STATE OF ORISSA Vs. BAIDHAR NAIK

JUDGEMENT

(1.) IN this appeal, the State assails the order passed by the Assistant Sessions Judge -cum -C.J.M., Balasore in S.T. No.18/51 of 1986 wherein he acquitted the accused -Respondent of the offence under Section 436 of I.P.C.

(2.) AS per the case of prosecution the accused -Respondent raised a thatched house over a Gochar land bearing plot No.374 appertaining to khata No.175 of village Jamudihi for which L.E. case No.130/3 of 1984 -85 was initiated against him in the Court of the Tahasildar, Nilagiri. As he did not vacate the house despite official order, the Tahasildar, Sarat Kumar Satpathy (P.W.11) along with Sisir Kumar Mohapatra, R.I. of Mitrapur Circle, (P.W.2), the Collection Moharir Gajendra Ojha, (P.W.9) Collection peon Surendra Dalai, Tahasil Amin Laxman Kumar Jena and the Dealing Assistant -in -Charge of Encroachment Section Sri Chintamani Rout (P.W.9) proceeded to village Jamudihi in the jeep of the Tahasildar on 4.6.1985 to evict him in accordance with law. They arrived near the house of the Respondent at abut 12.00 noon and found the wife of the accused -Respondent sitting in front of the thatched house. On being asked about the accused -Respondent, she told that he had gone out to work as a daily labourer. She was requested to call her husband to the spot, but she turned a deaf ear. Then on the direction of the Tahasildar, the R.I. instructed 5 Nos. of labourers to remove the dry fence raised around the thatched house. When they commenced the work, the wife of the accused -Respondent started removing the house -hold articles from the house. On completion of removal of the house hold articles accused -Respondent, who was there in the house from the very beginning emerged out, set fire on the house and fled away saying SALA MO GHARE NIAN LAGAI DELE. Sometime thereafter the said accused along with the other co -accused persons numbering 17 forming an unlawful assembly in prosecution of their common object rushed to the spot and manhandled the R.I. When he was going to the Police Station in the office jeep, they obstructed the movement, abused him in obscene language and one of the co -accused, Chitaranjan Das by name assaulted him with a Chappal. In order to avoid further assault he jumped over the fence of the house of one Pratap Biswal and entered inside the house. The accused persons also assaulted the other occupants of the jeep. Then the R.I. was rescued by the police personnel of Nilagiri Police Station. On these allegations the R.I. lodged a written report before the O.I.C. of Nilagiri Police Station, who registered the case and took up investigation and after completion of investigation submitted Charge Sheet against the accused persons. All the accused persons were tried for the offence under Sections 332/323/294 read with Section 149 of I.P.C. and the accused -Respondent was further tried for the offence under Section 436 I.P.C., in S.T. Case No.18/51 of 1986 before the Assistant Sessions Judge -cum -C.J.M., Balasore.

(3.) LEARNED Standing counsel submitted that the trial Court erred in acquitting the accused -Respondent of the charge under Section 436 of I.P.C. on the basis of some minor contradictions in the evidence of the witnesses which are bound to occur. As per his submission there are ample materials on record to show that the accused -Respondent set his house on fire. Per contra learned counsel appearing for the accused -Respondent submitted that the evidence of the witnesses differs from one another with regard to the manner in which the accused -Respondent was said to have set fire on the thatched house. One set of witnesses deposed that he came out of his house with a pot of kerosene, spread the kerosene over the thatch and then set fire on the same, while the evidence of other set of witnesses is silent with regard to spreading of kerosene over the thatch. Again, while some of the witnesses said to have seen the accused -Respondent coming from his house with a burning stick others deposed that he lit the stick outside. One of the witnesses has stated that the accused -Respondent came to the spot before the house was burnt. It is borne out from the evidence on record that the wife of the accused -Respondent stated that her husband had been to work as a daily labourer and was not present in the house to the query made by the R.I. about his whereabouts. When one of the prosecution witnesses deposed that the accused -Respondent arrived at the spot after the thatch of the house caught fire and the said witness was not declared hostile, it is but natural for the trial Court to seriously doubt the authenticity of the prosecution case. Added to it the evidence of witnesses differ from one another on material particular as discussed above.