State vs Bimbadhar Khuntia

B. Panigrahi, J.—This appeal has been filed by causing delay of more than 2 1/2 years along with an application for condoning delay u/s 5 of

the Limitation Act. At the time of hearing of the application for condonation of delay, we thought it proper to hear the matter on merits. Heard

learned counsel for the parties.

Mr. Mohapatra, the learned Addl. Standing Counsel appearing for the appellant has submitted that the State has filed this appeal against the

order of acquittal passed by the learned Additional District Judge, Khurda in a case u/s 302. I.P.C. read with Section 3(2)(V) of the Scheduled

Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

The prosecution case is that prior to six months of occurrence i.e. on 4.2.1995 the deceased Gada alias Gayadhar Behera kidnapped the sister

of the respondent, opp. party Bimbadhar for which there was a dispute in the village, but. the matter was somehow subsided amicably. On the

date of incident at about 8.00 A.M. while the informant Sundari Dei (P.W.3) was going to Ranga Math from her village, she saw the deceased

near the pond of Sahadeb Khuntia. At that moment the accused-respondent went near the deceased and dealt a blow on his head by means of a

sword as a result of which the deceased fell down on the ground and further the accused-respondent went on giving successive blows on the

deceased. After receiving severe bleeding injuries, he collapsed on the ground. On seeing such ghastly incident, P.W.3 raised hue and cry which

attracted many other villagers, who later on reaches the spot. By the time other villagers came near the spot, the injured was already dead. The

dead body of the injured Gayadhar Behera was sent for post-mortem examination. A report was lodged at the Police station. During investigation,

the accused-respondent was arrested. The Investigating Officer visited the spot and recovered the sword, the weapon of offence, blood-stained

clothes and recorded the statement of the witnesses and after closure of the investigation, submitted the charge- sheet.

In order to sustain conviction against the accused. 12 witnesses have been examined of which the evidence of P.W.3 gains importance, as she

has claimed to be the eye witness to the occurrence. The trial Court has closely examined her evidence and found her testimony not worthy of

credence.

P.W.3 is the informant in this case. It is stated in the F.I.R. that while she was going towards the house of the accused, she found the accused the

accused-respondent assaulting the deceased, as a result, the deceased after receiving severe injuries tell down on the ground. She raised hue and

cry as a result. several persons reached the spot. But by the time others arrived at the spot, the accused-respondent disappeared from the scene of

occurrence. Therefore, apart from the evidence of P.W.3. there has been no other ocular evidence to connect the accused-respondent with the

crime. During her examination in Court, P.W.3 made a statement, which contradicted from the F.I.R. story and depicted completely a different

version by stating that she was in the betel vine with the child of the deceased on her lap. Therefore. the trial Court felt rightly unsafe in placing

implicit reliance on P.W. 3.

Mr. Mohapatra, the learned Addl. Standing Counsel wanted us to take other circumstances into consideration. We do not think it proper to

accept such a contention inasmuch as the prosecution story hinges on the testimony of P.W.3 and if P.W.3 is disbelieved, then the entire edifice of

the prosecution would naturally collapse.

In the result, alter hearing on merits, we also do not and any justifiable ground to interfere with the order of acquittal. Accordingly, the appeal as

well as the application for condonation of delay are hereby dismissed.

P.K. Misra, J.

I agree.