DHOBA @ BRINDABEN MEHER Vs. STATE OF ORISSA

JUDGEMENT

(1.) DHOBA @ Brondaban Meher and Bhubaneswar have filed this appeal against the order of conviction and sentence passed against them by the court of Sessions Judge, Bolangir, in Sessions Case No. 9 of 1989. During the pendency of the appeal, Dhoba, appellant No. 1, died and, therefore, the appeal to that extent has abated.

(2.) BRIEFLY stated, the prosecution case is that on 2.11.1988 accused Bhubaneswar had gone to the house of deceased Ketaki and had requested her to help him in collecting sweet potatoes from his field. Ketaki refused to go to the field of Bhubaneswar on the ground that she was not feeling well on that day. Bhubaneswar again opproached her after about an hour and made the same request. This time, Ketaki agreed and went to the field of Bhubaneswar along with Kasturi, P.W.4. They worked in the field till about 4.00 P.M. As Ketaki and Kasturi were thirsty, they went to the nearby rivulet known as ˜Jamjore for drinking water. After they returned to the field, Bhubaneswar assaulted Ketaki with a spade and gave some blows. Accused Dhobaalso came there soon thereafter and started assaulting Ketaki. On thus being assaulted, Ketaki raised shouts "Marigali ho bua" (oh father, I am killed). When this incident took place, one Jahna was also present in the field. After Ketaki had fallen down, she was dragged by the accused and her body was thrown under the bushes near a Mahula tree near the rivulet. On Janak found the body of Ketaki lying there and informed the daughter of Ketaki that her mother was lying injured condition at that place. Thereafter, Prema, the daughter of Ketaki, went to the field first and then to the place where her mother was lying. But, by that time she had already died. While she was there, accused Dhoba came there with a spade with an intention to burry the dead body of Ketaki. Prema objected to the so The and snatched away the spade from accused Dhoba. Thereafter, Prema along with other villagers went to Larambha outpost and reached there at about 9.00 p.m. and informed the Assistant Sub -Inspector of Police Krupasindhu Rout, who was in charge of the outpost, regarding the incident. He put down the complaint of Prema in writing and sent it to Patnagarh police -station where it was received by S.I.S.K. Panigrahi, who recorded the F.I.R. and on the basis thereof started investigation. Two spades, which according to the prosecution, were used for assaulting the deceased, were seized by the police. One was seized from the spot and one was produced by Prema who had earlier snatched away the Same from the hands of accused Dhoba. So far as the spade which was found from the spot is concerned, it was not sent for serological test as no sufficient blood stains were found on the same. After the investigation was over, both the accused were charge -sheeted for the offences punishable under sections 302 and 201, both read with section 34 of the Indian Penal Code.

(3.) THE learned Sessions Judge held that though it was not possible to rule out the possibility of tutoring P.W. 4 Kasturi, who was a child witness, her evidence deserved to be accepted as the same was corroborated by the evidence of P.W. 5 Laxmidhar and P.W. 6 Dayasagar. Appreciating the evidence of P.Ws. 5 and 6, the learned Sessions Judge held that they were not chance witnesses and their evidence deserved to be accepted as there were no material omissions or contradictions in their evidence. As regards the three defence witnesses, who were examined by the accused, the learned Sessions Judge held that the evidence of D.Ws. 1 and 2 was not at all helpful to the accused. In so far as the evidence of D.W.3 is concerned that was not regarded as sufficient to create doubt regarding Kasturi having accompanied Ketaki to the field on the day of incident. As regards non -examination of the eye - witness Jahna, the learned Sessions Judge ob. served that his non - examination was not fatal to the prosecution for the simple reason that other eye - witnesses have been examined. Thus, relying upon the evidence of P.Ws. 4,