT

(1.) THIS appeal has been preferred under Section 378(1) and (3) of Cr.P.C. against the judgment and order dated 31.10.1987 passed by the learned Chief Judicial Magistrate -cum - Asst. Sessions Judge, Berhampur in S.C. No.9 of 1987 acquitting the accused -respondent of the offence under Sections 307/294 of I.P.C.

(2.) SHORN of unnecessary details the case of the prosecution is that on 20.1.1987 at about 8.30 P.M. while P.W.10, the S.I. of Town P.S. Berhampur was on traffic duty at Gate Bazar crossing, at that time the accused -respondent along with another came in a Luna from Berhampur City Hospital side and moved towards M.K.C.G. Medical College keeping to the right in violation of the traffic rules. P.W.5, a traffic constable in duty signalled the driver of the Luna to stop, but he defied the signal and tried to speed away. So P.W.10 immediately rushed forward, stood in front of the Luna and demanded the relevant documents in connection with the vehicle from the driver. But he refused to show any document and abused him in filthy language. When P.W.10 challenged it and caught hold of his hands to take him to the Police Station he snatched away his hands and pressed his neck for which his respiration was choked. In the meantime P.Ws 5 and 6, two traffic constables and P.W.7, Havildar of Bhapur out -post all of whom were performing duty nearby, came running to the spot and separated P.W.10 from the clutches of accused -respondent. In the same night P.W.10 lodged a written report before the Inspector in -charge of Berhampur Town Police Station (P.W.8) who registered the case and directed P.W.11, the S.I. to take up investigation. In course of investigation the accused -respondent was arrested and forwarded to Court, P.W.10 was sent for medical examination, witnesses to the incident were examined and after completion of investigation charge sheet was submitted under Sections 307/294/332 of I.P.C. However, the accused -respondent was charged for the offence under Sections 307/294 I.P.C. only and faced trial thereunder.

(3.) LEARNED Addl. Standing counsel submits that it is borne out from the evidence of P.W.4, the doctor, that on 20.1.1987 he examined P.W.10 and found two abrasions of size 3/4" in length on his neck. On 2.2.1987 he received requisition from the I.O. to opine whether those two injuries could be possible by finger nail to which he opined in affirmative. The learned trial Court disbelieved the evidence of P.W.10 that those injuries were caused by accused -respondent as there was delay in seeking the opinion of the doctor as to the possibility of those Injuries being caused by human nail, which is quite erroneous. He further submits that another ground for which the trial Court acquitted the accused -respondent was that P.Ws. 5 to 9 are all police personnel and that they were interested to see that the case was ended in conviction. Admittedly P.Ws.5 and 6 are two traffic constables. P.W.7 is a Havildar and P.W.9 is a constable of Bhapur Out -post and P.Ws. 8 and 11 are I.Os. Only because they are police personnel their evidence cannot be brushed aside altogether. The trial Court ought to have carefully scrutinized their evidence before discarding the same. It is further submitted by the learned Addl. Standing Counsel that the accused -respondent was attempting to kill P.W. 10 by constricting his neck, but due to his good luck and because of intervention of P.Ws. 5 to 7 he could be escaped. So he ought to have been convicted for the offence under Section 307 of I.P.C. There is also material in the record to convict the accused -respondent for the offence under Section 294 of I.P.C.