STATE OF ORISSA Vs. SANTOSH KUMAR SWAIN

JUDGEMENT

(1.) THE appellant has filed this Government Appeal challenging the judgment dated 15.3.1994 passed by the learned 1st Addl. Sessions Judge, Berhampur in Sessions Trial No.9/92 (S.C. No.40/92 GDC) acquitting the accused persons of the charges under Sections 148/302/149 IPC and charges under Sections 336/337 IPC.

(2.) THE prosecution case, in a nutshell, is that P.W.4 was the informant. He lodged a written report at Bhejiput Out Post on 16.10.1991 at about 11 P.M. It was alleged in the FIR (Ext.5) that on 16.10.1991 at about 8 P.M while his cousin brother Panchu Sahu-deceased was coming from the paddy field, the accused persons, being armed with deadly weapons came out from the house of Santosh Kumar Swain (A-1) due to previous enmity and obstructed him. It was further alleged that A-2 abused him and instigated others to kill him. At that time, wife of A-1, Promodini Swain charge sheet accused not being faced the trial has been declared as absconder, handed over a Bhali (MO I) to her husband and instigated him to kill the deceased. Suddenly, A-1 pierced the weapon of offence on the chest of the deceased as a result of which he fell down there and other accused persons threw brickbats. The informant along with others, who was present at the spot, tried to rescue the deceased. However, due to pelting of brickbats, they failed to rescue the deceased. After knowing the deceased died, accused persons left the place to kill another person, namely, Krushna Swain and attacked his house. One Kailash Sahu, wife of Krushna Swain and others sustained injuries due to pelting of brickbats. Apprehending further disturbances, they shifted the injured and the deceased to Bhejiput Out Post in an Auto and with the help of Thana Babu, they shifted the deceased and injured to Khallikote Hospital. It was also alleged in the FIR that the informant named P.Ws.5 and 6 (Sibaram Pradhan and Maguni Swain) as eye witnesses to the occurrence. Accordingly, the informant submitted the written report to the ASI, Bhejiput Out Post, who made a station diary entry and sent the FIR to Khallikote Police Station for registration of police case, where it was registered as Khallikote P.S. Case No.69 of 1991 for commission of offence under Sections 147/148/336/337/302/149 IPC and the investigation taken up. After completion of investigation, charge sheet was filed for commission of offence under the aforesaid Sections of the I.P.C. Out of the accused persons, namely, Banambar Swain and Promodini Swain were shown as absconders. Except those two accused persons, rest of the accused persons faced the trial. The case was split up against the aforesaid two accused persons as they could not be apprehended.

(3.) THE defence case was that the informant party including deceased attacked the house of accused A-1 being armed with various deadly weapons and hearing hulla, some of the villagers came there and protested such action on which there was a fight between those two groups. During the said fight, the deceased accidentally received a stab blow. Despite request of the wife of the deceased, he was not given immediate medical attention as a result of which the injured died. The absconding accused Promodini and Banambar were not at all present in the village on the said day. The accused A-1 did not give stab blow to the deceased as alleged and accused persons were falsely and maliciously implicated in the case due to previous enmity. The defence also disputed the place of occurrence and the presence of light at the spot.