STATE OF ORISSA Vs. SANTOSH MAJHI

JUDGEMENT

(1.) ORDER of acquittal in Sessions Trial No. 173 of 1986 of the Court of Sessions Judge, Sundargarh delivered on 16.9.1987 is under challenge in this Government Appeal. Though accused/respondent faced the charge for the offence under Section 302, Indian Penal Code and claimed for trial by denying to the charge, ultimately the Trial Court acquitted him. On the application filed by the State, leave to appeal was granted and this Government Appeal was admitted for examining correctness or otherwise of the impugned order of acquittal.

(2.) PROSECUTION case is that on 19.4.1986 at about 9 a.m. P.W. 3, a co -villager of the parties while returning from the "Munda' (tank) after taking a bath, heard a sound and turned back and saw the scuffle between the accused and the deceased. On the way to her house, P.W. 3 saw P.W. 1 who is the uncle of the deceased and intimated him about that occurrence. On getting that information, P.W. 1 rushed towards the spot and on seeing him, accused went away from that place. P.W. 1 arrived at the spot, found his nephew Dubaraj (deceased) lying with bleeding injuries and, according to P.W. 1, the deceased volunteered statement that he was assaulted and injured by the accused. In the process of rushing to the spot, P.W. 1 also shouted for help and that P.W. 2 arrived at the spot and the deceased also made a similarly dying declaration implicating the accused. Thereafter the deceased was brought to the hospital and there he was found dead and declared so. In the meantime the Investigating Officer (P.W. 11) getting telephonic information had arrived at the occurrence village, accepted the F.I.R. and undertook investigation. In course of that investigation, on that day he gathered reliable information about whereabouts of the accused and deputed an A.S.I. of Police and a Police Havildar to arrest the accused. In the meantime he continued with the routine investigation. After the accused was brought before him, in course of interrogation he made a statement leading to discovery of the axe (M.O. I) which is said to be weapon of offence. In course of investigation P.W. 11 also recorded the statement of witnesses, who said that accused made extra judicial confession before them regarding the crime. On police requisition, the Doctor (P.W. 5) conducted post -mortem examination on the dead body of the deceased and reported that the deceased suffered homicidal death. After his arrest since accused was having injuries on his person, the doctor (P.W. 7) examined him and submitted injury report. Prosecution attributed motive of the deceased having illicit relationship with the wife of the accused and that was the reason for the accused to do away with the deceased.

(3.) ON analysis of the aforesaid evidence, Learned Sessions Judge held that admittedly P.W. 3, by the date of occurrence, was hard of hearing and therefore her evidence that on hearing the sound of falling of a bicycle she looked back and noticed the scuffle between the accused and the deceased is improbable. Learned Sessions Judge noted that entire evidence of P.W. 3 does not indicate that the accused was assaulting the deceased by holding any weapon much less the axe (M.O. I). Trial Court further held that nature of the injury noted in the post -mortem report and evidence of P.W. 5 clearly reveals that the spinal chord was cut and therefore, according to Modi on Medical Jurisprudence, the deceased could not have been in a position to produce sound and from that angle if the evidence of P. Ws. 1 and 2 (the two witnesses to the dying declaration) is examined, then the natural discrepancy in their evidence comes to surface rendering them not credit worthy. For the said reason, Trial Court did not rely on the evidence of P. Ws. 1 and 2 relating to the dying declaration said to have been made by the deceased. So far as the injury on the body of the accused is concerned, Trial Court held that there is no evidence to prove that accused sustained that injury in course of a scuffle with the deceased. In respect of the seizure of M.O. I under Section 27 of the Evidence Act, Trial Court found that P.W. 9, an independent witness to the seizure, has not supported the prosecution and the other independent witness was withheld from the box, and therefore, the evidence of P.W. 9 that the axe (M.O. I) was lying on an open verandah takes away credibility of the evidence under Section 27 of the Indian Evidence Act. With respect to the extra judicial confession, Trial Court held that evidence of P.W. 8 is of no assistance if that is relied on, because, according to that statement accused stated that he killed "Palasu" and there is no evidence worth the name to connect the deceased Dubaraj with said Palasu. Apart from that, Trial Court also noted that the report from the chemical analysis and serology in no way connect the accused with the alleged crime and, under such circumstance, even if the deceased suffered a homicidal death, accused could not be held guilty for the same.