Decided on January 16,1978

Dharmu Naik Appellant
Rabindranath Acharya Respondents


P.K.MOHANTI, J. - (1.) THIS is a complainant's appeal against an order of acquittal. The accused -respondent is a police officer who was posted as Officer -in -charge of Koksara Police Station in the district of Kalahandi at the time of occurrence.
(2.) IN G. R. Case No. 351 of 1973 (wrongly registered as G. R. Case No. 361 of 1973 as deposed to by D.W. 1) the complainant and his brother (P.W. 3) were prosecuted under Sections 294 and 323 of the I. P.C. and Sections 34 and 25 of the Cattle Trespass Act. On 21 -7 -73 they surrendered in court and were ordered to be released on bail. The complainant's case was that on the same day he went ahead by a bus towards his village and P.W. 3 was to carry the bail order for delivery at the Police Station. The respondent was also travelling by the same bus up to Koksara Police Station. When the bus reached the Police Station the respondent forced the complainant to get down. He protested saying that he had been allowed bail. But the respondent dragged him out of the bus, took him to the Police Station and detained him there for the night and committed assault on him. Next morning P.W. 2 Madhusudan Chhatria went to the Police Station and produced the bail order, but the respondent threw it away and rebuked him. Then P.W. 2 returned to the village and made over the bail order to P.W. 3 Gouranga Naik who produced the same before the respondent, but he was taken to custody. Then the complainant and his brother were taken to Dharamgarh and were produced before the Magistrate who directed their release. Upon these allegations the respondent stood charged under Sections 323 and 342 I.P.C. The respondent denied the charge and contended that the case was foisted against him as he had seized some stolen paddy from the possession of the appellant in course of investigation of Koksara P. S. Case No. 58 of 1972 under Section 379 I.P.C. He also contended that he arrested the appellant and his brother as they were accused in G. R. Case No. 351 of 1973 and they did not produce any bail order before him. He denied the allegation of assault.
(3.) AT the trial, the complainant examined himself and five other witnesses. The respondent also examined the defence witness. The learned Magistrate on a consideration of the evidence led by both the parties came to hold that the accused had legally arrested the complainant as he was involved in a cognizable offence under Section 294 I.P.C. and that the story of production of the bail order before the respondent was doubtful. He also disbelieved the allegations of assault. Accordingly he. acquitted the respondent of both the charges. It is urged on behalf of the appellant that the findings of the learned Magistrate are against the weight of evidence on record and the order of acquittal is erroneous.;

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