Decided on December 28,1973

Kumod Khandual Appellant
Baji Khandual And 2 Ors. Respondents


B.K.Patra, J. - (1.) THIS application under Section 439 of the Code of Criminal Procedure has been filed by the Petitioner Kumod Khandual against an order of acquittal passed by the Judicial Magistrate, First Class, Aska in G.R. Case No. 141 of 1970. The prosecution case is that on 4 -8 -1970 at about 4 p.m. when Parasu Khandual (p.w. 2) the brother of the Petitioner was going towards a tope to attend a call of nature, the opposite parties along with two others who had the common intention to assault Parasu and in pursuance thereof were armed with clubs and katuas came from inside the nearby Thakurani temple and assaulted Parasu causing several injuries on his person some of which turned out to be grievous in nature. Parasu fell down unconscious. On hearing the hulla raised by him, witnesses arrived at the spot on seeing whom the accused persons ran away from the spot. Some of the witnesses carried Parasu in Dola to Berhampur and got him admitted in the College Hospital. The Doctor (p.w. 10) who examined the injuries on Parasu sent information to the Berhampur Town Police Station. On the evening of 11 -8 -1970, a formal report about the occurrence was lodged by p.w. 1 the brother of the injured at the Pattapur Police Station within the limits of which the occurrence took place. A case was registered and after completing investigation a charge -sheet was submitted against the opposite parties. The latter pleaded not guilty to the charge.
(2.) ELEVEN witnesses were examined for the prosecution and after considering their evidence, the learned Magistrate recorded the following findings: (1) Although p.ws. 5 and 6 purported to be eye -witnesses to the occurrence, it transpired in evidence that they had not witnessed the occurrence. (2) None of the other witnesses examined in this case had seen the occurrence. (3) P.w. 2 had sustained several injuries on his person some of which were grievous in nature being fractures. (4) The evidence of p.w. 2 the injured that the opposite parties assaulted him stands uncorroborated. The learned Magistrate says that although there is no bar to accept uncorroborated testimony, he has referred to certain aspects of the evidence of p.w. 2 to show that it would not be safe to act on his uncorroborated testimony.
(3.) THERE is the evidence of p.w. 7 that p.w. 2 was insane and was under treatment and used to get violent sometimes and beat others. The investigating Officer deposed that p.w. 2 was not a man with balanced mind and was not talking coherently. In the circumstances, the Magistrate felt that absolute reliance cannot be placed on the evidence of p.w. 2. For the reasons stated above, the Magistrate acquitted the opposite parties.;

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