THE STATE Vs. NARASINGHA KHUNTIA

JUDGEMENT

(1.) THIS appeal is at the instance of the State of Orissa against the judgment of acquittal passed by the learned Assistant Sessions Judge, Bhubaneswar. The Respondent was tried for an offence under Section 307, Indian Penal Code.

(2.) THE short facts of the prosecution case were these: The victim Rajkishore Sahu is a goldsmith by profession and a resident of the town of Bhubaneswar. The Respondent was a resident of village Kapaleswar in the suburbs of Bhubaneswar town. Once upon a time he was a substantial person but gradually his assets were sold away and ultimately he mortgaged with possession his own residential house. He was known to Rajkishore 's son (p.w. 2) and on the persuasion of p.w. 2, Rajkishore (p.w. 9) had agreed to accommodate the Respondent for some time. The house of p.w. 9 consisted of three rooms and the outer one abutting the road was the shop -room where the Respondent was living during that period. Initially, the Respondent was accommodated for a brief period but he prolonged his stay p.w. 9 found that p.w. 2 was becoming wayward in the company of the Respondent. Often, there used to be disputes over the continued stay of .the Respondent in the house. In the last lap, the Respondent had been given ten days time expiring on 19 -9 -1966 for going away from the premises p.w. 9 was in the habit of taking tea early morning. There are some shops at a distance of 4 to 5 hundred cubits from his house p.w. 9 used to go for tea to that place and, on his way back, used to pick up the milk from the Government supply depot for his family. In the morning of 19.9.1966 about 6. A.M. p.w. 9 had gone for tea. While returning on cycle, he met the Respondent standing at the Badheibanka crossing. When p.w. 9 came near about the Respondent, the latter suddenly poured nitric acid from a bottle on p.w. 9. P.w. 9 fell from the cycle. The Respondent stabbed p.w. 9 at different parts of his body with a knife. p.w. 9 managed in that injured condition to go home which was at some distance from that place and disclosed about the incident including the name of the Respondent as his assailant to his wife and son (p.w. 2). Thereafter, he fainted and became unconscious. Soon after 8 'O ' clock in the morning when the Police came to the house of p.w. 9, the First Information Report was lodged by p.w. 2. p.w. 9 was removed to the hospital where he regained senses around 11 'O ' clock. His condition was serious and being apprehensive of his life, a dying declaration (Ext. 6) was taken from him.

(3.) THE learned Assistant Sessions Judge held that the First Information Report (Ext. 1) was not admissible in evidence. He did not attach any importance to the dying declaration (Ext. 6). He was not prepared to convict the accused on the) basis of the evidence of p.w. 9 alone. According to him, the conduct of the accused as deposed to by some of the prosecution witnesses did not fit in with the normal human conduct of a guilty person. He accepted the explanation of the accused in regard to the three injuries on his person as having been caused during the cooking in the previous night from spilling of hot oil and concluded: