Decided on March 08,1973

Giridhari Biswal Respondents


ACHARYA, J. - (1.) THIS is an appeal under Section 417 of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Sambalpur acquitting the accused in the Court below (respondent herein) of the charge under Section 302 of the Indian Penal Code.
(2.) THE prosecution case, in short, is that on 22.9.1968, by about mid -day, the accused, following a quarrel with his wife, Gouri Dei, assaulted her with a Lathi to death. The accused, both in the committing Court as also in the Sessions Court, consistently pleaded not guilty to the charge, and denied the entire prosecution case against him. He, however, stated in his statement before the Sessions Judge that he had some difference and quarrel with his wife, the deceased, on the date of occurrence and on account of that his wife took poison and died on the same day. P. W. 7, the father of the deceased, lodged the First Information Report (Ext. 1) at 6 P. M. on 22 -9 -68 on whatever information he could gather from the neighbours and villagers of the accused about the death of his daughter, the deceased.
(3.) THE trial court on a lengthy consideration of the evidence on record has acquitted the accused of the charge under Section 302, I. P. C. on the finding that it is not established on the prosecution evidence that the death of the deceased was caused due to assaults on her by the accused. He finds that on the evidence on record it is established that the accused assaulted his wife only with M. O. I., a light bamboo pipe one foot long and four inches in girth, meant mostly for blowing AIR into ovens. On that finding he has convicted the respondent under Section 323, I. P. C. Considering that fact along with other facts and circumstances of the case and the positive evidence of the doctor, P. W. 10, to the effect that the only grievous and fatal injury on the head of the deceased could not have been caused due to a stroke with M. O. I., the Court below has acquitted the accused of the charge under Section 302, I. P. C. This appeal is directed against this order of acquittal.;

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