JUDGMENT
B. Panigrahi, J.
1. The appellant stood prosecuted for the commission of murder of one Sulochana Naik along with other two accused namely Sudaya Naik (since acquitted) and Narayan Naik punishable under Section 302/34, IPC.
2. The prosecution story as unfolded in course of trial is as follows :
On 18th August, 1999 at 8.30 A.M. while Sulochana Naik went to her field situated at a place called ‘dadar’, the appellant and his two associates were said to have followed her. Apprehending that the appellant might assault deceased Sulochana, her daughter-in-law (P.W. 1) along with P.W. 5 proceeded towards Tarava and noticed that the appellant along with others were assaulting the deceased. After Sulochana receiving injuries she fell down on the ground and succumbed to the injuries. The matter was reported by P.W. 1, the daughter-in-law of the deceased. On the basis of such report a case under Section 302/34, IPC was registered by the O.I.C., Tarava Police Station who immediately swung into action. During investigation he visited the sppt, held inquest over the deadbody of Sulochana, examined witnesses, arranged to despatch the deadbody of Sulochana for post-mortem examination, arrested the appellant and his wife. The appellant while in custody was said to have disclosed that he had concealed the weapon of offence locally known as ‘Lali’ which was seized in presence of witnesses and it was sent to Serologist and after closure of investigation, charge-sheet was placed against all the three accused persons.
3. Since accused Narayan Naik absconded from the village, the case was split up and accordingly the appellant and his wife Sudaya Naik faced trial by the learned Addl. Sessions Judge, Sonepur. The appellant’s wife Sudaya Naik was acquitted from the charges whereas the appellant was convicted under Section 302/34, IPC,
4. The defence plea in the trial Court was one of complete denial of the occurrence and the appellant had claimed to have been falsely implicated in this case.
5. In order to sustain the charge against the appellant, the evidence of two eye witnesses namely P.W. 1 (Sasmita Naik) and P.W. 5 (Jana Jal) had been relied upon by the prosecution, apart from the testimony of the other official witnesses.
6. Learned counsel appearing for the appellant has strongly contended that on examining the evidence of P.W. 1, there has been no iota of evidence to connect the appellant with the crime. According to him, P.W. 1 made a general statement that all the accused persons had assaulted her mother-in-law by lali, crowbar and stick. The weapon of offence namely ‘lali’ was being held by the appellant whereas his wife was holding a lathi. P.W. 1 was said to have proceeded towards ‘dadar’ sometime after the deceased went to her land had by the time she reached there, her mother-in-law had already fallen on the ground. She noticed at a distance of 200 cubits away. Therefore, the incident as seen by P.W. 1 that the appellant was assaulting the deceased by ‘Lali’ cannot be believed. Furthermore, from her testimony it has appeared that the absconding accused Narayan Naik was assaulting her mother-in-law by a crowbar on the right side neck and back whereas the acquitted accused Sudaya was assaulting her with a stick on her back. In the cross-examination nothing has been spelt out to connect the appellant with the crime.
7. Now turning to the evidence of P.W. 5 it appears that although in his chief examination he stated that this appellant assaulted the deceased with a ‘Lali’, but it is strange to note that after he returned back to the village he did not inform anybody of the village about the incident. His statement was recorded 2 days after the incident. It is not understood why the Investigating Officer did not care to record the statement immediately after the incident, P.W. 6 is the father-in-law of P.W. 2. According to him, he was informed by P.W. 1 and one Jhankar on the way that the accused persons killed the deceased. But P.W. 1 did not whisper a word about informing her father with regard to the incident on the way and Jhankar was not examined by the prosecution.
8. Referring to the evidence of P.W. 8, the doctor who conducted post-mortem examination over the deadbody of deceased it is ascertained that there was bleeding from the nose and mouth of the deceased, and there was a linear abrasion over the right side of the neck and fracture of 3rd, 4th and 5th ribs of her chest. The cause of death was due to haemorrhage and shock due to multiple fractures and asphyxia. He has never deposed that any such injury could be possible by a ‘Lali’.
9. Therefore, on a combined reading of the evidence of P.Ws. 1, 5 and 8, it is doubtful whether the appellant had assaulted the deceased as a result of which she died out of injuries caused by ‘Lali’. We also found another striking feature in this case that all
the three accused persons were charged under Section 302/34, IPC, but accused Narayan Naik is still to be apprehended, and the other female accused Sudaya Naik has been acquitted. In such background, we do not find any earthly reason as to how the learned Addl. Sessions Judge had convicted the appellant under Section 302/34, IPC on the basis of such doubtful evidence.
10. In the result, we allowed the appeal, and set aside the conviction and sentence passed against the appellant under Section 302/34, IPC. The appellant be set at liberty forthwith, if his detention is not required in any other case.
Ch. P.K. Misra, J.
11. I agree.