STATE OF ORISSA Vs. KAIBALYA DEHURY AND ORS.

JUDGEMENT

(1.) The judgment dated 4th November, 1995 passed by Learned District & Sessions Judge, Dhenkanal, Angul, acquitting the accused persons from the charges under Ss. 302 read with Sec. 34 of the Indian Penal Code in S.T. Case No. 120 -D/1991 is assailed by the State of Orissa in this Government Appeal.

(2.) The incident took place way back in the year 1991. It is alleged that on 28.3.1991 Kumar Dehury along with his six children, through two wives was taking dinner. His second wife complained that due to non -availability of curry her children were crying & not able to eat rice. She held Kumar Dehury responsible for the said misfortune. Retaliating to the said statement her husband (Kumar Dehury), it is alleged, stated that no children will die if curry is not served with rice. In course of interrogation, It is stated, Kumar Dehury said that his children will only die if some one practice witchcraft. Hearing the said allegation the accused persons, rushed into the house & questioned Kumar Dehury as to who was practicing witchcraft. Being afraid Kunjei Dehuri (P.W.4), the first wife of Kumar Dehury rushed to the Kamakhyanagar Police Station to report against the accused persons who had forcibly entered into the house. In the meanwhile, it is alleged, the accused persons severely assaulted Kumar Dehury with lathis. After being assaulted Kumar Dehury left the house along with his two sons with an intention to report the matter in the Police Station. On the way he felt thirsty & wanted some water to drink. He sent his two sons to fetch water from his house. When his two sons returned to the spot with water they did not find Kumar Dehury. They reported the matter to their mother, who in turn conveyed the same to the neighbours & wanted help to search her husband, but then as it was dark by then & nobody ventured to go into the forest. On the next day morning, it is alleged, the informant & his children went & found the dead body of Kumar Dehury near a tree. Thereafter, they went & lodged & F.I.R. at Kamakhyanagar Police Station.

(3.) On the basis of said report the Investigating Officer visited the spot, recorded the statement of different witnesses, took steps to conduct the inquest & sent the dead body for post mortem. After completion of the investigation, charge sheet was submitted in G.R. Case No. 88/1991 in the Court of S.D.J.M.. Kamakhyanagar. Learned S.D.J.M. after perusing the police papers & on being satisfied that prima facie case was made out, took cognizance of the offence & committed the case to the Court of Session for trial.