PARSU GADABA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal from jail was preferred by the appellant challenging to the order of conviction and sentence for the offence under Section 302, Indian Penal Code imposed against him by Learned Sessions Judge, Koraput at Jeypore in Sessions Case No. 258 of 1994 as per the impugned judgment delivered on 20th September, 1996.

(2.) IN substance the case of the prosecution is that the deceased owned and run a Tea Stall where he was also selling tiffin. On 17.4.1994 the fateful day, Appellant came and took tea and tiffin but did not pay for the same. That resulted in an altercation between the accused and the deceased. Sometimes thereafter, when the deceased left the Tea Stall to proceed to the forest to collect fire wood, the accused appeared with a Thenga (M.O. I) on the village street and dealt one blow to the head of the deceased. On receipt of that blow deceased fell down sustaining bleeding injury on the head. On seeing this P.W. No. 1 his niece and Ors. including P.W. Nos. 2 and 4 the co -villagers rushed to the spot. Accused fled away from the spot after inflicting the blow on the head of the deceased. In such injured condition, deceased was removed to Thentulikhunti Community Health Centre. The matter was reported in the local Police Station at Thentulikhunti and on the basis of that report, a case under Section 307, Indian Penal Code was registered. Deceased died in the Community Health Centre in the evening of 17.4.1994, therefore, investigation was taken up treating the case to be one under Section 302, Indian Penal Code. In course of the investigation, on 18.4.1994 Appellant was arrested and on 19.4.1994 he was forwarded to the judicial custody. After completing a routine investigation charge -sheet was submitted against the Appellant for the offence under Section 302, Indian Penal Code. Appellant was committed to the Court of Sessions and on 30.3.1995 charge was framed under Section 302, Indian Penal Code. In course of trial, out of the charge -sheeted witnesses, prosecution examined nine witnesses and relied on various documents marked Exhibits 1 to 26 and the M. Os. like the weapon of offence, M.O. I and the wearing apparels of the deceased and accused M. Os. II to VI. Dr. Shantanu Kumar Das (P.W. 5) was the treating physician and or. Bipra Charan Bhuyan (P.W. 6) conducted autopsy on the dead body of the deceased. Prosecution relied on the evidence of P.W. Nos. 1, 2 and 4 as the eye -witnesses to the occurrence. P.W. No. 9 was the Investigating Officer and rest of the witnesses including the wife of the deceased (P.W. No. 7) were all post -occurrence witnesses. Ext. 8 is the Inquest Report, Ext. 4 is the post -mortem report and Ext. 6 is the spot -map.

(3.) MISS . D. Mohapatra, Learned Counsel appearing for the Appellant, after placing the evidence on record and the findings recorded by the Trial Court, argues that evidence of P.W. Nos. 1, 2 and 4 are not acceptable as eye -witnesses to the occurrence because of the prevaricating statements made by them creating a doubtful circumstance about their presence at or near the spot to witness the occurrence of assault and therefore, the Appellant is entitled to benefit of doubt. On perusal of the evidence of the said witnesses, and the findings recorded by the Trial Court on a similar contention, we do not find any merit in that argument inasmuch as, evidence of the said three witnesses are consistent and corroborative relating to their presence near about the spot of occurrence by the time blow was dealt by the Appellant on the deceased. Evidence of P.W. No. 1 that the villagers had gone to collect the fuel wood from the forest is not consequential inasmuch as in Paragraph 3 of her cross -examination she has stated that by the time of assault, some villagers had already returned after collecting the fuel wood.