23.04.2024 Savitri Ratho, J This application under Section 401 of the Code of Criminal Procedure has been filed challenging the judgment and order dated 24.05.2006 passed in Criminal Appeal No. 34/2 of 2002/2006 by the learned Addl. Sessions Judge (Fast Track), Bargarh. By judgment dated 28.09.2002 passed by the learned Chief Judicial Magistrate - A.S.J., Bargarh in S.T. Case No.223/63 of 1998 the petitioner had been acquitted of the charge under Section 307 of IPC and convicted for commission of offence under CRLREV No. 401 of 2006 Page 2 of 7 Section 324 of IPC and sentenced to undergo R.I. for one year. Six other accused persons were acquitted of all offences. In appeal, the sentence of imprisonment has been reduced to the period already undergone and for payment of fine of Rs.1000/-, in default to undergo R.I. for a period of three months.

2. The prosecution case in brief is that on 13.02.1997 at about 10.00 a.m., there was an altercation between one Kapu Kanda and the informant over the cutting of ridge of the land belonging to the informant by the former. In the said night at about

9.00 p.m., while the informant and his other brothers were discussing the matter in their home, they heard a hullah in the court-yard of their house. They came out to find that the seven accused persons armed with Tangia and Thenga had come to their house and they abused them in filthy language. When Bira Meher (P.W.2) protested, the present petitioner threatened to kill him and dealt one blow by means of a Tangia on his head. He sustained injury and fell down on the ground. To prevent further assault on his brother, the informant snatched away the Tangia from the hand of the present petitioner. Thereafter, co-accused Jagannath Kanda assaulted Manakara Meher by means of a stone as a result of which the later received injuries on his finger. When the informant party CRLREV No. 401 of 2006 Page 3 of 7 raised hue and cry, the accused persons assaulted them with their sticks, as a result of which the daughter of the informant sustained injuries and fell down on the ground. The accused fled from the spot when the villagers reached the spot. As the condition of the injured Bira (P.W.2) was serious, he was taken by the villagers in a Trekker to the Police Station where he lodged the FIR. After receipt of the injury report, charge sheet was filed against the accused persons and they stood trial for commission of offences punishable under Sections 307, 323, 324, 336, 149 of IPC.

3. The defence plea was one of denial of the prosecution case and the specific plea was taken that the accused persons had been assaulted by the informant party and the present case has been filed on false allegation as a counter blast to the case which has been filed against the informant and his family members.

4. The trial Court framed four points for determination.

5. During course of trial, in order to prove its case, the prosecution examined eleven witnesses. While the defence did not examined any witness. P.W.1 Parameswar Meher is the informant, P.W.2 Bira Meher, P.W.3 Manakara Meher and P.W.6 Bhagirathi Meher are the injured witnesses, P.W.4 Balistha Majhi, P.W.5 Pabitra Bisi CRLREV No. 401 of 2006 Page 4 of 7 and P.W.8 Rabi Sahu did not support the prosecution case for which they were declared hostile, P.W.7 Chakamana Meher is a witness to the occurrence, P.W.9 Narayan Pasayat and P.W.10 Satyanarayan Padapanda are the Medical Officers and P.W.11 Kalyan Kumar Padhi is the I.O.

6. The prosecution exhibited ten documents. Ext.1 is the written report, Ext.2 is the medical report of Bh