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Orissa High Court · body

2003 DIGILAW 9 (ORI)

Basudeva Satapathy v. State of Orissa

2003-01-08

A.S.NAIDU

body2003
JUDGMENT A. S. NAIDU, J. — Both appellants were charged under Sections 332 and 333 of the Indian Penal Code for having voluntarily caused hurt to an employee of the Steel Authority of India Limited, Rourkela, a Government Company. Bereft of unnecessary details, the short facts of the case as revealed from the FIR are that on 23rd of November, 1984, P.W.6 along with P.Ws. 1 and 14 who were em¬ployed as Land Guards of the Land Office of SAIL went to Sector 18 Jhumpudi Market to prevent the accused-appellants from at¬tempting to unauthorisedly occupy a piece of land which was acquired by the State Government and allotted in favour of SAIL. The Land Guards when tried to demolish and remove the encroach¬ments, it is alleged, the appellants got enraged and assaulted them with lathis. It was also stated that the people of the locality also gathered there and they pelted stones, as a result of which the personnel of SAIL wore injured. On the basis of the said FIR, G.R. Case No. 2321 of 1984 was registered which was subsequently converted as S.T. No.39/11 of 1986. Learned Addi¬tional Sessions Judge, Rourkela who tried the case, by his judg¬ment dated 24th of October, 1986 has convicted the appellants under Section 333, IPC and sentenced them to undergo rigorous imprisonment for three years.He further convicted the appellants under Section 332, IPC and sentenced them to undergo rigorous imprisonment for one year with direction that both the sentences would run concurrently. The said judgment is impugned in this appeal. 2. I have heard learned counsel for the appellants and the learned counsel for the State at length and perused the lower Court records and the documents. 3. To prove its case, prosecution examined eleven witnesses, out of whom P.W.1 was the injured. P.Ws 2, 3 and 4 were the Land Guards of SAIL who had accompanied P.W.1 to the spot at the relevant time in course of discharging their duties. P.W.5 was the doctor who had examined P.W.1 on police requisition. P.W.6 was the informant who had accompanied P.W.1 to the spot. P.Ws. 7, 8 and 9 were the local residents having their shops in Sector 18. P.W. 10 caused production of Exts.4 and 5 (gazette notifications) and P.W.11 was the investigating officer. The defence of the appellants was complete denial. P.W.6 was the informant who had accompanied P.W.1 to the spot. P.Ws. 7, 8 and 9 were the local residents having their shops in Sector 18. P.W. 10 caused production of Exts.4 and 5 (gazette notifications) and P.W.11 was the investigating officer. The defence of the appellants was complete denial. It was further stated by them that the employees of SAIL used to collect money unauthorisedly from the small shop owners. On the date of the occurrence while some of them came and forcibly tried to collect money that was resented by the populace of the locality and there was a tussle. Being enraged by such unauthorised and illegal acts of the employees of SAIL, the local inhabitants also assaulted them and pelted stones, as a result of which P.W.1 got injured. The appellants had actually not assaulted P.W.1. 4. Admittedly the land in question was acquired by Government of Orissa under Ext.4, the gazette notification. The said land was transferred to Hindusthan Steel Limited, Rourkela under Ext.5. Both the documents reveal that the land was transferred free from any encroachment. According to the prosecution, some local inhab¬itants forcibly tried to enter into the said land allotted in favour of SAIL and raise unauthorised constructions thereon. Coming to know about such fact, on the date of occurrence, offi¬cers/employees of SAIL were deputed to prevent such unauthorised construction. Ext.6 is a copy of the Office Order which reveals that the aforesaid duty had been assigned to P.Ws.1 and 6 on 23.11.1994. The evidence of P.W.1 clearly reveals that when the officials of SAIL tried to prevent the encroachment and used force to remove the unauthorised constructions raised on the land of SAIL, the appellants assaulted P.W.1. The said statement is corroborated by some other prosecution witnesses. It is a fact that some of the prosecution witnesses, i.e. P.Ws.3, 4, 7, 8 and 9, were declared hostile as they did not supports the prosecution case. 5. In support of the defence story that being arrayed by the illegal collection of gratification by the employees of SAIL the people of the locality pelted stones, and attacked the said employees, four witnesses were examined. 6. Learned counsel for the appellants in course of having submitted that SAIL being a company, its employees cannot be ‘public servants’ so as to attract the provisions of Sections 332 and 333 of the Indian Penal Code. 6. Learned counsel for the appellants in course of having submitted that SAIL being a company, its employees cannot be ‘public servants’ so as to attract the provisions of Sections 332 and 333 of the Indian Penal Code. But the definition of ‘public servant’ in sub-clause (b) of twelfth clause of Section 21 of the Indian Penal Code which states that ‘public servant’ denotes a person failing under any of the descriptions and every person in the service or pay of a Government company as defined in Section 617 of the Companies Act, 1956 squarely covers the employees of a Government Company like SAIL. In view of this position, the sub¬mission made by the learned counsel for the appellants does not merit consideration. 7. The plea taken by the defence that being enraged by the illegal collection of gratification by the officials of SAIL, the local people pelted stones thereby causing hurt to P.W.1 cannot also be accepted especially in view of the fact that no FIR to that effect was lodged nor any complaint was made before the higher authorities of SAIL. Thus the only question that needs to be considered is as to whether the appellants assaulted P.W. 1 and as to whether P.W.1 was discharging any duty he was legally authorised to do. Admittedly, as would be evident from the statement of P.W.1, the land in question was not in exclusive possession of SAIL. It also appears that on the date of the occurrence the unauthorised structure raised by the appel¬lants was existing over the disputed land and P.W.1 directed the other officials of SAIL who had accompanied him to demolish the said structures. It was also submitted on behalf of the appel¬lants that such action of P.W.1 was in excess of his jurisdic¬tion, inasmuch as there was no order of the competent authority authorising P.W.1 or any other official of SAIL to remove the said existing structures. Admittedly no proceeding was initiated for removal of such unauthorised structures and thus P.W.1 and other officials of SAIL acted beyond their jurisdiction. It was further submitted that though the appellants had no title over the land in question, admittedly they were trespassers and were possessing the land by raising constructions. Admittedly no proceeding was initiated for removal of such unauthorised structures and thus P.W.1 and other officials of SAIL acted beyond their jurisdiction. It was further submitted that though the appellants had no title over the land in question, admittedly they were trespassers and were possessing the land by raising constructions. It was forcefully submitted by the learned counsel for the appellants that a tres¬passer has a right to protect his possession and he can only be evicted under due process of law and not by show of muscle power. 8. Be that as it may, the fact remains that P.W.1 was a public servant and he had directed the other employees of SAIL to remove the unauthorised constructions made by the appellants on a land of SAIL. Further, the appellants had no semblance of right or title either to possess the said land or to make any unauthorised construction thereon. Admittedly, P.W.1 and other employees of SAIL were public servants and they were discharging their lawful duties. In such circumstances, the appellants had no right to take the law into their own hands and assault the public serv¬ants. But then question arises as to whether P.W.1 and other employees of SAIL in fact sustained injuries due to assault by the appellants or got injured due to pelting of stones by the nearby shop owners. 9. The prosecution has not come with clean hands. Most of the independent witnesses have turned hostile. As would be evident from the deposition of P.W.5, the treating physician, the in¬juries found on P.W.1 could be caused by blunt objects and all the injuries excepting one were simple in nature. 10. Considering the facts and circumstances of the case and in view of the fact that prosecution has failed to establish its case beyond all reasonable doubts that in fact the injuries were caused to P.W.1 by the appellants, and in absence of evidence as to which of the injuries could be attributed to which of the appellants, more so when there is evidence to show that there was pelting of stones from all sides, I am not in a position to accept the prosecution case and confirm the finding of the Courts below that the appellants were solely responsible for the in¬juries caused to P.W.1. However, a perusal of the statements of the witnesses, leads to an irresistible conclusion that the appellants had no authority to possess a land which did not belong to them and further to raise unauthorised constructions thereon. They did not stop there, and tried to prevent the public servants from discharging their duties. There is also evidence to show that the appellants tried to physically prevent P.W.1 and other employees of SAIL who were discharging their duties and caused hurt. Thus I am satisfied that the charge under Section 332, IPC is established against the appellants. In view of the discussions made above, while acquitting the appellants of the charge under Section 333, IPC, I uphold the conviction of appel¬lants under Section 332, IPC. 11. The occurrence was of the year 1984 and almost nineteen years have passed in the meanwhile. On a cumulative assessment of the facts and circumstances of the case, I feel that ends of justice would be better served if instead of substantive sentence of imprisonment, a sentence of fine is imposed on the appellants. Accordingly, I sentence the appellants under Section 332, IPC to pay a fine of Rs.3,000.00 (Three thousand) each within a month hence, in default to undergo rigorous imprisonment for a period of one year. The Criminal Appeal is thus allowed in part. Appeal allowed in part.