BUDHU TAPPO Vs. STATE OF ORISSA

JUDGEMENT

(1.) JUDGMENT of conviction under Section 302, I.P.C. pronounced by learned Additional Sessions Judge, Sambalpur on 30.03.1996 in Sessions No.85/31 of 1995 is under challenge by the convicted accused, who preferred the appeal from the jail.

(2.) PROSECUTION case is that, believing Radhi Tiga, the deceased (hereinafter referred to as such) to be a witch and practicing witchcraft, six other accused persons under the leadership of accused -appellant Budhu Tappo on 04.11.1994 at about 10 p.m. assaulted the deceased. The solitary eye -witness to part of the occurrence is Phulamani Tiga (P.W.1), daughter of the deceased. According to her version, accused Budhu Tappo came to their house at about 10 p.m. on 04.11.1994 and alleged the deceased to be a witch, she denied to that, and then accused Budhu Tappo threatened to do away with her. The deceased followed by P.W.1 came to their courtyard. Accused Budhu called the co -accused persons by name and the remaining six accused persons being armed with 'lathi and sticks came upon the spot. All the accused persons including accused -appellant assaulted the deceased, as a result of which she fell down. Then accused -appellant pressed the neck of the deceased. P.W.1 pleaded for mercy and intervened to separate, but she was obstructed by accused Mansit (acquitted) and then because of the slap given to her head by the appellant,she fell down. She ran away from the spot to escape from the clutches of the accused persons, went to the neighboring village Jaraikela to the house of his sworn friend ('Mita) Puspanjali (P.W.2). She narrated the incident to Bula (P.W.3), Dhiren (P.W. 4), parents of puspanjali and the other inmates including Maricha (P.W.10) - grandfather of P.W.2. Along with them and others she returned to her house and they discovered that deceased was lying dead. Then they returned to village Jaraikela and thereafter they came to Deogarh Police Station on a truck arranged by a hotel owner (P.W.11). On receipt of the information, F.I.R. (Ext.1) was prepared and P.W.14 (Investigating Officer) took up the investigation. In course of investigation, he arrested the accused, seized the incriminating articles, sent the dead body for post -mortem examination after inquest and also recorded statements of witnesses besides sending P.W.1 for examination by doctor relating to her injuries. The Investigating Officer also sent the witnesses to the Court of the Magistrate for recording their statements under Section 164, Cr.P.C. Some of such statements have been marked as Exts.2, 3, 6, 7, 9, 10, 15 and 20. The Post -mortem Report is Ext.12 and the Opinion Report of the doctor (P.W.13) who conducted the post -mortem examination is Ext.13 relating to possibility of different injuries found on the dead body by the weapons of offence M.Os. I, II and III. Exts.5, 8 and 16 are the Seizure Lists. Ext.11 is the Injury Certificate granted by the Medical Officer (P.W.12) in respect of the injuries found on the knee of P.W.1. M.O. -I is a 'lathi, M.O. - II is a piece of stone and M.O. - III is a 'Budhia (axe). Accused persons took the plea of denial but did not adduce any defence evidence except cross -examining the prosecution witnesses.

(3.) SO far as the charge under Section 323/34, I.P.C. for causing simple hurt to P.W.1 is concerned, learned Addl.Sessions Judge found discrepancy in the statement in the F.I.R., evidence of P.W.1 and the doctor (P.W.12) regarding the limb on which injury was inflicted and accordingly acquitted all the accused persons from the charge under Section 323/34, I.P.C.