Decided on November 22,1978

Goti Lachhumu Dora Respondents


J.K.Mohanti, J. - (1.) THIS is an appeal under Section 378, Code of Criminal Procedure by the State of Orissa against God Lachhumu Dora, who has been acquitted of the charge under Section 302, Indian Penal Code by the Sessions Judge, Koraput, Jeypore.
(2.) THE case of the prosecution is that on 24 -12 -1974 at about 6 p.m. the accused -Respondent called the deceased Manjee Karkaria to the threshing floor of one Malifula of village Domb Baraguda and demanded Rs. 30/ - being the price of the bullock which was sold to him (deceased) earlier. As the deceased expressed his inability to pay the amount, the accused was annoyed and assaulted him with slaps, fist blows and kicks. P.W. 2 Karkaria Moni, the son of the deceased who happened to be present at the place of occurrence, on seeing the incident, shouted. On hearing the shout, P.Ws. 3 to 5 came there. It is alleged that on receiving slaps, fist blows and kicks from the accused, the deceased fell down and died at the spot. P.W. 9 and others, who came to the spot some time after, held a panchayat where the accused confessed his guilt. On the following day P.W. 2 went to Ambadala Police Station and lodged information. The Assistant Sub -Inspector of Police (P.W. 10) drew up F.I.R. (Ext. 2) and took up investigation. The dead body was sent for post -mortem examination and P.W. 6. the Medical Officer, held the post -mortem examination. After completion of investigation, P.W. 11, the Officer -in -charge of the Police Station, who took over charge of the investigation from P.W. 10, submitted charge -sheet. The plea of the accused -Respondent was a denial and his further plea was that a false case has been started against him. The prosecution has examined 11 witnesses of whom P.Ws. 2 to 5 are said to be eye witnesses to the occurrence. P.W. 9 was examined to state that the accused confessed his guilt in the panchayat, but he has deposed in Court that the accused never confessed his guilt. P.W. 6 is the Medical Officer, who conducted the post -mortem examination and submitted his report (Ext. 1). P.W. 7 spoke a bout the sale of the bullock by the accused to the deceased for Rs. 30/ -. P.W. 1 is the constable, who accompanied the dead -body and identified the deceased to the Medical Officer, P.W. 6. P.Ws. 10 and 11 are the Investigating Officers. The accused has not examined any witness in his defence.
(3.) THE learned Sessions Judge after considering the evidence of the eye witnesses (P.Ws. 2 to 5), the evidence of the doctor (P.W. 6) and of P.W. 9 came to the following finding: Thus it would be seen from the above that the evidence of P.Ws. 2 to 5 is contradictory and inconsistent too. P.W. 9 is said to be the panchayat witness. He is examined to say that the accused confessed his guilt in the panchayat. But in evidence the witness did not support the story of the prosecution and so the learned Public Prosecutor declared him hostile and cross -examined him with the permission of the Court. But nothing material has been elicited to show that he is suppressing the truth. This apart, P.Ws. 2 to 5 do not say that any panchayat was held and in that panchayat the accused confessed his guilt. In such circumstances, it cannot be said that P.W. 9 is not telling the truth. To sum up, medical evidence is not positive on the point that the rupture of the spleen was due to fist blows and kicks. Oral evidence on the point is also far from satisfactory. P.W. 2 says that the deceased was assaulted by the accused and his two brothers by fist blows and kicks, but he is not certain as to by whom the deceased was assaulted. P.W. 4 does not support the story of the prosecution, on the other hand, he makes contradictory statements and denies the presence of the accused at the spot. P.Ws. 3 and 5 also make contradictory statements, and hence it is not safe to rely on them. If the evidence of p.Ws. 2 to 5 is rejected as unworthy of credit, there is no other evidence worth the name on record to conclude that the deceased died as a result of assault on him and that it was a case of homicide. The evidence also falls short of the required proof that the accused was responsible for the death of the deceased. He, therefore, acquitted the accused of the charge under Section 302. Indian Penal Code.;

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