B.K. Patra, J. -
(1.) THIS is an appeal from an order of the Sessions Judge, Ganjam acquitting the Respondent who was tried on a charge, under Section 302 of the Indian, Penal Code on the allegation that he committed the murder of his own son, Raj Kumar on 6 -2 -1971.
(2.) THE deceased, Raj Kumar was the Respondent 's son through the latter 's first wife, Sahindri, p.w. 6. Shortly after marriage, Sahindri became lame and was staying in her father 's house. The Respondent therefore married a second wife. Even after the second marriage, he was occasionally visiting his first wife at her parents ' house and it is there that Sahindri became pregnant and gave birth to the deceased, Raj Kumar. Thereafter, the Respondent brought her and her son, Raj Kumar to his house in village Kumanda. It is alleged that the Respondent, on the instigation of his second wife, was ill treating his first wife and her son, Raj Kumar. On 7 -2 -1971, the marriage, of the eldest son of Hadu Alatia of moza Kumunda with the daughter of Saita, Podhan of mouza Koradapalli was to take place at Kumanda mouza. The Respondent was to officiate as a barber in that ceremony. On 6 -2 -1971, p.w. 14, the younger son of Hadu Alatia; accompanied by the Respondent, left Kumunda mouza to go to Karadapalli to invite the bridge. The distance between the two villages is about ten miles. While leaving for Koradapalli, the Respondent brought his son, Raj Kumar along with him saying that he would purchase betel nuts and gundi on the way at Makar padia village and send them home through his son. No such purchase was, however, made at Makarpadia and the deceased, Raj Kumar went with his father and p.w. 14 up to Nuasahi, a hamlet of Koradapalli mouza where the deceased was left in the house of p.w. 10. Thereafter, the Respondent and p.w. 14 went to the house of Podhan, p.w. 5 at Koradapalli mouza. It was evening by the time they reached there and they took their food. Immediately afterwards, the Respondent left Saita Podhan 's house saying that he would go and feed his son whom he had left near p.w. 10 's house. Shortly afterwards, he came back to Saita 's house and to the query made by p.w. 14, he replied that his son had already taken his food and was sleeping. That night, there was a feast in the house of p.w. 5. As the guests including the Respondent were taking their food, p.w. 4 and some others, who, in the meanwhile had gone to a near -by tank to wash themselves, came back with the dead body of a child which was found floating in the tank. It is alleged that although may persons who were partaking in the feast went to see the dead body, nobody could recognise it and that the Respondent not only did not go to see the dead body but also dissuaded p.w. 14 and others from going there. At about 11 p. m. that night, p.w. 2 lodged information at the Jagannath Prasad outpost regarding the finding of the unidentified dead body. p.w. 11 the Assistant Sub -Inspector of Police, in charge of that outpost drew up the U.D. F.I.R., Ext. 2/3 and went to the spot next morning, held an inquest over the dead body and sent it for post mortem examination to Bhanjanagar. Early morning on that day, the Respondent returned home and on being questioned by his first wife regarding the whereabouts of the deceased, he (the Respondent) at first feigned ignorance and later admitted that he had killed him and threw the dead body in the tank. He was arrested the next day. On completion of the investigation, a charge sheet under Section 302 of the Indian Penal Code was laid against him and after preliminary inquiry he was sent up to the Court of sessions where after trial, he was acquitted. P.w. 9, the doctor, who conducted the post mortem examination over the dead body of Raj Kumar, found only an external injury which was a small abrasion 1" Ã - 1/2" in the region of the shoulder and post -mortem in character. The other symptoms that he noticed are the following;
(1) Blood -stained fluid was coming out of the nostrils;
(2) the skin was dry and there was no evidence of blisters;
(3) on internal examination, he found the mucus membrane of the trachea congested;
(4) the lungs were found of normal contour and when put in water, it was found floating;
(5) on being cut, the lungs had exuded only small amount of, frothy blood;
(6) the mucus membrane of the stomach showed areas of congestion at places;
(7) the stomach contained about 1/2 - oz of slimy fluid in which some undigested food particles were seen;
(8) intestines were distended with gas;
(9) both the chambers of the heart were empty and nothing abnormal was noticed there.
According to the doctor, congestion of the trachea is one of the symptoms of death by throttling. But he stated that other symptoms of death by asphyxia which one would expect in the case of death by throttling or drowning were totally absent. He, therefore, could not give any positive opinion about the cause of death.
(3.) THERE is satisfactory evidence on record to show that on the date of occurrence, the deceased left his village along with his father, the Respondent and p.w. 14. This is admitted by the Respondent during his examination in the Trial Court. But he stated that he sent back his son from Makarpadia. His statement on this point is contradicted by p.w. 14 who stated that the deceased was not sent back home from Makarpadia, but that he went on along with him (p.w. 14) and the Respondent upto Nuasahi where the Respondent left Raj Kumar in the house of his Sangat. p.w. 14 did not know the name of this Sangat of the Respondent. But p.w. 10, Radha Podhanuni stated that about a year before her examination in Court on 3 -2 -1972, the Respondent brought his son, Raj Kumar and made him to sit on a plank in front of her house and went away. Raj Kumar played with the children for some time where after p.w. 10 's children went inside their house to take food. About an hour afterwards when p.w. 10 came out of her house, she did not find Raj Kumar there.;