STATE OF ORISSA Vs. MATTA APPAYA PATRO

JUDGEMENT

(1.) The State of Orissa, in this Appeal, call in question the judgment of acquittal dtd. 19/12/1997 passed by the learned Second Additional Sessions Judge, Berhampur in Sessions Case No.45 of 1996 (S.C. No.256/96 [GDC]) arising out of G.R. Case No.1156 of 1995 corresponding to Golanthara P.S. Case No.147 of 1995 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Berhampur. The Respondents, being arraigned as accused persons, faced the trial for commission of the offences under Sec. 148/302/149 of the IPC and Sec. 25 of the Arms Act read with Sec. 149 of the IPC. The Trial Court, having gone through the evidence let in by the prosecution by examining seven witnesses as also the solitary defence witness and on perusal of the documents admitted in evidence from the side of the prosecution (Exts.1 to 21), has finally come to the conclusion that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubt. This is now under challenge in this Appeal by the State. It is pertinent to mention here that during pendency of this Appeal, the Appellant No.5, namely, Datti Sima Patro, having died; this Appeal has abated as against him. So, now this Appeal is confined to Appellant Nos.1 to 4 and 6.

(2.) Prosecution Case:- On 25/12/1995, Susanta Bisoyi (Informant-P.W.3) had gone to the house of Bairagi Patra for discussion with regard to their brick kiln. Susanta met Bairagi just at the approach of the Village when Bairagi and Poteya (P.W.5) were coming on a cycle from the village side. Then all the three went to the house of Gokarneswar Rath and from there to the brick kiln. Gokarneswar remained at the brick kiln whereas Santosh (Informant), Bairagi (deceased) and Poteya (P.W.5) to Konisi Hat (market) on two cycles. Susanta was on one cycle whereas that Bairagi (deceased) and Poteya (P.W.5) were on another. Susanta (Informant-P.W.3) was going ahead of them. It was around 8.30 p.m., they reached near the cinema hall situated near Konini Hat and when Susanta (Informant-P.W.3) was at a distance of ten feet ahead of Bairagi (deceased) and Poteya (P.W.5), he heard the cry of Bairagi (deceased). So, he stopped his cycle and when he looked back, he found Bairagi (deceased) on the ground and his cycle was lying near him and that Poteya (P.W.5), who was coming with Bairagi (deceased) was seen to be running away from that place. Susanta (Informant-P.W.3) then saw accused Karama dealing blows upon Bairagi (deceased) by means of a sword and other accused persons, being armed with Khanda Kati, were also assaulting Bairagi (deceased). It is further stated that at that time, four to five other persons, being armed with Khanda Kati were standing nearby. Susanta (Informant-P.W.3), out of fear went to Konisi Hat on his cycle and therefrom, he returned to Ambapur via another road. He informed the incident to the wife and mother of Bairagi (deceased) as well as Gokarneswar and others. Thereafter, with the wife and mother of Bairagi (deceased), Gokarneswar and others, he went to the spot. It was then found that Bairagi (deceased) was lying dead on the ground with injuries on his legs, hands and head. The left palm of Bairagi (deceased) had been completely cut and removed and was not traced nearby. Susanta then went to Golanthara P.S. and lodged a written report with the Sub-Inspector (S.I.) of Police (P.W.7) Golanthara P.S., who, in the absence of Officer-in-Charge of said P.S., treated the same as FIR (Ext.3) and upon registration of the criminal case, took up the investigation.

(3.) In course of investigation, the Investigating Officer (I.O.-P.W.7) examined the Informant (P.W.3) and recorded his statement under Sec. 161 of Cr.P.C. Having visited the spot, the I.O. (P.W.7) prepared the spot map (Ext.10). He (P.W.7) then held the inquest over the dead body of the deceased and prepared the report (Ext.4) and sent the same for post mortem examination by issuing necessary requisition (Ext.11). On the same day, he (P.W.7) seized the bloodstained earth and sample earth under the seizure list (Ext.12). The custody remand request of the I.O. (P.W.7), being allowed by the S.D.J.M., Berhampur, he (P.W.7) took the custody of the accused persons. During interrogation, pursuant to the statements of accused persons, the I.O. (P.W.7) recovered Khanda Kati, Sword, Cycle, Tangi, Parusuram Tangi and Bamboo Lathi. The seized incriminating articles were sent for chemical examination through Court. On 6/4/1996, the I.O. (P.W.7) submitted the Final Form placing these accused to face the Trial for commission of the offences.