STATE OF ORISSA Vs. BIPIN BARAL

JUDGEMENT

(1.) GOVERNMENT Appeal No. 50 of 1996 and Criminal Revision No. 54 of 1996 are directed against the judgment and order dated 26th October,1995 passed by the learned Second Addl. Sessions Judge, Bhubaneswar in S.T. No. 11/142 of 1995 and S.T. Case No. 15/280 of 1995 acquitting all the accused persons therein of the charge under Sections 302 and 34 of the Indian Penal Code (in short 'IPC). Criminal Revision No. 176 of 1997 has been filed by the informant challenging the judgment and order passed by the learned Second Addl. Sessions Judge, Bhubaneswar in S.T. Case No.13/61 of 1996 acquitting opposite party therein of the charge under Sections 302 and 34 IPC. Both the revisions have been filed by the informant against the judgment acquitting four accused persons of the charge and the Government Appeal has been filed in respect of three out of the four accused persons, who were acquitted by the trial Court. Since all the cases arise out of the same incident, they were tagged together for the purpose of hearing.

(2.) THE case of the prosecution is that on 6.1.1994 at about 8.30 A.M. in the morning when the deceased and his son P.W.11 were going to their land for cultivation and the deceased was proceeding to his field on the river embankment followed by his son at a little distance behind him, at that time four accused persons came running from the opposite direction and started assaulting the deceased. It is alleged that accused Bula Swain and Sita Baral were armed with Farsa each, accused Bipin Baral was armed with a Bhujali and accused Daka Jena was armed with a Sword and they assaulted the deceased by means of the weapons they were holding. The deceased fell down on the road but the accused persons continued to assault him. P.W.11, who was following the deceased, ran away from the place and informed his paternal uncle -P.W.8. P.W.11 thereafter again came to the spot and found his father (deceased) lying dead with serious bleeding injuries on his legs, face, neck, head and hands. It is also the case of the prosecution that there was prior enmity between the deceased and accused persons and because of such enmity, the offence was committed. P.W.11 lodged the F.I.R., on the basis of which investigation was taken up and on its completion charge sheet was filed against all the four accused persons for commission of offence under Sections 302 and 34 IPC. Initially, Sita Baral, Bula Swain and Dak Jena absconded for which the case was spilt up and subsequently after arrest of Bula Swain and Dak Jena, the case was committed to the Court of Sessions for trial. So far as accused Sita Baral is concerned, he was arrested at the latter stage and his case was tried separately.

(3.) OUT of twelve witnesses examined by the prosecution P.W.11 is the informant and is son of the deceased. P.Ws.4,6,7,9,10 and 12 are eyewitnesses to the occurrence and P.Ws.1 and 8 are the post -occurrence witnesses. P.W.5 is a witness to the extra judicial confession made by one of the accused and P.W.2 is the Medical Officer, who conducted the postmortem examination. P.W.3 is the I.O. The trial Court entertained a doubt solely on the ground that no weapon of offence had been seized from the possession of the accused persons an, accordingly, extended the benefit of doubt to all the accused persons in both the impugned judgments.