LAXMIDHAR SWAIN AND ORS. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THESE four Petitioners have assailed their conviction under Section 323, Indian Penal Code, by the learned Sessions Judge in this revision, Originally, there were six accused persons who stood charged and were tried for having committed the offences under Sections 143, 147, 148, 323, 149 and 325, Indian Penal Code. The learned trying Magistrate acquitted two of the accused persons of all the charges, convicted accused laxmidhar under Section 325, Indian Penal Code and convicted all the four Petitioners including Laxmidhar under Section 23, Indian Penal Code. These four Petitioners were acquitted of the remaining charges. On appeal, the learned Sessions Judge acquitted accused Laxmidhar of the charge under Section 325, Indian Penal Code, but maintained the conviction of all the accused Petitioners under Section 323, Indian Penal Code and sentenced them to pay a fine of Rs. 300/ - in default, to undergo rigorous imprisonment for one month. The conviction of these Petitioners for the offence under Section 323, Indian Penal Code, is based upon the oral testimony of P.Ws. 1 to 4 who are the injured persons and also the medical evidence:

(2.) MR . Nayak, the learned Counsel for the Petitioners assails the order of the learned Sessions Judge on the ground that there is no specific finding as to who assaulted whom and in the context the charge under Section 323/149, Indian Penal code, having failed and there being no individual charge under Section 323, Indian Penal Code, the accused persons have been greatly prejudiced and, therefore, the conviction under Section 323, Indian Penal Code, cannot be sustained. I am not in a position to accept the submission of the learned Counsel for the Petitioners. A reading of the judgment of the learned trying magistrate as well as that of the learned Sessions Judge would reveal that P.Ws. 1 to 4 in their evidence have implicated these Petitioners of having assaulted them. The evidence of said P.Ws. 1 to 4 has already been believed by the learned trying Magistrate as well as the learned Sessions Judge. In that view of the matter no prejudice can be said to have been caused to the Petitioners for absence of a charge under Section 323 and further more even if they are acquitted of the charge under Section 323/149, they can be convicted under Section 323, Indian Penal Code. Since the assaults given by the Petitioners to P.Ws. 1 to 4 have been believed the conviction under Section 323, Indian Penal Code, cannot be said to be illegal. I am, therefore, inclined to uphold the conviction of the Petitioners.