STATE OF ORISSA Vs. GOLLARI DAMO

JUDGEMENT

(1.) THIS is an appeal by the State against an order of the Sessions Judge, Koraput acquitting the respondent of a charge under Section 302 Indian Penal Code for having committed the murder of his uncle Golari Dasarathi on the night of 2nd August, 1968. The respondent Gollari Damo and the deceased were residents of village Urabir. The house of the respondent is very near that of the deceased. On the date of occurrence one of the hens of the deceased was found missing in the evening. The deceased therefore raised a hulla over it and declared that he who had taken his hen should return it immediately. That night while the deceased was sleeping on his outer verandah, there was pelting of stones inside his house. The deceased got up, raised an alaram and went towards the backyard of his house to find out who the culprit was. His son P. W. 1 and the latter's maternal uncle P. W. 10 Fagu Sisa who were sleeping in a nearby cottage also got up and proceeded towards the backyard of the house of the deceased. As they were so proceeding they heard the the deceased shouting "(MARI GALI). No sooner had P. W. 1 heard his father saying so he reached the spot and found the accused -respondent assaulting the deceased with a Tangia on the latter's head as a result of which the deceased fell down with bleeding injuries. P W. 1 caught hold of the accused and as the two were struggling with each other. P. W. 10 snatched away the Tangia M. O. 1 from the accused, who immediately thereafter ran away from the spot. Meanwhile, many other persons of the neighbourhood had reached the spot one of whom P. W. 9 who happened to come to the spot earlier saw also a part of the occurrence. The deceased who had received the bleeding injuries was removed to his verandah. That night, a Panchayat was convened in the village to which the accused was called and he came and confessed having assaulted the deceased with the Tangia. Early next morning P. W. 1 left for the Police Station where he lodged the F. I. R. Ext. 11 at 11 a.m. and also produced the Tangia M. O. I which had been recovered from the accused. The very same evening the Sub -Inspector of Police P. W. 16 came to the village by which time the deceased was already dead. Investigation was taken up and the dead body of Gollari Dasarathi was sent for post -mortem examination. The doctor who conducted the autopsy found two injuries on the person of the deceased namely,

(2.) IT may be stated here that shortly before P. W. 1 lodged the F. I. R., the accused himself had gone to the Police Station and complained to the Sub -Inspector of Police that he was assaulted on the previous night by Gollari Dasarathi. The S. I. made a Station Diary entry Ext. 12 and sent the accused to the Medical Officer P. W. 8 for examination. The latter on examining the accused had found the following injuries;

(3.) IN the Court of the Committing Magistrate, during his examination under Section 342, Criminal Procedure Code, the accused had stated that as he was assaulted by Gollari Dasarathi, he in self -defence assaulted him with an axe. In the Court of Session, however he stated that he was assaulted with a Thenga on his head by the deceased as a result of which he fell down unconscious and that he did not assault the deceased.