STATE OF ORISSA Vs. DHANESWAR BADHEI AND ANR.

JUDGEMENT

(1.) THIS is an appeal by the State against the order of the Sub -Divisional Magistrate, Sambalpur acquitting the two Respondents of a charge under Section 430, Indian Penal Code.

(2.) PROSECUTION case in brief is as follows: In mouza Gambharikata there is a tank called Debaki Bandh situated in plot No. 2335 with plot No. 588 as embankment belonging to the Government. It is alleged that on 25 -10 -1972 both the Respondents cut the northern ridge of the tank and dug a nullah to their field and drained out the water. The villagers filed a petition (Ext. 1) before the Tahasildar on 26 -10 -1972 which was sent to the Revenue Inspector (P.W. 8) for enquiry and report. P.W. 8 submitted two reports dated 27 -10 -1972 and 28 -10 -1972 in a piece of paper marked Ext. 2. The Tahasildar sent the petition (Ext. 1) and the report (Ext. G) along with a forwarding letter dated 14 -11 -1972 to the police for necessary action. The Officer -in -charge of the police station registered a case and after completion of investigation, submitted charge -sheet against the accused, Respondents for having committed an offence under Section 430, Indian Penal Code.

(3.) TO prove the case, prosecution has examined eight witnesses and the defence has examined one witness. P.Ws. 1 to 7 are cultivators of the village. P.W. 8 is the R.I., who, at the instance of the Tahasildar, enquired into the matter and submitted his report, Ext. 2. Several documents were also proved on behalf of both the sides. The learned Magistrate after considering the evidence by his judgment dated 23 -12 -1975 acquitted the accused -Respondents as the prosecution has failed to substantiate the charge against the Respondents. Hence the appeal by the State.