Ramesh Burma vs Radhamadhab Sahu

P.K. Mohanti, J.—The Petitioner was tried along with three others for an offence u/s 323, Indian Penal Code. The trial Court convicted him u/s 323, Indian Penal Code and sentenced him to pay a fine of Rs. 100/- or in default to undergo R. I. for one month. The other three accused persons were acquitted under benefit of doubt.

On appeal, the Additional Sessions Judge, Sambalpur confirmed the order of conviction and sentence.

The case of the complainant-opposite party was that he had monetary transaction with the father of the Petitioner. On 20-10-1972 at about 9.30 p.m. while he was present in a betel shop, the Petitioner went there and said that he (opposite party) was wanted by his father. When the opposite party said that he would go afterwards the Petitioner abused him in filthy language. When the opposite party protested, the Petitioner dragged him to a road where the other three accused persons arrived and all of them committed assault on him. He sustained bleeding injury on the head and was admitted into the Hospital where he was treated as an indoor patient till 27th October, 1972. After discharge from the Hospital he filed the complaint petition on 30-10-1972.

The plea of the Petitioner was a total denial of the occurrence.

The order of conviction is based mainly on the direct Evidence of P.Ws. 1, 3, 5 and the corroborative evidence of the doctor P.W. 2.

The learned Counsel appearing on behalf of the Petitioner contended that the order of conviction u/s 323, Indian Penal Code is based on no evidence.

On a perusal of the evidence it appears that P.W. 1 stated that while he was present at the betel shop the Petitioner gave him a push and pulled his by his wearing cloth. Immediately thereafter the other three accused persons arrived there and assaulted him. He categorically stated that accused Sawarmal assaulted him with a hammer and the others gave only fist blows and slaps. Thus it appears that the bleeding injury on his head was caused by the blow given with hammer by accused Sawarmal who has been acquitted. The evidence of the opposite party that he was given a push by the Petitioner is not corroborated by any other witness. According to P.Ws. 3 and 5 the Petitioner simply dragged the opposite party by his cloth upto the road. In this state of evidence the conviction u/s 323. Indian Penal Code is not justified. It is however the consistent evidence of the witnesses that the Petitioner dragged the complainant-opposite party upto the road where the assault was committed. P.W. 5 is an independent witness and there is no reason to disbelieve him. The act of the Petitioner in dragging the complainant-opposite party amounts to an offence u/s 352, Indian Penal Code. I would therefore alter the conviction u/s 323, Indian Penal Code to one u/s 352, Indian Penal Code and impose a fine of Rs. 50/- only. In default of payment of fine, the Petitioner should undergo R. I. for 10 days.

The criminal revision is dismissed with the above modifications.

Revision dismissed.