Afr Mahabir Prasad Agarwal vs State Of Odisha
2023 Latest Caselaw 4999 Ori

              THE HIGH COURT OF ORISSA AT CUTTACK

                           CRA No. 118 of 1993

       (An appeal under Section 374(2) of the Code of Criminal
       Procedure, 1973 against the judgment and order of
       conviction passed by learned Additional Sessions Judge,
       Balangir in Sessions Case No. 85/37 of 1992)
                                  ---------------

AFR    Mahabir Prasad Agarwal             ......           Appellant

                             -Versus-

       State of Odisha                    ......        Respondent

       Advocate(s) appeared in this case:
       _______________________________________________________
          For Appellant     :    Mr. B.K. Swain, Advocate.

         For Respondent      :     Mr. N. Pratap,
                                   Addl. Standing Counsel
       _______________________________________________________
       CORAM:
             JUSTICE SASHIKANTA MISHRA

                                  JUDGMENT

3rd May, 2023

SASHIKANTA MISHRA, J.

The appellant in the present appeal questions the

correctness of the judgment of conviction and sentence

passed by learned Additional Sessions Judge, Balangir on

31.03.1993 in Sessions Case No. 85/37 of 1992 whereby he

was convicted for the offence under Sections 355 and 427 of

IPC and sentenced to undergo R.I. for 6 months on each

count. Both the sentences as above were directed to run

concurrently.

2. The prosecution case, briefly stated, is that on

15.09.1990 while the Sub-Collector-in-charge of

Birmaharajpur, Bipin Bihari Jena and his staff were

proceeding in a Government Jeep to meet the Collector at

Balangir to discuss the law and order situation, they could

not cross the river at Ullunda as it was in spate. While

returning to Birmaharajpur, the local MLA, R.N. Panigrahi

and his followers detained the Jeep near bus stand of

Ullunda by keeping motorcycles on the road. Thereafter, the

culprits abused the Sub-Collector and the present accused-

appellant, Mahabir Prasad Agarwal used abusive words,

caught hold of his neck and dragged him by holding the

collar of his shirt. He also gave fist blows. The accused is said

to have asked as to why the Sub-Collector had not appointed

him as Storage Agent and had checked his paddy and rice

loaded vehicles. The MLA was instigating his followers to

assault the informant. Other persons, namely, Mahendra

Singh and Ram Parosh Singh also arrived at the spot to

assault the Sub-Collector. The Sub-Collector thereafter

lodged the FIR on 16.09.1990 before the Sindhol Police

Station, leading to registration of Sindhol P.S. Case No. 19(1)

of 1990 under Sections 143/342/323/353/427/355/294/

506/149 of IPC and Section 7 of the Criminal Law

Amendment Act. Investigation was conducted and on

completion thereof, charge sheet was submitted against the

accused persons for the aforementioned offences including

the offence under Section 307 of IPC.

3. All the accused persons including the present

appellant took the plea of denial.

4. To prove its case, prosecution examined 10

witnesses, out of whom P.W.-9 is the informant and P.W.-1 is

one of the injured persons. P.W.-2 is a staff of the Sub-

Collector's office. P.W.-3 is a Junior Clerk. P.W.-4 is an

independent witness. P.W.-5 is a Senior Clerk. P.W.-6 is a

Constable. P.W.-7 is also a Constable. P.W.-8 is the doctor,

who had examined the informant after the occurrence and

P.W.-10 is the I.O. That apart, prosecution also proved six

documents from its side and one material object.

5. After appreciating the evidence on record, the

trial Court found that the charge against all the accused

persons except the present appellant was not established and

therefore, the said accused persons were acquitted. However,

the trial Court found ample evidence to hold the appellant

guilty and therefore, convicted him under Sections 355 and

427 IPC and sentenced him as aforesaid.

6. Heard Mr. B.K. Swain, learned counsel

appearing for the appellant and Mr. N. Pratap, learned

counsel for the State.

7. Mr. Swain assails the findings of the trial Court

by submitting that the prosecution story as laid is completely

at variance from the evidence of the informant, who is also an

injured. He further submits that there is no corroboration

whatsoever to the version of the informant. That apart, the

other witnesses have attempted to exaggerate the prosecution

story but when the informant himself does not support the

same, such evidence could not have been relied upon by the

trial Court.

8. Per contra, Mr. N. Pratap has argued that there

is clear evidence that the accused-appellant was present at

the spot and misbehaved with the informant. The informant

has also clearly deposed that the appellant caught hold of the

collar of his shirt and also threatened him with the lighted

end of his cigarette. According to Mr. Pratap, the impugned

order of conviction and sentence does not warrant any

interference.

9. Reading of the deposition of the informant, P.W.-

9 reveals that according to him, the accused-Mahabir Prasad

Agarwal was present at the spot and 'misbehaved' him and

also caught the collar of his shirt. Be it noted that his

statement that the accused brought a burning cigarette and

pointed the same towards his eyes has been proved to be a

contradiction in view of the admission by the I.O. (P.W.-10)

that he had not stated so before him during investigation.

Therefore, the only thing, that is, available in the evidence of

P.W.-9 is the alleged misbehaviour by the accused of the

informant and of catching the collar of his shirt. Firstly, the

word 'misbehaved' has been stated in too broad and general

terms to have any definite meaning. In other words, the

witness has not clearly stated as to what kind of

misbehaviour the accused indulged in. As regards catching

of the collar of the shirt, it cannot be treated as an act done

with any criminal intention. Coming to the evidence of P.W.-

1, he has not whispered a word about the accused. In fact, he

has not even named the accused, so also the other witnesses

P.W.-2, 3, 4, 5 and 6. There is, of course, the evidence of the

doctor to the effect that the informant had sustained three

abrasions on his right forearm, back and the forehead and

that all were simple in nature. While the presence of injuries

can be the result of assault, yet when the injured witness

himself does not implicate the accused as having caused the

assault he cannot be held liable for such injuries.

10. Reading of the impugned judgment reveals that

the Court below has apparently lost sight of these vital

aspects and has ignored the oral evidence, which is direct

evidence of the occurrence and chose to place undue

weightage on the medical evidence. Obviously, the medical

evidence, without the support of ocular evidence on the facts

and circumstances of the present case, can have no meaning.

It must also be considered that as many as 14 persons were

charge sheeted and tried including the present appellant,

though 13 of them have been acquitted, yet the possibility

that any one of the persons comprising the mob may have

caused the injuries found on the injured cannot entirely be

ruled out.

11. In such view of the matter, this Court finds that

the reasoning adopted by the trial Court to hold the accused

guilty cannot be sustained.

12. In the result, the appeal is allowed. The

impugned judgment of conviction and sentence is hereby set

aside. The appellant being on bail, his bail bonds be

discharged.

..................................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 3rd May, 2023/ A.K. Rana, P.A.

                   Digitally signed by
AJAYA      AJAYA KUMAR RANA
KUMAR RANA Date: 2023.05.04
           17:41:41 +05'30'