Decided on April 17,1973

Khagapati Majhi Respondents


ACHARYA - (1.) THIS is an appeal under Section 417 (1), Criminal Procedure Code against the judgment of acquittal passed by the Sessions Judge, Koraput, in Sessions Case No. 43 of 1969 acquitting the accused, respondent herein, of the charge under Section 302, I. P. C.
(2.) THE prosecution case in short is that in the night of 26/27.3.1969, the accused, who was in adulterous relationship with P. W. 6, the wife of Raghunath Behera, the deceased, was sharing the bed with P. W. 6 in the house of the deceased. At that time Raghunath returned to his house and tapped at the door asking his wife (P. W. 6) to open the same. P. W. 6 after opening the back door of the bed room in which she and the accused were sleeping, opened the front door enabling her husband to get inside the room. As the room was very dark, Raghunath asked P. W. 6 to light up a lamp. While P. W. 6 was in search of fire to light up the lamp, the accused, who was concealing himself in that room, picked up an axe and dealt a blow with the same on the left scapular region of Raghunath as a result of which Raghunath fell down at the spot and died after a few hours. The accused after dealing the blow on Raghunath fled away from that place leaving the axe in that room. Thereafter, P. W. 6 began to cry aloud, which attracted the attention of persons in the neighbourhood. Many villagers including P. Ws. 1 and 2, respectively the Grama Rakhi and the Sarpanch, cane to that house and enquired from P. W 6 and the injured about the incident. The hen could only know that some unknown person assaulted Raghunath and fled away from that place. Raghunath died at about 4 a. m. in the morning. Early next day morning, P. W. 2, the Sarpanch, and some others of the village including P. Ws. 4 and 7 assembled near the house of the deceased and asked P. W. 6 all about the incident of the previous night P. W. 6 then informed them that it was the accused who assaulted the deceased with an axe inside that room. On their query as to why she did not disclose the name of the accused during that night she said that she did not do so due to extreme fear and mental agony. The accused thereafter was sent for to that place, and he too in the presence of P. Ws. 2, 4 and 7 and some other villagers present there confessed that he assaulted the deceased apprehending danger to his own life. P. W. 1 had earlier left for the police station, and on his written report (Ext 1) at the Tentulikhunti P. S. on 27.3.1969 at 9 a.m. at first a station diary entry (Ex. 6/1) was drawn up, and on the same the L O., P. W. 12, drew up the formal F. I. R. (Ext 6) on 28.3.1969. P. W. 12 thereafter visited the spot held inquest over the dead body and forwarded the dead body of the deceased for post -mortem examination. That very day he examined the witnesses and also the accused, after arresting him. He seized the axe (M. O. I) under seizure list (Ex. 8) and also seized certain other articles relevant for the purpose. After further investigation and the commitment proceeding, the accused was tried for a charge under Section 302, I. P. C., but the learned Sessions Judge acquitted him of the said charge on giving him the benefit of doubt. The accused pleaded not guilty to the charge. He denied to have made any extra -judicial confession before anybody but admitted to have made a judicial confession before P. W. 15, a Magistrate, 1st Class, but he stated that he made that statement because of threat and coercion by the Police.
(3.) P . W. 5, the doctor, who held the post -mortem examination of the deceased on 29.3.1969 found one incised gaping wound 3" x 1" x 3" just below the left scapula. He opined that the said injury was an ante -mortem one and might have been caused by a blow with an axe like M. O. I. On dissection he found that the seventh left rib was completely cut below the said wound. The pleura and the left lung to the extent of 3"x 1/2"x 1/2" were cut corresponding to the above wound. He opined that the internal injuries were the result of the external injury on the deceased and that the death of the deceased was due to shock and haemorrhage as a result of the said injury. The doctor proved his postmortem report (Ex. 2). From the post -mortem report and the doctor's evidence there is no doubt that the death of the deceased was homicidal.;

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