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2007 DIGILAW 594 (ORI)

STATE OF ORISSA v. GANDU ALIAS GANDRA TIRKEY

2007-08-01

P.K.TRIPATHY, R.N.BISWAL

body2007
( 1 ) HEARD. ( 2 ) THIS Government Appeal is directed against the order of acquittal granted by the addl. Sessions Judge, Rourkela in favour of the accused-Respondent as per the impugned judgment passed on 1-6-1988 in S. T. No. 175/48 of 1988. ( 3 ) PINU alias Kunu Oram is the deceased. Accused Gandu alias Gandra Tirkey is one of his co-villagers. Deceased had taken the bi-cycle of the accused, but did not return the same nor paid the price thereof in spite of repeated demands. On 14-8-1987 while the accused together with Samara Oram (P. W. 3) were tending cattle and informant dhilon Oram (P. W. 1) elder brother of the deceased was in the adjoining land the deceased arrived there. There was exchange of words and altercation between the accused and the deceased. Thereafter, accused dragged the deceased by catching hold of the napkin around the neck of the deceased so as to get his bi-cycle. Deceased could escape from that hold and in retaliation accused dealt a blow by a Falsia (an axe type weapon) by its sharp edge. As a result of that blow the head was almost severed from the trunk and the deceased died at the spot. P. Ws. 2 and 3 are respectively the wife and son of P. W. 1. P. W. 8 Budhu Tirkey is the elder brother of the accused. The aforesaid four persons were cited as eye witnesses to the occurrence. On the information given by p. W. 1, investigation was undertaken by the i. O. (P. W. 13 ). He submitted Charge Sheet for the offence under Section 302, I. P. C. After commitment of the case accused was charged for the said offence. Accused denied to the charge and claimed for trial. ( 4 ) IT reveals from the evidence of Dr. G. P. Jaiswal (P. W. 7) that deceased had sustained incised wound of the size 6" x 8" x 5" on the neck extending from left side chin and passing below ear to back of neck up to right edge of the nape of neck. It was supported by corresponding internal injuries. P. W. 7 opined that death of the deceased was due to neurogenic and haemorrhagic shock resulting from the above indicated injury and that it was homicidal in nature. There was no contest on the aforesaid opinion of P. W. 7. It was supported by corresponding internal injuries. P. W. 7 opined that death of the deceased was due to neurogenic and haemorrhagic shock resulting from the above indicated injury and that it was homicidal in nature. There was no contest on the aforesaid opinion of P. W. 7. Therefore, the trial Court recorded the finding that deceased suffered homicidal death. ( 5 ) WHILE examining as to whether the accused is the author of the injury which resulted in death of the deceased, evidence of the aforesaid four eye witnesses were considered by the trial court. In view of the evidence of P. W. 2 in the cross-examination that "i did not see the accused cutting the neck of the deceased, but I heard from my son", he was eliminated from the status of eye witness to the occurrence. P. W. 3, a child witness, aged about 12 years was found by the trial Court to be capable of giving rational answer after understanding the implication of the questions put. P. W. 2 stated that axe held by the accused at the time of quarrel with the deceased was taken away from his hand by P. W. 1 and in the process of dragging the deceased P. W. 1 separated them and then the accused dealt a blow by a Balua (the same weapon 'falsia' ). He also stated in the examination-in-chief that "i cannot say from which place the accused brought the Balua (M. O. I ). I had been to the jungle to drive cattle at that time. " In cross-examination this witnesses also stated that "my father and mother tutored me to depose before the I. O. Today also my parents tutored me to depose before the Court. " taking note of all such evidence of P. W. 2, the trial Court did not rely on his evidence. P. W. 8, the elder brother of the accused did not support the prosecution story and therefore, except confronting the statement under Section 161, Cr. P. C. and putting suggestion in that respect nothing was extracted from his mouth. Therefore, his evidence was found to be of no help to the prosecution in furtherance of proving the charge. P. W. 8, the elder brother of the accused did not support the prosecution story and therefore, except confronting the statement under Section 161, Cr. P. C. and putting suggestion in that respect nothing was extracted from his mouth. Therefore, his evidence was found to be of no help to the prosecution in furtherance of proving the charge. On analysis of the evidence of P. W. 1, the lone eye witness (after elimination of the other eye witnesses), trial Court did not find it safe to rely on his evidence because being the elder brother of the deceased he is highly an interested witness for the prosecution and he contradicted by narrating the occurrence in completely a different manner inasmuch as in the F. I. R. P. W. 1 did not state about the accused snatching away the Falsia from the hands of his brother to deal the blow to the deceased. According to his evidence other persons were working in the nearby field, but no such independent person was cited as witness. ( 6 ) LEARNED Addl. Government Advocate argues that even if the evidence of P. Ws. 2, 3 and 8 are eliminated, then also the evidence of P. W. 1 is sufficient to prove the charge against the accused inasmuch as P. W. 1 being the elder brother of the deceased, he would not have the temperament to protect the real offender and implicate an innocent person. He further argues that evidence of P. W. 1 corroborates the evidence of P. W. 7 relating to the nature of the injury and the cause of death and under such circumstance there is no earthly reason to discard his evidence. He, however, is unable to explain the circumstances as noted above, which was taken note of by the trial Court to discard evidence of P. W. 1. ( 7 ) INTERESTEDNESS of a person does not disqualify him to be a witness. The degree of relationship and interestedness of a witness makes the Court conscious to appreciate the evidence in appropriate manner. In this case, trial Court has taken a reasonable view in not accepting the evidence of P. W. 1 for the reasons already indicated above. Those reasons cannot be recorded as unreasonable or illegal. The degree of relationship and interestedness of a witness makes the Court conscious to appreciate the evidence in appropriate manner. In this case, trial Court has taken a reasonable view in not accepting the evidence of P. W. 1 for the reasons already indicated above. Those reasons cannot be recorded as unreasonable or illegal. Therefore, even if the other logical conclusion as projected by the prosecution is one of the probable view, that should not be Invoked against the other reasonable and probable view which has been utilized for grant of order of acquittal. ( 8 ) ON re-reading of the evidence on record and the findings recorded by the trial court, we find that the findings recorded in favour of accused does not suffer from illegality or perversity and therefore, we do not interfere with that order of acquittal. Accordingly the Government Appeal is dismissed. Appeal dismissed. .