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2006 DIGILAW 167 (ORI)

Brundaban Sahu v. Pabitra Kumar Sahu

2006-03-02

R.N.BISWAL

body2006
JUDGMENT R. N. BISWAL, J. — This appeal has been directed against the order of acquittal dated 30.4.1988 passed by the learned C.J.M., Ganjam, Berhampur in I.C.C. case No. 22 of 1987. 2. Appellant was the complainant and Respondents were the accused in the Court below. They are all closely related to one another. While accused persons are father and son, complainant and accused Pabitra are co-son-in-laws, their wives being two sis¬ters. They were running a rice mill jointly. Sometime after when misunderstanding developed between them, they entered into an agreement wherein it was agreed upon that the complainant would sell the rice mill to accused Pabitra for a consideration of Rs.94,000/-. It was further stipulated therein that till the rice mill was sold, accused Pabitra would pay a sum of Rs.600/- per month to the complainant towards rent. But since he did not pay it the complainant asked him for the same repeatedly. Ultimately, on 24.3.1987 he went to the rice mill where both the accused were present and asked them to pay the rent. At this both the accused got flared up, abused the complainant in obscene language and assaulted him on his cheek and waist causing injuries. On the same date complainant was medically examined by a private doctor and on the next date filed a written complaint before the S.D.J.M., Ganjam, Berhampur on the allegation that the accused persons committed offence under Sections 504/323 of I.P.C. After perusing the complaint petition and initial statement of the complainant the S.D.J.M. took cognizance of the offence under Section 294/323 of I.P.C. against both the accused persons. Then as it appears the C.J.M., Berhampur got the case transferred to her file and tried it. The plea of the accused-Respondents is one of complete denial of the alleged occurrence. 3. In order to prove his case the complainant examined four witnesses including himself as P.W.1 as against none by the defence. After assessing the evidence on record the trial Court disbelieved the prosecution story and acquitted the accused-Respondents vide order dated 30.4.1988. As stated earlier, being aggrieved with the order of acquittal, the complainant preferred this appeal. 4. Learned counsel appearing for the appellant submitted that the appellant was abused in obscene language by both the respondents and was also assaulted by them on his cheek and waist causing injuries which had been well established through evidence of P.Ws. As stated earlier, being aggrieved with the order of acquittal, the complainant preferred this appeal. 4. Learned counsel appearing for the appellant submitted that the appellant was abused in obscene language by both the respondents and was also assaulted by them on his cheek and waist causing injuries which had been well established through evidence of P.Ws. 1, 2 and 4 and duly corroborated by medical evidence of the doctor (P.W.3), as such the trial Court ought not have ac¬quitted the accused-Respondents. On the other hand learned coun¬sel for the Respondents supported the trial Court judgment. 5. In appeal against an order of acquittal if the appellate Court finds that the view taken by the trial Court is reasonably possible, the same should not be interfered with. Now it is to be seen whether the view taken by the learned C.J.M. is a plausible one. As found from the complaint petition on 24.3.1987 at about 4.00 P.M. while the complainant-appellant demanded accounts from Respondent No.1, both the Respondents got flared up and scolded him in obscene language saying bastard, scoundrel, SALA, MADURCHOD. In his initial statement complainant stated that the accused-Respondents abused him saying “KI TANKA BE MADURCHOD, whereas in his evidence he deposed that they scolded him saying "MADURCHOD, SALA, MA GIHA”. It transpires from the evidence of P.Ws. 2 and 4 that the accused-Respondents abused the complain¬ant-appellant saying “MA GIHA, MADURCHOD” only. So the case of the complainant-Appellant with regard to the alleged use of obscene language by the accused-Respondents developed from stage to stage. Moreover, it appears improbable that the accused-Re¬spondents uttered the obscene language as if in a chorus. Fur¬thermore, there is no direct evidence wherefrom it can be estab¬lished that the so called obscene words were uttered to the annoyance of others. There is also no other evidence wherefrom the same can be inferred. 6. With regard to the offence under Sections 323 of I.P.C., it transpires from the complaint petition as well as the statement recorded under Section 200 of Cr.P.C. that accused-Appellant, Laxminarayan Sahu alone assaulted the complainant-Appellant. But the complainant deposed before the Court below that accused-Respondent Pabitra also assaulted him. P.W.2 also deposed in the same light. As found from the evidence of P.W.2, P.W.4 arrived at the spot after the occurrence was over. So evidence of P.W.4 cannot be relied upon. But the complainant deposed before the Court below that accused-Respondent Pabitra also assaulted him. P.W.2 also deposed in the same light. As found from the evidence of P.W.2, P.W.4 arrived at the spot after the occurrence was over. So evidence of P.W.4 cannot be relied upon. According to the evidence of P.W.3, he examined the complainant-Appellant on 24.3.1987 and found some finger impressions on his left cheek and tenderness on left temperomandibular joint and hip joint. In cross-examination P.W.3 admitted that he did not maintain any register. He gave evidence before the trial Court on 24.3.1987- about one year after P.W.1 was medically examined by him. It appears improbable that P.W. 3 could recollect the details of injuries even after one year of his examination. It was elicited from P.W.1 during cross-examination that the clinic of P.W.3 situates near Berhampur Medical College. There is no reason why P.W.1 (complainant) pre¬ferred to be treated by P.W.3 instead of being treated in the Medical College. Moreover, when the complainant went to P.W.3 for treatment, the latter ought to have informed the police, since it was medico legal case, but he has not done so. 7. Furthermore, complaint petition reflects that since the accused-respondents had influence over the local police and the offences committed were non-cognizable the complainant directly filed the complaint case in the Court. But in his evidence he stated that he had been to the local Police Station to lodge a written report, but as it was not accepted, he filed the complaint case. No police personnel from the local Police Station was examined. 8. Admittedly there was animosity between the complainant-Appellant and the accused-Respondents with regard to management and agreement to sell of a rice mill. As discussed above, the case of the complainant developed from stage to stage. There were also contradictions in the evidence of the prosecution witnesses. 9. From the facts and circumstances of the case it appears that the accused-Respondents might have committed the offence, but there is a long gap between might have and must have. It is the duty of the prosecution to bridge that gap, but in the present case the prosecution has failed to do so. So the Court below rightly acquitted the accused-Respondents. The decision rendered by the trial Court is a possible reasoned order, as such it does not warrant interference by this Court. It is the duty of the prosecution to bridge that gap, but in the present case the prosecution has failed to do so. So the Court below rightly acquitted the accused-Respondents. The decision rendered by the trial Court is a possible reasoned order, as such it does not warrant interference by this Court. Furthermore, this Court in the case of Banda Sanamajhi v. Lukosuna Majhi and anoth¬er, 2005 (II) OLR 176 , held that it would be travesty of justice to convert an order of acquittal after 18 years of the incident. In the present case the incident was alleged to have taken place on 24.3.1987. In the meantime about 19 years elapsed. So in view of the aforesaid decision of this Court, the appeal also deserves to be dismissed. Accordingly, the appeal stands dismissed and the order of acquittal passed by the trial Court is hereby confirmed. Appeal dismissed.