Aquittal in 341, 324, 294, 353, 332, 379, 307,506 IPC
IN THE COURT OF THE 1ST ADDL. SESSIONS JUDGE- CUMSPECIALJUDGE (VIGILANCE) BHUBANESWAR.
Present :
Shri N.Sahu, LL.B.,
1st Addl. Sessions Judge,
Bhubaneswar.
Crl. Appeal No. 10/53 of 2012/2011.
(Arising out of the judgment,dt.18.11.2011 passed
in C.T.Case No.56/144/2010(A) by the learned
A.C.J.M.-cum-A.S.J.,Bhubaneswar ).
Prasan Swain, aged about 35 years,
Son of Bata @ Dhukudi Swain,
resident of Village-Pitapalli,
PS-Jatni, Dist.Khurda.
.… Appellant.
-Versus-
State of Odisha. .… Respondent.
For the Appellant :Sri C.S.Sethi & Associates.
For the Respondent :Sri S.K.Barik, Addl.P.P.
Date of argument : 30.10.2013.
Date of judgment :12.11.2013.
J U D G M E N T
1. This appeal has been preferred against the judgment,
dt.18.11.2011 passed by the learned A.C.J.M.-cum-A.S.J.,Bhubaneswar
in C.T.Case No.56/144/2010(A).
2. Briefly stated, the prosecution case is that on 11.11.2007 the
informant along with Forest Range staff,Khurda and A.P.R. Staff were
guiding the elephants to Chandaka Reserve Forest. At about 1 A.M.
hearing shouts, the informant went to the spot and found 25 to 30 people
being armed with deadly weapons, were assaulting Banabihari Das,
Forester and Godabarisha Hota, Forest Guard. While the informant was
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trying to pacify the matter, the present accused along with others
assaulted them and the A.P.R. Force captured the present accused and
two others. The informant noticed burn injuries in the hands of
Banabihari Das and Godabarisha Hota and saw that their uniform were
damaged. The culprits had snatched away the search light, walky talky
and gold finger ring from the forest guard. The injured forest officials
were taken to Khurda Hospital for treatment and the informant lodged
FIR basing on which investigation was taken up and after completion of
investigation, chargesheet u/s.341, 324, 294, 353, 332, 379, 307,506 IPC
was submitted against the present accused along with two others namely,
Sukadev Swain and Basudev Swain.
3. After commitment, during course of hearing, when the case was
posted for accused statement, this accused remained absent. So, his case
was splited up. The case against two other accused persons proceeded
and they were acquitted by the learned ASJ vide judgment, dt.2.11.2011.
After apprehension of this accused, his statement was recorded on
16.11.2011 and vide judgment, dt.18.11.2011 the learned ASJ found the
accused not guilty of the offences u/s.307, 324, 506, 294 read with
Section 34 IPC and acquitted him from those offences. But the learned
ASJ found this appellant guilty of the offences u/s.323, 332, 353, 379
IPC and convicted him thereunder and sentenced him to undergo R.I. for
three months on each count with direction that the sentences shall run
concurrently and the period of detention be set off. The said judgment is
under challenge in this appeal.
4. The learned counsel for the appellant has challenged the judgment
of conviction and sentence on the ground that it is illegal and against the
evidence on record. He further contended that there is no independent
corroboration to the testimony of official witnesses which are full of
material contradictions and there is no evidence against the present
appellant. The learned defence counsel further submitted that where
evidence against the convicted appellant stood on similar footing as was
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against two other co-accused persons acquitted by the trial Court, the
present appellant is entitled for acquittal. On the other hand, the learned
A.P.P supported the judgment of conviction passed by the lower Court.
5. PW-1 the APR Constable has stated that on 12.11.07 while he was
guarding the official jeep, he heard sound of assault on other staff such as
PWs-4,5 and 8. He admitted that he was not examined by the I.O. nor
stated these facts to the I.O. PW-1 has not stated anything implicating the
present accused. PW-2 the informant-Range Officer stated that he is
unable to identify the accused persons. He stated that he with Habildar
K.C.Dalabehera had been to the spot and the APR Force caught hold of 3
persons. In para-9 of his cross-examination he stated that when they
arrived at the spot, they found some people were assaulting to the forester
and forest guard, but he does not know them. PW-3 has stated only about
the seizure of uniform shirts under Exts.1 and 2.
6. PW-4 one of the injured stated that some villagers attacked them
with the flame which they had carried. But in para-7 of his crossexamination
he specifically stated that he cannot say the names, fathers'
names and the residential addresses or the profession of the accused
persons. He stated that the place of occurrence was a forest area and it
was dark by the time of occurrence. He also stated that he had not noticed
as to who assaulted whom. So also, he could not say as to who torn his
shirt nor he could say who assaulted him causing injuries on his hand. It
is pertinent to mention that in para-4 of his cross-examination he stated
that the accused Basudev Swain with others had assaulted him. He has
not specifically named the present appellant to be the assailant. He stated
that some villagers attacked them and forcibly took away his gold finger
ring, walky talky and damaged his uniform shirt.
7. PW-5 the APR Habildar stated that he does not know the accused
persons and he also does not know as to what happened to the forest
staff. He has not whispered anything if he with other APR staff and forest
staff had caught hold of this accused or any other accused. Even this
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witness was not declared hostile by the prosecution. His evidence no way
incriminates the present accused rather his evidence renders the
prosecution case doubtful. PW-6 stated that he does not know the present
accused and also does not know anything about the occurrence of this
case. He was declared hostile by the prosecution. But nothing substantial
was elicited in his cross-examination to incriminate the present appellant.
PW-7 stated that in the occurrence night he heard shouts of some people
using obscene words and when he arrived at the spot he found PWs-4 and
8 were assaulted by the villagers and they apprehended the accused
persons. In the cross-examination he stated that it was a dark night and he
cannot say as to who assaulted whom and he also stated that when he
arrived at the spot, the occurrence was already over. So, his evidence is
not helpful to the prosecution to incriminate this appellant.
8. PW-8 another injured stated that he with PW-4 and APR Habildar
were guarding against the entry of the elephants to the Village-Pitapalli.
4 to 5 villagers of Pitapalli rushed towards him and one out of those
persons using obscene words, was instructing the villagers to assault him.
Out of them, the present accused and one Dina Mangaraj rushed towards
him and this appellant gave a push by holding his neck and he fell down.
Accused Dina Mangaraj assaulted on his both arms by means of a stick
which was illuminated with fire. They snatched away his money purse
and search light. He stated that he had sustained burn injuries along with
other injuries. The APR Force and Range Officer apprehended those 3
persons. But neither the Range Officer(PW-2) nor the APR Habildar
(PW-5) nor APR Constable (PW-1) have stated so. PW-10 the I.O. stated
that he had not seized any stolen property from this appellant. If in fact,
this appellant and Dina Mangaraj had snatched away the money purse
and search light of PW-8, then naturally the same could have been seized
from this appellant as he was allegedly caught redhanded at the spot. But
no stolen property has been seized from this appellant. PW-8 has not
stated that Dina Mangaraj took away that money purse and search light.
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The I.O. stated that he had examined eight villagers of that village, but
all of them had not stated anything implicating the accused persons with
the alleged offences.
9. The I.O. has also admitted that at the time of occurrence about 30
to 40 villagers of Villages-Pitapalli, Gangapada and Bhatkudi were
present at the spot during the time of occurrence. But no independent
witness(villager) has been examined by the prosecution, even PW-1 and
PW-5 APR staff have not stated anything in support of the prosecution
case. PW-8 Bana Bihari Das stated that he had told the medical officer
that he was feeling pain, but the medical officer PW-9 has not stated so.
PW-8 stated that he had sustained burn injury along with other injuries,
but Injury Report Ext.6 shows that he had sustained only two burn
injuries, one on each hand. There is no mention in Ext.9 that PW-8 had
sustained any injury on his neck or other parts of the body which falsifies
the fact that this accused had caught of his neck and given fist blows. It is
significant to note that Dina Mangaraj was not even chargesheeted by
police. Out of 3 persons who were allegedly caught at the spot, two had
been acquitted by the lower Court.
10. The learned defence counsel placing reliance on a decision
reported in 2005(2) Acquittal 371, Patna High Court, Awadh Yadav-
Vrs.-State of Bihar submitted that where evidence against convicted
appellant stood on similar footing as was against other co-accused
acquitted by trial Court, appellate Court has to take the point into
consideration.
In the instant case, the learned lower Court has acquitted the
chargesheeted accused persons-Sukadev Swain and Basudev Swain, vide
judgment, dt.2.11.2011 in the original case. In the impugned judgment
the learned lower Court has also held that there is no evidence on record
that the present accused had shared his common intention with other
accused and in furtherance of such common intention he had assaulted
PWs-4 and 8.
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11. As discussed above, there is no independent corroboration to the
prosecution case. The evidence of P.Ws.4 and 8 on which the prosecution
solely bases its case is contradictory to each other on material parts and
the same is not clear and clinching. Even the other official witnesses
including the informant-Ranger, the APR Habildar and APR Constable
do not support the prosecution case. The evidence of P.W.8 which is full
of contradictions and which does not get corroboration from any corner
including the medical evidence, does not inspire confidence. On a
combined reading of the evidence on record and for the reasons discussed
above, the present accused cannot be held guilty of the offences
u/s.323,332,353,379 IPC. Hence, I am inclined to hold that the impugned
judgment of conviction and sentence passed by the learned lower Court is
not tenable in law. Hence, it is ordered.
O R D E R
The Criminal Appeal is allowed on contest and the impugned
judgment of conviction and sentence, dt.18.11.2011 passed by the
learned A.C.J.M.-cum-A.S.J., Bhubaneswar in C.T. Case
No.56/144/2010(A) is hereby set aside. The appellant be set at liberty.
1st Addl. Sessions Judge,
Bhubaneswar.
The judgment having been typed to my dictation and corrected by
me and being sealed and signed by me is pronounced in the open court
today this the 12th day of November, 2013.
1st Addl. Sessions Judge,
Bhubaneswar.
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