~
)
PRAMOD KUMAR MANTRI AND ANR.
A
\'.
STATE OF ORISSA
JANUARY 27, 1997
[K. RAMASWAMY AND G.T. NANAVATI, JJ.]
B
Criminal Law :
Penal Code, 1860 :
Ss. 302 r/w. 34, 304 Pan ll-Murder--<:onviction-Assault-No cor-
C
roborating evidence by the doctor as to dragging of the deceased by the
accused-Evidence of eye-witnesses discrepant on material .par-
ticulars-Cross-examination of PW 1 revealed there was no blood stain
outside the house-Had there been dragging there would be trail of
blood-Hence conviction and sentence of appellants nos. 2 and 3 for an D
offence under S.304, Pmt 11 set aside.
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal
Nos. 127-28 of 1997.
From the Judgment and Order dated 5.4.95 of the Orissa High Court E
in Crl.A. No. 109-110 of 1989.
Janaranjan Das and K.N. Tripathy for the Appellants.
Indrajit Roy and P.N. Misra for the Respondent.
The following order of the Court was delivered :
Delay condoned.
Leave granted.
We have heard learned counsel on both sides.
By order dated November 8, 1996 the petition was dismissed as
F
G
,
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against the first petitioner, Bhikari Behera and notice was ordered in
respect of the remaining two petitioners, namely; Pramod Kumar Mantri,
Bhagirathi Rout. The case of the prosecution is that on May 28, 1988 at H
567
568
SUPREME COURT REPORTS
[199711 S.C.R.
I
A about 10.00 a.m., all the three accused armed with Thengas entered into
the house of deceased Bauribandhu. A-1 had hit him on the head twice
and threw him down. Thereafter, the three accused had dragged the
deceased outside the house, when wife and son of the deceased raised
alarm, they ran away from the place, FIR was lodged at about 11.30 A.M.
B and thereafter investigation was conducted. The appellants and two others
have been charged under Section 302 read with under Section 149 I.P.C.
The Courts below convicted the appellants for an offence pun.ishable under
Section 302 read with Section 34 I.P.C. As regards the assault by the
appellants, there is no corroborating evidence by the doctor as to dragging
of the deceased by the accused. Even the evidence of the eye-witnesses is
C discrepant on material particulars. Accused Nos. 2 and 3 were standing
behind PW -2. If really all the three accused had entered into the house all
of them would have attacked the deceased. That is no the case of the
prosecution. Under these circumstances, the prosecution cannot be said to
have proved beyond reasonable doubt that the appellants shared the
D common intention with A-1 to kill the deceased. Even the evidence of
PW -1 that they entered the house and dragged the deceased is not reliable
since the admission in the cross-examination is that there was no blood
stain outside the house. Had the dragging really been there, there would
be trail of blood.
E
The appeals are accordingly allowed. The conviction and sentence of
the appellants Nos. 2 and 3 for an offence under Section 304, Part II, IPC
stand set aside.
G.N.
Appeal allowed.
Lex