HEMARAJ SHARMA Vs. BANWARILAL BATHWAL

JUDGEMENT

(1.) This appeal is against the order passed by the learned Sessions Judge, Cuttack, acquitting the respondents of charges under Ss.323 and 379, I.P.C.

(2.) The appellant and the respondents are close door neighbours in a crowded residential locality of Cuttack town. Indisputably, they had been litigating in different Courts for several years and the relationship between them was far from being cordial. The appellant filed a complaint petition making allegations that in the morning of 27-3-1976 when he was engaged in the work of repairing and painting the old gate in front of his house, the respondents who were father and son respectively having formed an unlawful assembly being armed with lathis and cycle chains abused him in obscene language and having surrounded assaulted him by means of lathis and also attempted to hit him by the cycle chains. Respondent Banwarilal during the assault snatched away a gold necklace valued at Rs. 1500/- from his neck. The appellant was injured and was examined by a private medical practitioner (P.W. 4) who gave a certificate (Ext. 1).

(3.) The learned Judicial Magistrate who tried the respondents framed charges against them under Ss. 147,323 and 379, I.P.C. Their defence to the charges was that on account of previous enmity, a false case was brought against them. In order to substantiate the charges, the appellant examined himself, two eye-witnesses to the occurrence and the private medical practitioner (P.W. 4). The learned Judicial Magistrate rejected the evidence of P.W. 2 on the ground that he was a chance witness and had no business to be present at the time and the place when the alleged occurrence took place. He, however, accepted the evidence of the rest of the prosecution witnesses and while acquitting the respondents of the charge under S. 147, convicted all of them under S. 323 and sentenced them to undergo rigorous imprisonment for six months each. In addition, he convicted respondent Banwarilal under S. 379, I.P.C. and sentenced him further to undergo rigorous imprisonment for six months. The respondents appealed before the learned Sessions Judge who by the impugned order entertained doubt as to the truth of the prosecution case and having disbelieved the prosecution witnesses acquitted the respondents.