SAMA @ SAMAN TUDU Vs. STATE OF ORISSA

JUDGEMENT

(1.) LEARNED Addl. Sessions Judge, Jajpur delivered impugned judgment on 2.12.1998 in Sessions Trial No.616 of 1997/3 of 1998 convicting the appellant for the offence under Sections 302/201/34, IPC. The convicted accused persons thus preferred the appeal from the jail.

(2.) ACCORDING to the case of the prosecution, Luna Purty, the deceased, was working as a labourer in Ostapal Mines. On 12.10.1996 afternoon he went to his house and handed over his weekly wage to his family and came to Tisco Weekly market but did not return to his house that night. On the following day morning, his dead body was found lying under a bush near that market. Police took note of the aforesaid dead body and after F.I.R. was made P.W.1 undertook the investigation and submitted charge sheet against the accused persons for the aforesaid offences.

(3.) MR . Pani, learned Advocate appearing for the appellants argues that a conviction under Section 302 IPC can be defended by the prosecution provided they have proved homicidal death of the deceased and in this case the evidence of P.W.6 if read and believed then also that does not prove the case of homicidal death. Indeed on perusal of evidence of P.W.6, we find that, he deposed that in the evening of 12.10.1996 he found the three accused persons assaulting the deceased by dealing slaps and that dispute was relating to cock fight and several other persons were present besides the shopkeepers of the Tisco market. That scanty evidence does not prove about at what time the deceased received a stab injury and whether such stab injury is ante -mortem or post -mortem and what was the cause of the death. Since the post -mortem report is not available as evidence and the doctor was not examined, the prosecution has signally failed to prove that the deceased suffered homicidal death. Under such circumstance, the accused persons cannot be found guilty under Section 302 IPC. For that simple reason, the trial Court ought to have acquitted the accused persons instead of convicting them on a wrong reasoning that the accused persons did not dispute the death of the deceased. Admission of the death of the deceased does not ipso facto prove homicidal death.