GOURANGA NAYAK Vs. GOURANGA BEHURA AND ORS.

JUDGEMENT

(1.) OPPOSITE parties 1 to 4 having been acquitted of the charges under Sections 341/323/325 read with 34 I.P.C. by the impugned Judgment dated 26.2.1996 passed in G.R. No. 920 of 1987 (Trial Case No. 464 of 1990) by the learned J.M.F.C, Kendrapara, the Petitioner -informant has filed this revision.

(2.) PROSECUTION case is that the occurrence took place in the background of existence of previous land dispute between the family members of the informant and accused persons. The proximate cause of the occurrence is alleged to be cutting and removal of paddy from the land of the informant by the accused persons on 21.12.1987 for which a case is stated to have been instituted in Court against the accused persons. The alleged occurrence took place on 22.12.1987 when the informant -P.W.2 and his brother P.W.3 were returning home from their land. It is alleged that the opposite party 4 - accused Debendra assaulted P.W.2 by means of a lathi on his right hand as a result of which he fell down. Thereafter, opposite parties 1, 2 and 3 as well as one Rabinarayan Behura assaulted P.W.3 by means of lathis as a result of which he sustained injuries. P.Ws.6 and three other co -villagers rescued and brought P.Ws.2 and 3 to the police station. On the basis of F.I.R. Ext.1 lodged by P.W.2 and 3 to the police station. On the basis of F.I.R. Ext.1 lodged by P.W.2, the case was registered and investigation was taken up. On completion of investigation, charge -sheet was submitted against the opposite parties 1 to 4. Defence plea was one of complete denial. In order to substantive the allegations prosecution examined 11 witnesses in all. P.W.2 -informant and his brother P.W.3 are injured persons. P.Ws. 1, 4, 6 and 7 were examined as occurrence witnesses. P.W.5 was examined as seizure witness. P.Ws. 8 and 11 are doctors who were associated medical examination and treatment of the injured persons. P.Ws.9 and 10 were the investigating police officers. Only one witness D.W.1 was examined on behalf of the defence. That apart, documents marked Exts.1 to 7 were relied upon by the prosecution and Exts. A to D were relied upon on behalf of the defence.

(3.) IN the present case, proximate cause which constituted motive for commission of the alleged offences was initially stated in the F.I.R. to be cutting and removal of paddy from the land of the informant on 21.12.1987. It was asserted that as the case was initiated against the accused persons on 21.12.1987, the accused persons committed the alleged offences on 22.12.1987. While deposing in Court, P.W.2 contradicted his earlier version in the F.I.R. by admitting in his cross -examination that on 21.12.1987 paddy was harvested from his land by P.W.3 with the assistance of his labourer P.W.1. The paddy was kept in the field till 22.12.1987 when he along with P.W.3 removed paddy from the case land. P.W.3, on the other hand, stated in his cross -examination that paddy sheaves were lying in the case land since 5 to 7 days prior to the date of occurrence for the purpose of drying. In such circumstances, there appears no infirmity in the observation of the learned Court below that the prosecution has come up with a tainted version of the proximate cause of the alleged occurrence. Existence of inimical relationship between the parties is not disputed. P.W.2 deposed that the alleged occurrence took place near the house of P.W.1 Sukadeb Das. However, according to P.W.3, occurrence took place near the house of one Sukadev Sahu. In the F.I.R. also the place of occurrence was stated to be near the house of P.W.1. However, P.W.1 himself did not state that the occurrence took place near his house and according to him the occurrence took place near his land. It is pertinent to keep in mind that it is the prosecution case that P.W.1 "was employed as a labourer by informant and his brother for harvesting paddy. P.W.4 deposed that the occurrence took place in front of his house whereas P.Ws.6 and 7 deposed that the occurrence took place on a 'gochar' land. Apart from above referred discrepancies in the evidence regarding spot of occurrence, it is also found that out of the occurrence witnesses P.Ws.1, 4, 6 and 7, only P.W.6 was named in the F.I.R. to have witnessed the occurrence though as many as three other persons apart from P.W.6 were named to have witnessed the occurrence as well as rescued the injured persons from the spot. P.W.2 deposed that accused Debendra assaulted him by means of a bahungi (lathi) on his right hand causing bleeding injury on his elbow. When he raised hullah P.W.3 arrived upon which accused persons Debendra and assaulted P.W.3 by bahungis on his head, hands and legs causing bleeding and swelling injuries. In his cross -examination, P.W.2 admitted regarding institution of counter case arising out of the same occurrence, but expressed his ignorance regarding the cause of injuries sustained by accused persons Debendra and Prasant. Injury reports of accused persons Debendra and Prasant were admitted to evidence under Exts. A and B respectively. Though in his examination in chief as well as in the F.I.R. P.W.2 did not state that the occurrence took place when they were removing paddy from the land, it has been brought out in his cross -examination that they started removing paddy since morning of 22.12.1987. He also deposed that when accused Debendra assaulted him, he fell down and became unconscious. He regained his sense in his house. P.W.3 deposed in his examination in chief itself that the occurrence took place when accused persons Debendra and Prasant asked him to bring down paddy sheaves which he was carrying on his head. Accused Debendra pushed him from behind and accused Prasant dealt a bahungi blow on his left hand causing bleeding injury and fracture. He also deposed that one Rabindra assaulted him on his left leg by means of a bahungi and thereafter accused Debendra also assaulted him with bahungi on his right side knee upon which he became unconscious. Thus P.W.3 did not whisper a word regarding any assault on P.W.2. Rather, it has been brought out in his evidence that he had not seen any assault on P.W.2. P.W.1 deposed that accused Debendra assaulted P.W.2 on his left shoulder and contradicts P.W.2 himself. P.W.4 deposed one Babaji Behera also to have assaulted P.W.2 which is not the case of the prosecution. In cross -examination of P.W.4 it has been elicited that on hearing hullah he came to the spot and found that the injured persons were lying unconscious. P.W.6 in his examination in chief deposed that hearing hullah he came to the spot and found P.W.2 lying unconscious. However, he stated about assault by the accused persons on the head of one Satyabrata which also is not the case of the prosecution. P.W.7 admitted in his cross -examination that accused Prasant filed a case against him before the Consolidation Authority. No doubt the medical evidence available from the doctors P.Ws. 8 and 11 revealed that P.Ws. 2 and 3 sustained injuries on their persons. However, learned trial Court upon threadbare analysis of evidence of the injured persons and other occurrence witnesses found their evidence, being discrepant contradictory and inconsistent, not capable of being accepted for the purpose of recording any finding in a criminal trial. Upon scrutiny of evidence on record, there appears no infirmity or unreasonableness in such finding so as to warrant interference. In addition, institution of counter case against the members of the informant party and absence of any explanation with regard to the injuries sustained by the accused persons make the prosecution case suspect of suppression of origin and genesis of the alleged occurrence. In such circumstances, there appears no ground to exercise revisional power to disturb the findings recorded in the impugned Judgment and order.