STATE OF ORISSA Vs. BALARAM BAGH

JUDGEMENT

(1.) This is an appeal under section 378 of the Code of Criminal Procedure preferred by the State of Orissa challenging the impugned judgment and order dated 05.05.1994 passed by the learned Sessions Judge, Sambalpur in S.T. Case No.283 of 1993 in acquitting the respondent Balaram Bagh of the charges under sections 302 and 307 of the Indian Penal Code for committing murder of Ghasiram Karta (hereafter 'the deceased') and attempting to commit murder of Kasiram Karta (P.W.2) on 18.07.1993 at about 6 p.m. at Harijanpara, Kuchinda in the district of Sambalpur.

(2.) On 18.7.1993 P.W.1 Kamala Karta, wife of Kasiram Karta (P.W.2) appeared before the Officer in charge of Kuchinda Police Station namely Sri Askhya Kumar Behera (P.W.9) and orally reported about the incident. P.W.9 reduced the oral information to writing and drew up the First Information Report (Ext.6) and accordingly, Kuchinda P.S. Case No. 57 of 1993 was registered for the offence under section 307 of the Indian Penal Code. As per the First Information Report, it is the prosecution case that P.W.2 and the deceased, who was his elder brother were staying at Harijanpara since last thirty years after constructing two houses. On the eastern side of their houses, the respondent was staying constructing one house and there was a passage in between their houses and that of the respondent which was used by the villagers to approach the embankment. On 18.07.1993 which was a Sunday, the respondent put a fence on the passage without asking anybody as a result of which villagers faced inconvenience. It is the further prosecution case as per the First Information Report that after returning from her work, P.W.1 asked the respondent to remove the fence for easy access of the villagers on that road but the respondent got enraged and challenged the informant. At about 6 O'clock in the evening, the deceased returned from the bus stand and tried to remove the fence put by the respondent for which the respondent got angry and brought a folded iron rod from inside the house and dealt a blow on the head of the deceased. The deceased shouted sustaining bleeding injury on the head and thereafter, the respondent dealt two to three further blows to the deceased. Looking at the assault on the deceased, when P.W.2 came to save him, he was also assaulted by the respondent by the iron rod as a result of which he also sustained injuries on the knee and head. The incident was witnessed by a number of persons including the family members of the informant. The deceased as well as injured were brought to the Police Station and FIR was lodged.

(3.) P.W.9 took up investigation of the case, examined the witnesses and sent the deceased Ghasiram Karta and the injured Kasiram Karta (P.W.2) for medical examination to Kuchinda Hospital on police requisitions. The I.O. also made a prayer for recording the dying declaration of the deceased as his condition was quite alarming. The I.O. visited the place of occurrence and collected blood stained earth, sample earth and Amari stick stained with blood from the spot and prepared seizure list Ext.8 in presence of the witnesses. He also arrested the respondent and basing on his disclosure statement, he seized one iron rod (M.O.I) stained with blood on being led by the respondent under seizure list Ext.5/2. On 19.07.1993 the investigating officer received information that the deceased succumbed to the injuries at about 8.20 p.m. on that day and accordingly the case turned to one under sections 302 and 307 of the Indian Penal Code. He was informed by Burla Police that adequate steps have been taken at their level for conducting inquest and autopsy examination. P.W.10 Bibhuti Bhusan Sahoo who was working as S.I. of Police attached to Burla Police Station conducted inquest over the dead body of the deceased at V.S.S. Medical College and Hospital, Burla in presence of the witnesses and prepared inquest report Ext.16 and sent the dead body to the F.M.T. Department for post mortem examination under dead body challan Ext.17. P.W.11 Dr. Punyansu Mohanty conducted autopsy over the dead body of the deceased on 20.07.1993 and opined the cause of death was due to Coma as a result of injury to the head. The I.O. again proceeded to the spot on 20.07.1993 and prepared a sketch map of the spot and sent requisition to the doctor at Kuchinda to collect nail clippings and scrapings of the respondent. The respondent was then forwarded to Court. On 21.07.1993 the I.O. seized blood stained wearing apparels belonging to the deceased under seizure list Ext.11. He received the injury reports of the deceased and P.W.2 from the doctor of Kuchinda Hospital. He produced the seized iron rod (M.O.I) before the doctor to ascertain regarding possibility of the injuries by the said weapon. On 11.09.1993 the I.O. received supplementary case diary, inquest report, dead body challan and post mortem examination report from Burla Police Station. On 28.09.1993 he sent all the seized incriminating materials to the R.F.S.L., Ainthapalli for chemical examination through S.D.J.M., Kuchinda and received the chemical examination report Ext.14. On 13.10.1993 on completion of investigation, he submitted charge sheet under sections 302 and 307 of the Indian Penal Code.