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2009 DIGILAW 87 (ORI)

STATE OF ORISSA v. BHAJAMAN KONHAR

2009-01-30

P.K.TRIPATHY, SANJU PANDA

body2009
JUDGMENT : 1. Respondent Bhajaman Konhar faced trial in the Court of Sessions Judge, Phulbani in Sessions Case No. 52 of 1992 for the charge u/s 302, I.P.C. on the allegation that on 17.02.1992 accused assaulted his cousin Ringa Konhar (the deceased), as a result of which ultimately he died at the district headquarter hospital on 19.02.1992. 2. To substantiate the charge, prosecution examined as many as eight witnesses and relied on the documents marked Exts. 1 to 17 and the material objects such as lathi, M.O.-I and the wearing apparels of the accused and the deceased marked M. Os. II to VII. Amongst the witnesses P. Ws.1 and 2 were relied on as eye-witnesses to the occurrence. P.W. 7 was the doctor, who treated the deceased at Phulbani headquarter hospital. Amongst the documents Ext. 9 is the Inquest Report, Ext. 3 is the F.I.R., Ext. 17 is the Post-mortem Report and Exts.1 and 2 are the reports from the State Forensic Science & Laboratory, Bhubaneswar. 3.(SIC) Referring to Ext. 17, Learned Sessions Judge recorded that the deceased suffered homicidal death due to ante-mortem injuries. He assessed the evidence of P. Ws.1 and 2 in furtherance of proof of charge u/s 302, I.P.C. against the accused and found that though P.W. 1 in her examination-in-chief stated that she was an eye-witness to the occurrence of assault, but in the cross-examination she admitted that she did not see the actual assault. The evidence of P.W. 2 in the examination-in-chief was to the effect that she did not see any part of the assault. Evidence of both P. Ws.1 and 2 being not challenged by the prosecution goes to show that accused was among the persons who took care of shifting the deceased to the hospital at Tikabali at the first instance and thereafter to the Headquarter Hospital, Phulbani. The witnesses to the seizure of the weapon of offence, i.e. lathi, did not support the prosecution case. Thus, on analysis of such evidence Learned Sessions Judge recorded the finding that prosecution has not been able to prove beyond reasonable doubt that accused is the author of the injuries, which resulted in homicidal death of the deceased. 4. The witnesses to the seizure of the weapon of offence, i.e. lathi, did not support the prosecution case. Thus, on analysis of such evidence Learned Sessions Judge recorded the finding that prosecution has not been able to prove beyond reasonable doubt that accused is the author of the injuries, which resulted in homicidal death of the deceased. 4. Learned Standing Counsel referring to the evidence of P. Ws.1 and 2, argues that evidence of P.W. 1 in the examination in chief clearly discloses that she was an eye-witness to the occurrence and therefore such evidence of P.W. 1 should not have been discarded only because of stray answers given in course of the cross-examination. Learned Standing Counsel further argues that it appears from the evidence of P.W. 2 that he was confronted with his previous statements recorded under Sections 161 and 164, Code of Criminal Procedure., the latter being marked as Ext. 4, and in such statement P.W. 2 had admitted that accused was the author of the injuries and such evidence of P.W. 2 should not have been side-tracked. Accordingly he argues to rely on such part of the evidence of P. Ws.1 and 2 to record order of conviction of the Respondent. Learned.Standing Counsel does not dispute to the settled position of law that if two views are possible from the same set of evidence, then the view adopted by the Trial Court for recording the acquittal should not be disturbed by the High Court in exercise of the Appellate jurisdiction. 5. On perusal of the evidence of P. Ws.1 and 2, the reasoning assigned by the Trial Court and the aforesaid argument of the Learned Standing Counsel, we find that P.W. 1 is none else than the sister of the deceased and P.W. 2 is the brother of the deceased. Accused is a cousin to them. P. Ws.1 and 2 have tilted on both sides, i.e., in favour of the prosecution as well as the accused in course of their examination and cross-examination. Therefore, by that conduct they have made themselves unreliable. Under such circumstance, we do not agree to the argument of the Learned Standing Counsel to rely on P. Ws.1 and 2. The same course was adopted by Learned Sessions Judge to record an order of acquittal in favour of the Respondent. Under such circumstance, we find no merit in the Govt. Under such circumstance, we do not agree to the argument of the Learned Standing Counsel to rely on P. Ws.1 and 2. The same course was adopted by Learned Sessions Judge to record an order of acquittal in favour of the Respondent. Under such circumstance, we find no merit in the Govt. Appeal and accordingly the same is dismissed. Final Result : Dismissed