DURYODHAN DAS Vs. STATE

JUDGEMENT

(1.) THIS petition in revision is preferred against an appellate order of the Additional Sessions Judge, Cuttack upholding the conviction and sentence passed on the petitioner under Section 183, Penal Code. One Jema Bewa obtained a decree in the Court of the Munaif, Kendrapara against certain persons. The decree contained a direction inter alia that the defendants should remove a certain portion of the thatch of the adjoining school building which had encroached on the plaintiff's land and in default thereof the plaintiff was given the liberty to get the encroachment removed through Court. The encroachment having not been removed by the defendants a writ was issued by the Court to Nazir (P.W. 1) directing him to remove the encroachment and to give delivery of possession to the plaintiff. This writ was signed by the Munaif on 23 -3 -63. 0n that very date, the learned Munaif issued a commission to the civil Court Commissioner (P.W. 2) to demarcate the suit land for delivery of possession and to submit his report by 1 -4 -63. In pursuance of the writ issued to the Nazir the latter along with the civil Court commissioner (P.W. 2) and the. process -server (P.W. 3) went to the disputed land at about 9 A.M. on 18 -4 -63. The commissioner made the necessary measurement and ear -marked the portion of thatch to be demolished and it is alleged that while the Nazir was about to give delivery of possession, the two petitioners along with five others offered resistance to the delivery of possession, threatened the civil Court staff and caused physical injury to the decree holder and her daughter, Supa Dei (P.W. 4). The Nazir could not therefore effect delivery of possession of the property to the decree -holder and returned the writ (Ex.1) to the Court with his report (Ext. 1/a). The civil Court commissioner also submitted a report (Ex. 4) to the Court to that effect. On these allegations the Munsif, Kendrapara complained against the petitioners and 5 others under Section 183, Penal Code, the learned Sub -divisional Magistrate found all the seven persons guilty under Section 183, Penal Code, and convicted and sentenced each of them to pay a fine of Rs. 100 and in default to suffer R. I. for one month. On appeal the learned Additional Sessions Judge, Cuttack found that there was no satisfactory evidence against the five others that they had taken active part in offering resistance to the civil Court staff and acquitted them, but held that the two petitioners herein offered resistance to the civil Court staff. He therefore upheld the conviction of the two petitioners and the sentences passed on them.

(2.) AT the outset it is argued by the learned Advocate for the petitioners that the evidence of D. Ws. 1 and 2 who originally were cited as prosecution witnesses in the complaint petition should have been preferred to the evidence given by the prosecution witnesses examined in this case. The very same contention was put forward before the trial and appellate Courts and was duly considered by both the Courts and they have given cogent reasons for preferring the evidence of the prosecution witnesses. In fact D. W. 1 who acted as a drummer at the time of giving delivery of possession said that as soon as there was beat of drum the petitioner No. 1 Duryodhan Das came before the Nazir and stated that he did not know anything about the case and would enquire about it. D. W. 1 says that he left the place immediately thereafter. He is therefore not a competent witness to say what transpired at the spot thereafter. D. W. 2 has admitted the presence of all the accused persons including the two petitioners at the spot by the time he arrived there, and according to him it is only the petitioner No. 1 who spoke to the Nazir. The Nazir has deposed that some persons including the two petitioners gathered at the spot. He disclosed his identity and showed the writ of delivery of possession to them. But despite that the petitioners offered resistance. It is clear from the evidence of P.Ws. 1 to 5 that it is the petitioner No. 1 who gathered everybody and encouraged the persons there to resist the delivery of possession and P.Ws. 1 and 4 had specifically named the petitioner No. 2 Kulamani as the person who snatched the sickle from the hands of Supa Dei (P.W. 4) and assaulted her with it. I therefore find that there is sufficient and satisfactory evidence to show that these two petitioners offered resistance to the Civil Court Nazir.

(3.) IN the result. I am satisfied that both the petitioners have been rightly convicted. Having regard, however, to the circumstances of the case, I feel that a fine of Rs. 50/ - in each case would be sufficient to meet the ends of justice, I would, therefore, while maintaining the conviction of the two petitioners reduce the fine imposed on each of them to Rs. 50/, in default of payment of which each of them would suffer R. I. for 15 days. Subject to the reduction in the sentence the revision petition is dismissed. Petition dismissed.