The duty of the prosecutor to consider beneficial provisions of law, the need for deeper scrutiny of witness evidence, and the requirement to record special reasons for not applying such provisions.

JUDGMENT :

Dr. Durga Prasanna Choudhury, J. - The captioned appeal challenges the judgment and order of conviction and sentence dated 23.06.1992 passed by learned Addl. Sessions Judge, Bhadrak in S.T. Case No. 48/10 of 1992, whereby appellant No. 1 was sentenced to undergo rigorous imprisonment for three years after being convicted under section 324 of the I.P.C. and appellant No. 2 was sentenced to undergo rigorous imprisonment for one year after being convicted under section 323 of the I.P.C. In this judgment, appellant No. 1 and appellant No. 2 will be addressed as accused Benudhar and accused Rabindra respectively.

FACTS :

2. The factual matrix leading to the case of the prosecution is that on 03.07.1991 at 7.30 P.M., the accused persons, including the present appellants, being armed with deadly weapons, namely, tenta, sword, lathi and by forming an unlawful assembly reached in front of the house of informant Gorachand Mahalik. They abused the informant in obscene language. When the accused persons attempted to assault the informant and his brother Pagal Mahalik, the latter tried to flee away from the verandah of their house; but accused Benudhar assaulted by tenta on the left side abdomen of the informant causing bleeding injury on his person. It is alleged, inter alia, that accused Kalandi assaulted by sword to the brother of the informant. Accused Benudhar again assaulted by tenta to Pagal Mahalik causing bleeding injury on his person. Hearing cry of the injured persons, Jemamani Mahalik, the sister-in-law of the informant, came to the spot; but accused Rabindra assaulted by lathi on the right hand of Jemamani causing fracture injury on her person. When the injured persons made hullah for help, the accused persons fled away from the spot. While going away from the spot, they threatened the informant and his brother to kill if they would inform the matter to police. Thereafter, F.I.R. was lodged. During investigation, witnesses were examined, injured persons were sent for medical examination, police visited the spot and prepared spot map. In course of investigation, police also seized one tenta, the weapon of offence, on production by Gramarakhi. The Investigating Officer sent the same to doctor for opinion and the opinion was also received by police. After completion of investigation, charge-sheet was submitted against the accused persons. Hence the case of prosecution.

3. Plea of the accused persons, as revealed from the cross-examination made to P.Ws. and from their statements recorded under section 313 of the Cr. P.C., is that there was previous enmity between the parties for which a police case has been filed against the accused persons. On the other hand, they squarely denied the charges levelled against them.

4. Learned Trial Court considered the oral evidence of eight witnesses examined from the side of prosecution, so also the documents submitted by prosecution and found accused Benudhar and Rabindra guilty under sections 324 and 323 of the I.P.C. respectively and acquitted rest of the accused persons of the charges levelled against them. It is profitable to mention here that learned Trial Court framed charges under sections 148/307/34 of the I.P.C. against all the nine accused persons, including the present appellants.

SUBMISSIONS :

5. Learned counsel appearing for the appellants submitted that the order of conviction and sentence passed against the appellants is illegal and erroneous. Learned trial Court has erred in law by reposing confidence on the evidence of the Investigating Officer on accepting the seizure list prepared by him being anti-dated. He further submitted that learned trial Court has lost sight of sequence of events, as given in the F.I.R., and place of assault, as stated by P.W.1, which is not matching with the F.I.R. Learned trial Court has erred in law by relying upon the evidences of P.Ws. 1 to 4, who are none other than the family members of the informant, including the injured, who are highly in