18.03.2024 Savitri Ratho, J This revision under Section 401 of the Code of Criminal Procedure has been filed challenging the judgment and order dated 08.12.2005 passed by the learned Addl. Sessions Judge, Sonepur in Criminal Appeal No.28 of 2003 confirming the judgment passed by the learned S.D.J.M., Birmaharajpur in G.R. Case No.79 of 2001 (T.R. No. 138 of 2001) acquitting the petitioner from the CRLREV No. 39 of 2006 Page 2 of 13 charge under Sections 341, 332, 506, 34 of IPC and acquitting co-

accused Pabitra Mohan Hata @ Mitu from all charges and convicting the petitioner for commission of the offence under Section 353 of IPC and sentencing him to undergo S.I. for two years.

PROSECUTION CASE 2. The prosecution allegation in brief is that P.W.1 Khetra Bhoi, the home-guard posted as Birmarajpur Police Station, on 16.06.2001 at about 5.00 p.m., noticed a passenger bus “Pati Bus”

parked on the road causing inconvenience to the public and the traffic. He asked the petitioner who was the driver of the bus and the conductor to move the vehicle ahead. The accused persons got down from the bus, caught hold the arms of P.W.1 and twisted them. The petitioner caught hold of P.W.1’s shirt collar dealt fist blows on him. Thereafter, the co-accused alighted from the bus and pushed the informant as a result of which he fell down. Both the accused persons removed and whistle of the informant and took away of cash of Rs.50/- from his pocket. P.W.1 lodged FIR at the police station on 16.06.2001 investigation was taken by the P.W.7 Biraj Chandra Sahi. After completion of investigation, he submitted charge sheet against the petitioner and co-accused CRLREV No. 39 of 2006 Page 3 of 13 Pabitra Mohan Hata @ Mitu for commission of offences punishable under Sections 341, 332, 553, 506, 34 of IPC and the petitioner and the co-accused faced trial for the said offences.

DEFENCE PLEA 3. The plea of both the accused persons was one of false implication.

DECISION OF TRIAL COURT 4. The learned S.D.J.M., Birmaharajpur framed three points for determination in this case and after careful examination of the evidence of the witnesses found that the offences under Sections 341, 332, 506 of IPC were not made out against any of the accused persons and as the informant did not implicate the co-accused Pabitra Mohan Hata @ Mitu, held that the offence under Section 353 of IPC was not made out against him and acquitted him from all the charges. It found that the evidence of the three occurrence witnesses to cogent, clear and trustworthy and sufficient to convict the petitioner for commission of the offence under Section 353 of IPC. It turned down the plea of false implication by holding that in the absence of any rivalry, previous grudge or enmity, there was no reason to doubt the evidence of the three occurrence witnesses. In view of the nature of the offence, the benefit of the Probation of CRLREV No. 39 of 2006 Page 4 of 13 Offender Act was not extended to the petitioner and he was sentenced to undergo S.I. for a period of two years under Section 353 of IPC.

DECISION OF APPELLATE COURT 5. The learned Appellate Court held that the evidence of the informant as well as other witnesses, that the informant was assaulted while he was discharging public duty, has remained unshaken during their cross-examination and the discrepancies in their evidence were natural. It turned down the contention that the prosecution case should be disbelieved in the absence of documentary evidence that the informant and the witnesses were on duty, as the evidence of the informant, eye witnesses and