STATE Vs. DHUSA KANDY

JUDGEMENT

(1.) THE three respondents stood trial under Section 380 and Section 302/34, Penal Codes and were acquitted. The State has filed this appeal against the order of acquittal.

(2.) THE prosecution case may be stated in brief. Admittedly the accused had some land disputes with the deceased. On 15 -1 -65 the accused came to the house of the deceased and tried to remove paddy sheaves. The deceased was aroused from sleep. While accused No. 1 was removing a paddy sheave, the deceased caught hold of it. Accused No. 1 dragged him. Accused No. 2 gave the second (first - Ed.) stroke on the head. Accused No. 1 then gate the second stroke, and when the deceased fell down with his face upwards accused No. 3 gave the third stroke. The deceased died instantaneously on the spot. Kasi Kandy (since deceased) a son of the deceased, lodged the F.I.R. on 16 -1 -65 at 2 to 3 P.M. the police station being at a distance of 22 miles from the village. After necessary investigation a charge -sheet was submitted against the accused persons. The defence is one of complate denial. Two defence witnesses were examined in support of a story that the sons of the deceased killed him while be was almost on the point of death arising out of a severe ailment. The learned Sessions Judge held that the death was homicidal and that the defence story was fantastic. He however acquitted the accused persons on finding that the prosecution failed to establish the case beyond reasonable doubt.

(3.) IN this case we do not get any corroboration. The positive story of the prosecution is that some bundles of paddy were removed from the house of the deceased by the accused, and there were trails of paddy falling in between. The I. O. did not find any trails of paddy falling on the way. He did not also seize any paddy sheaves from the house of the accused or from any place under the control of the accused. The lathis used as weapons of offence have not been recovered. There is therefore no independent corroboration of these witnesses. Added to this, there is some substantial discrepancy in the evidence of these witnesses. For instance, P.W. 2 states that by the time be arrived, other eye -witnesses excepting the two sons of the deceased had not come, and all of them came after the deceased fell down. This knocks the very bottom of the prosecution story. Similarly be says that the deceased fell down after accused No. 3 gave a stroke with his lathi. This is contrary to the prosecution story of the remaining witnesses that accused no. 3 gave a stroke after the deceased fall down with his face upwards. There is thus material discrepancy as to the time when different witnesses arrived at the spot and as to the manner of assault.