TRINATH KONHARA AND 3 ORS. Vs. STATE

JUDGEMENT

(1.) ON 10 -11 -1964, p.w. 1 Sabi Beherani lodged F.I.R. at the Kodala P.S. alleging that while she was returning with a headload of fuel from the jungle Petitioners Nos. 1 and 2 suddenly came and pulled down the fuel bundle from her head, that Petitioner No. 3 Soura Bisoi snatched her cloth as a result of which she became naked and that all the accused persons thereafter took her into a ditch and assaulted her by giving slaps and fist blows. She further alleged that with her own knife Petitioner No. 4 Bhaigo Bisoi cut and removed her necklace and took away the same. At this time some bhadralogs gathered at the spot and the Petitioners ran away. After investigation the police submitted charge sheet against the Petitioners under Sections 354/341/379, Indian Penal Code and the Court framed charges against all the Petitioners and added a charge under Section 34, Indian Penal Code to each of the sections aforesaid. Petitioners pleaded not guilty. The learned Magistrate rejected the prosecution case and acquitted the Petitioners of the charges under Sections 341, 379 read with Section 34, Indian Penal Code. He, however, convicted all of them of the charge under Sections 354, Indian Penal Code and sentenced each of them to pay a fine of Rs. 200/ -, in default, to undergo R.I. for 45 days. He also found the Petitioner Bhaigo Bisoi guilty under Section 325, Indian Penal Code and convicted him and sentenced him to undergo R.I. for 2 months. The appeal preferred by the Petitioners was dismissed by the Additional Sessions Judge, Berhampur.

(2.) SRI R.C. Misra appearing for the Petitioners contended before me that the eye witness p.w. deposed that it is the Petitioner No. 3 Soura Bisoi who dragged the cloth as a result of which Sabi Beherani, p.w. 1 became naked and that even if his evidence is believed it is Soura alone who will be guilty of the offence under Sections 354, Indian Penal Code and that therefore the conviction under Sections 354, Indian Penal Code of the other 3 Petitioners cannot be sustained. He next contended that there being no mention in the F.I.R. about the Petitioner Bhaigo Bisoi giving a blow with a knife on the cheek of p.w.1 resulting in breaking of her tooth, the Courts below ought to have rejected the evidence of p.w. 1 & 8 on this point as an embellished version not worthy of any credit. So far as the second point is concerned there appears to be some force in the contention. Of the four injuries which the doctor p.w. 10 found on the person of p.w. 1 Sabi Beherani when he examined her on the very day of the occurrence, injury No. 4 alone was grievous in nature. The doctor found that the second left upper molar was dislocated, and there was contusion over the site of the tooth on the cheek and laceration at the corresponding inner surface of the cheek. p.w. 9 even went to the extent of saying that as a result of the kati blow given by Bhaigo on the cheek of Sabi bleeding injuries were caused. The F.I.R. contains a vivid and detailed description of the part played by each of the Petitioners when they attacked Sabi. But it is surprising that no mention at all was made about the blow alleged to have been given by Bhaigo Bisoi on Sabi's cheek nor is there any mention about the dislocation of the tooth. This glaring omission in the F.I.R. has not been noticed in the judgment of either of the Courts below. In the circumstances, there appears to be considerable force in the submission made by Sri Misra that if Bhaigo had really caused the injuries referred to above it would have clearly found mention in the F.I.R. Another circumstance which obviously escaped notice of the lower Courts is that in the charge sheet which was filed by the police no mention had been made that Bhaigo had caused the injury which resulted in the dislocation of Sabi's tooth. That is apparently the reason why Section 325, Indian Penal Code was neither mentioned in the charge -sheet nor was any charge under Sections 325 framed against any of the Petitioners by the Court. All the circumstances clearly indicate that such an allegation was made against Bahigo for the first time in Court by p.w. 1 and repeated by p.w. 9. In these circumstances, I must bold that so far as this part of the case is concerned Bhaigo is entitled to the benefit of doubt. I may incidentally mention that no charge under Section 325, Indian Penal Code had been framed against any of the Petitioners. One of the charges framed against them was only under Section 324, Indian Penal Code, That being so the conviction of Bhaigo under Section 325, Indian Penal Code was itself, bad in law. It is not the prosecution case that apart from the injury on the cheek resulting in dislocation of the tooth, Bhaigo had caused any other injury to Sabi Beherani with the kati. Hence Bhaigo cannot also be convicted of the charge under Section 324, Indian Penal Code. In the circumstances, the conviction of Bhaigo of the charge under Section 325, Indian penal Code and the sentence of 2 months R.I. must be set aside.

(3.) IN the result, the conviction of Bhaigo Biagi Petitioner No. 4 under Section 35, Indian Penal Code and the sentence of 2 months R.I. imposed on him are set aside. The conviction of the Petitioners under Section 354, Indian Penal Code and the sentence of fine imposed on them are maintained. This revision petition is partly allowed.