ABHAYA JENA Vs. THE STATE

JUDGEMENT

(1.) PETITIONER has been convicted under Section 323, Indian Penal Code and sentenced to pay a fine of Rs. 400/ - and in default of payment thereof to undergo rigorous imprisonment for a period of one month.

(2.) PROSECUTION case is that in the morning of 29th April 1973 p.w. 4 was going home with some mangoes plucked from a mango tree standing in his bari at Pithapur in Cuttack Town. The Petitioner, who is a cousin of p.w. 4, along with three other persons (who have since been discharged) challenged him saying that the mango tree belonged to them. While p.w. 4 protested, the Petitioner dealt two lathi blows on his head. I Thereafter, p.w. 4 was removed to S.C.B. Medical College. Hospital. P.w. 3 who is brother of p.w. 4 lodged information at Lalbag police station.

(3.) P . ws. 3 and 6, as has been stated above, are not well disposed towards the Petitioner. So, their evidence is to be scrutinised carefully in order to find out whether they are truthful witnesses. P.w. 5 is a man of the locality who, admittedly sometimes works as a labourer under p.w. 4. It is stated that p. ws. 3, 5 and 6 are eye witnesses to the occurrence. In the charge -sheet the names of p. ws. 5 and 6 are not mentioned. P. ws. 1 and 2 are, admittedly, persons of the locality and their names appear in the charge sheet. When p. ws. 1 and 2 were examined by the prosecution, their evidence was against the prosecution story. They were declared hostile by the prosecution and were cross examined. Questions were put to them about their statement before the investigating officer. But the investigating officer was not asked anything about those questions. In view of this position their evidence cannot be brushed aside lightly. There is nothing in law as to declaring a witness hostile. It is open to the party to cross examine the witnesses cited by that party under the provisions of the Evidence Act. These two r witnesses were cross examined and nothing has been brought out in evidence so as to discredit the testimony of these witnesses. Prosecution only confronted them with some statements said to have been made before the police by these two witnesses, but no question has been put to the investigating officer about the statement of these two witnesses. It is contended on behalf of the prosecution that as the case diary was not available, the investigating officer was not in a position to say anything. When the case diary was not available, the Court had to rely on the statement of witnesses made in Court. Accordingly, the statement of these two witnesses is to be taken into consideration as made in Court. These two witnesses, as I have stated above, have not supported the prosecution story though their names appear in the charge -sheet.