GOPINATH DAS Vs. ALEKH SAHU

JUDGEMENT

(1.) THIS application in revision is directed against an order of the Magistrate, First class, Daspalla acquitting the opposite parties, thirteen in number, who were prosecuted on charges under Section 148/426 I. P. C. and five of whom, namely, denei Sahu, Mahajan Naik, Kirtan Padhan, Mohan Naik and Udaya-Sahu also under Sections 326/324/323, I. P. C. The case against them is that at about 6 A. M. on 28-3-1965 they formed themselves into an unlawful assembly and being armed with Katis, Tangias, Farsa and Lathis restrained Lingaraj Das while he was proceeding on a cycle and dealt blows on him thereby causing simple and grievous hurt on his person. The opposite parties pleaded not guilty. Their case is that there are two factions in the village for the last about 12 years, Lingaraj Das (injured)and Arakhit Barik are leaders of one faction while petitioners Alekh Sahu and danei Sahu are leaders of the other faction, and there was a number of cases between them. Sometime previous to the occurrence, Lingaraj Das was convicted under Section 307 I. P. C. for attempting to commit the murder of one Lokanath misra and in that case some of the members of the opposite party were witnesses for the prosecution. Since then, Lingaraj Das used to move on cycle with a Farea for his personal safety. In mouza Kurum Bankatara where the occurrence took place and to which place all the parties belong, Dutikeshwar Mahadeb of which one lokanath Misra was the Managing trustee owns some lands and opposite party No. 2 Mahajan Naik was cultivating some of the lands of the deity as a bhag tenant. After Lokanath Misra, Durga Madhab Deo became the trustee of the temple and lingaraj Das as an agent of Durga Madhab Deo was looking after the affairs of the deity. On the date preceding the occurrence, Lingaraj Das wanted to dislodge mahajan Naik from the land which he was cultivating. On the date of occurrence when Lingara. i Das was passing by the side of Mahajan's house on a cycle, the latter questioned his as to why he was attempting to dispossess him from the land. Lingaraj got down from his cycle and taking up the Tangia which he was holding wanted to assault Mahajan with it, Mahajan thereupon snatched away the tangia from Lingaraj and assaulted him with it till Lingaraj fell down on the ground. None of the other members of the opposite party was present by the time of the said occurrence. The essence of the defence therefore, is that while Mahajan admitted having caused some injuries on Lmgaraj but pleaded that he did so in exercise of his right of private defence, the other members of the opposite party denied having taken part in the occurrence.

(2.) LINGARAJ Das examined as P. W. 1 stated that on the date of occurrence when he was coming down from Kabelpur bridge on a cycle, opposite party Alekh Sahu suddenly came from the house of Mahajan and stood in front of his cycle and catching hold of the handle of his cycle asked him as to why he was creating trouble in the village. He therefore got down from the cycle. Immediately thereafter the other members of the opposite party who were variously armed with Katis and lathis gathered at the spot. Danei Sahu attempted to give a blow on his neck with a Kati. He tried to ward off the blow by his left hand and the Kati blow fell on his wrist. He then fell down. Then Mahajan Naik attempted to give a blow with his. Kati on his neck and he again warded it off with his left hand and received an injury on the left upper arm. He then became unconscious and did not know who caused the several injuries on his person. The doctor examined as P. W. 2 who had examined Lingaraj Das found as many as eleven injuries on the person of Lingaraj. These consisted of bleeding incised injuries on the left wrist, left humerus and the left rib; lacerated injuries on the left elbow, left humerus, left tibia; and compound fractures of the left ulna, left tibia; and abrasions on the forehead and right arm. Some of the injuries were grievous in nature while the rest were simple. Five ether witnesses were examined on the prosecution side to prove the occurrence besides the investigating officer. The defence examined one witness to support the stand taken by Mahajan Naik and he stated inter alia that excepting Mahajan Naik, the other members of the opposite party were not present at the occurrence.

(3.) THE learned Magistrate considered the evidence on record, disbelieved the prosecution case regarding participation of the members of the opposite party excepting Mahajan Naik in the occurrence and acquitted them. He accepted the plea of Mahajan that he caused injuries on Lingaraj Das in exercise of his right of private defence and also ordered his acquittal,