EDLA SIMACHALAM Vs. STATE OF ORISSA

JUDGEMENT

(1.) The Criminal Appeal as well as the revision arise from the judgment of the Additional Session Judge; Jeypore in S.C. No. 46 of 1987. All the appellants who were tried for the offences punishable under Sections 302/324/149 and Section 148 I.P.C. were acquitted of the charges under Section 302/149 but having been convicted for the offences under Sections 324/149 and Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for one year on each count, they assail their conviction in this appeal. The suo motu criminal revision was initiated by this Court to judge the legality or otherwise of the order of acquittal of the appellants of the charge under section 302, I.P.C. This common judgment will dispose of the above two cases.

(2.) Prosecution case is, on 15/6/1987 at 7 p.m. appellant Mallipilli Tavitayya and Talapu Polayya (hereinafter referred to as the deceased) quarreled over a previous domestic stifle. Talapu Tautaya (P.W. 1) intervened to pacify the quarrel. At that time appellant Talapu Chinna Jamayya rushed to the spot and assaulted P.W. 1 by means of an axe on his forehead causing incised bleeding injury. P.W. 1 and the deceased went to the hospital for treatment of P.W. 1. At about 10p.m. on the same day hey were returning from the hospital. On the way, it was alleged that all the appellants surrounded both of them and carried on an indiscriminate assault on the deceased causing injuries on his person including a lacerated one on his head which sub-sequently proved to be fatal and Tolapu Polayya died of that injury. It was further alleged that appellant Edla Simachalam assaulted P. W.1 on his right shoulder and appellant Kotu Gouri assaulted on his right thigh by means of lathis. The following morning i.e. 16/6/1987 at 9 a.m. P.W. 1 lodged the F.I.R. at the Rayagada Police Station. The deceased was sent for medical examination to the Rayagada hospital but for lack of accommodation in the said hospital he could not be treated as an indoor patient and came back to his house and died at about 8 p.m. The appellants in their 313 statements/denied the occurrence.

(3.) Mr. B. Panda, the learned counsel for the appellants strenuously urged that the prosecution having miserably failed to prove the case against the appellants, the learned Additional - Sessions Judge committed an error in recording the order of conviction which is liable to be set aside. Mr. Panda also pointed to various infirmities in the prosecution evidence. Mr. G. Mohanty, learned Additional Government Advocate, on the other-hand, submitted that when the learned Additional Sessions Judge believed the testimony of the prosecution witnesses and convicted the appellants of the charges under Sections 324/149 and section 148 I.P.C., there was no justification for him in acquitting the appellants of the charge under Section 302 read with section 149 I.P.C. He pressed for the reversal of the order of acquittal. The rival contentions need careful examination.