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2006 DIGILAW 620 (ORI)

Arjun Prusty v. Kailash Ch. Barik and four

2006-08-25

A.K.SAMANTARAY

body2006
JUDGMENT A. K. SAMANTARAY, J. — In this appeal under Sec. 378 (4) of the Criminal Procedure Code, 1973 the appellant (complainant) assails the order dated 14.8.1989 passed by the learned J.M.F.C., Khurda in I.C.C.Case No. 165 of 1987/T.R.Case No. 350 of 1987 acquitting all the respondents/accused persons of the charges under Secs. 323/379 read with Section 34 of the I.P.C. 2. The appellant filed a complaint before the S.D.J.M., Khurda on 15.10.1987 alleging therein that on 14.10.1987 at 6 P.M. these respondents in furtherance of their common intention, entered into the Godown house of the appellant situated at Bhu¬sandapur Bazar and committed theft of two bundles of Napkins and 14 numbers of Sarees and Dhotis. On protest by the appellant, the respondents assaulted him by dealing pushes to his chest. The appellant as complainant in order to substantiate the charges examined 4 witnesses including himself and his son and the re¬spondents examined one D.W. in their turn. 3. I have gone through the complaint petition wherein it is admitted that the appellant has subsisting dispute with the respondents with regard to intervening boundary wall, as a result of which the house of the appellant has remained exposed and open. It is also mentioned in the complaint petition that at the time of occurrence, hearing some sound of breaking of the house the appellant went there and found the respondents going away carrying two bundles of Napkin and 10 to 15 pieces of Sarees and Dhotis and on his protest, respondents Ladu Kishore Barik and Makar Barik dealt pushes to him and when he raised alarm, wit¬nesses arrived but the respondents escaped with the clothes. 4. On scrutiny of the evidence on record adduced by the appellant I find that the appellant has examined himself as P.W.1 and he has examined his son as P.W.4. P.Ws. 2 and 3 are said to be the two independent witnesses. P.W.2 though in the examination in chief has deposed to have seen the occurrence, in the cross examination, he has clearly stated that he has not seen the occurrence and he reached the spot half an hour after the inci¬dent. He has denied to have seen the removal of the clothes, as alleged, and also stated that he has no knowledge about the assault by anyone to the appellant. He has denied to have seen the removal of the clothes, as alleged, and also stated that he has no knowledge about the assault by anyone to the appellant. The other witness P.W.3 though has stated that he suo motu came to the spot and saw respondents Kailash and Ladu were holding one bundle of Napkin each on their heads and respondents Chakra and Makara were holding 7 to 8 pieces of Dhotis and Sarees each and has further stated to have seen the back side godown was broken, in the cross-examination he has admitted that he is a witness for the complainant in another I.C.C.Case No. 91 of 1987 which this appellant (complainant) filed against these respondents. In cross-examination he has further stated that though there are 100 houses in the said sahi he has no knowledge as to if any of the sahi people had come and was present at the spot. 5. The other part of the evidence of the appellant is that soon after the occurrence he had gone and lodged a written report at the Bhusandapur Out-post. No explanation has been given by the appellant as to what propelled him to file a complaint against the respondents on the very next day of his lodging F.I.R. against them, without waiting for police action. The learned Magistrate in his judgment has dealt with this aspect and has recorded that neither the copy of the FIR nor original FIR was produced to show the genuineness of the complaint and allegation against the respondents. 6. Admittedly, the complainant had filed criminal cases against the respondents and there was also a civil suit pending between the parties, so also a proceeding under Section 107, Cr.P.C. The evidence of the appellant and his son (P.W.2), who is also admittedly a witness for the appellant in other I.C.C.cases, cannot be said to be trustworthy so as to act upon it to find the case of the appellant genuine and true and the charges levelled against the respondents to have been proved. When a valuable right is available in favour of the respondents has accrued after their acquittal by the learned Magistrate, I find no reason to interfere with the said order of acquittal, which is just and proper. In the result, the Criminal Appeal stands dismissed. Appeal dismissed. Appeal dismissed.