STATE OF ORISSA Vs. RABINDRA KUMAR SAHU

JUDGEMENT

(1.) THE Respondent having been acquitted of the charges for commission of offences under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code (in short 'I.P.C.) by the Judgment and order passed in Sessions Case No. 75 of 2003 by the learned Sessions Judge, Ganjam -Gajapati, Berhampur, the State has preferred this appeal.

(2.) ALLEGATION in the case relates to the occurrence in course of which murder of deceased Laxmi Das was committed. Prosecution case is that on 13.09.1999, which was the day of celebration of 'Ganesh Chaturthi', at about 6.15 P.M., the deceased's brother, informant P.W. 2 Rajendra Das was proceeding to see the Ganesh Medha, i.e., decorative pandal of Lord Ganesh, from Bada Sahi towards Badhei Sahi Gorji (Lane) of the occurrence village Lochapoda. He found the deceased coming from the side of Ganesh Bazar Sahi. In between the house of D. Laxman Patro and Chintadu Raghuram Patro, on the road itself, co -accused Kalia pulled the deceased's leg as a result of which he fell down. Thereafter, it is alleged, the Respondent as well as co -accused Kalia @ Harikrishna, Biswanath @ Bisu @ Bisua, Dandapani and Dillip assaulted the deceased with deadly weapons. It is alleged that Respondent Rabindra at first dealt a blow by means of a Kati on the deceased's neck. Thereafter, co -accused Biswanath dealt a sword blow on the deceased's neck. It is further alleged that co -accused Dandapani instigated by shouting "SALAKU SESHA KARIDIA AAU CHHADA NAHIN". Seeing the occurrence, the informant raised alarm upon which all the five accused persons ran away towards Mill Sahi. Deceased, with injuries on his person, ran towards Bada Sahi where he fell down in front of the house of T. Kalia Patra. The further case of the prosecution is that one Balaram Patra and another Rajendra Kumar Patra' were present near the place of occurrence. The informant shifted the deceased in a trolly rickshaw to M.K.C.G. Medical College and Hospital, Berhampur. However, on the way the deceased succumbed to the injuries. It is also alleged by the prosecution that in the month of preceding June, the accused persons had attacked, assaulted and threatened to kill the deceased, and that in the afternoon on the date of occurrence also there was verbal altercations between co -accused Dillip and the deceased when the deceased and others were playing volley ball in the playground near Ganesh Bazar. On the basis of written report Ext.2 submitted by P.W.2, S.I. of Police P.W.6 Madhusudan Mallik registered the case and took up investigation. P.W. 6 also appears to have received, the Casualty Memo Ext. 'A' forwarded by D.W. 1 Dr. M.K. Panigrahi from M.K.C.G. Medical College and Hospital. In course of investigation, witnesses were examined, dead body of the deceased was subjected to inquest and post mortem examination, spot was visited and seizures were effected. S.I. of Police P.W. 5 Bishnupada Mohanta took charge of investigation on 1.11.1999 and S.I. of Police Ashok Kumar Parida took charge of investigation on 25.03.2000. On completion of investigation, charge sheet was submitted against the Respondent and the above said co -accused persons, for commission of offences under Sections 147, 148 and 302 read with Section 149 I.P.C showing the Respondent as absconder. The co -accused persons appear to have been tried analogously in two trials bearing S.C. Nos. 14 of 2001 and 194 of 2002. However, the present Respondent faced separate trial culminating in the impugned Judgment and order as stated supra.

(3.) PROSECUTION examined six witnesses, P.Ws. 1 to 6, apart from relying upon the documents marked Exts. 1 to 6. P.Ws. 2, 5, and 6 as well as D.W.1 have already been introduced in course of the narration of the prosecution case. P.W.3 Kailash Sahu was examined as another eyewitness. P.W.4 Dr. S.N. Mohanty conducted postmortem examination over the dead body of the deceased. Police Constable P.W.1 Rama Chandra Mohanty accompanied the dead body of the deceased for post mortem examination to and collected wearing apparels of the deceased from the Hospital. Defence examined D.W.1 only and relied upon documents marked Ext. 'A'. On analysis of the evidence on record, learned trial Court held the two eye -witnesses P.Ws. 2 and 3 to be not only inimically disposed towards the accused persons but also to be chance witnesses liable to be subjected to close scrutiny of their evidence. On such scrutiny, learned trial Court found their evidence to be contradictory and inconsistent with regard to the exact spot of assault on the deceased. In coming to such conclusion, learned trial Court also relied upon the evidence of D.W.1 and disbelieved the presence of the two eye -witnesses at the spot and consequently held the Respondent to be entitled to be acquitted.