STATE Vs. DILIP KUMAR MOHANTY

JUDGEMENT

(1.) HEARD .

(2.) ORDER of acquittal vide impugned judgment dated 9.2.1988 in S.T. No. 31/126 of 1986 of the Court of Asst. Sessions Judge, Nayagarh his under challenge.

(3.) IN course of trial, as many as 9 witnesses were examined. Out of them, P.W. No.1, Surendra Singh, P.W. No.2, Radhashyam Maharaj, P.W. No.7, Bijoy Kumar Sahu and P.W. No.8, Sukanta Kishore Senapati were described as eye witnesses to the occurrence. P.W. No. 1 in his examination in chief though stated about presence of accused Gula @ Dipak Mohanty in the gathering holding a sword and P.W. No.7 having sustained some bleeding injuries on the right cheek, but he has not stated anything about the occurrence of assault. P.W. No.2 narrated that incident by stating that on arrival of the accused persons in the vehicle, he heard the sound of cry for help and immediately rushed to the spot which was about 150 cubits away from his shop. At the spot he saw P.W. No.7 was holding his right cheek and crying. All the three accused persons were present there, accused Dipak being holding a sword standing there and in his (P.W. No.2) presence accused Dipak dealt a sword blow which the injured warded of with a iron plate (used as the shutter of the doors) and that the other accused persons were intimidating and instigating the informant to kill him. He also saw about 50 to 60 persons came over the spot and on seeing them all the accused persons fled away. In the cross examination he stated that at the time of his arrival about 50 to 60 persons were standing at the verandah of the informant and 100 to 150 persons were standing on the road. P.W. No.7 narrated the incident by stating about the manner of assault and the reason leading to the occurrence. He added that besides from the electric bulb, the area was also lighted by the petromax light in some nearby shops. P.W. No.8 was having a Dry Fish shop about 100 cubits behind Radio shop. On hearing the cry for help raised by P.W. No.7, he came out to the spot and saw accused Gula dealt two sword blows and each of them being awarded off by P.W. No.7 and by then P.W. No.7 had put his hand on his right eye and shouting 'Marigali Marigali. Taking note of the contradictions in such ocular evidence of the aforesaid prosecution witnesses and the surrounding circumstances emerging from the other evidence on record trial Court granted benefit of doubt to the accused/respondents. Learned Addl. Govt. Advocate places the entire evidence on record so also the findings recorded by the trial Court and thereafter argues that the contradictions are non -consequential inasmuch as on re -narration of event that cannot be a parrot like statement and, therefore, the findings recorded by the trial Court in support of order of acquittal is legally not sustainable.