State Of Orissa vs Khanda Mallik And Another

Misc. Case No.92 of 2011

For the reasons stated therein, the delay in filing the present criminal leave petition is hereby condoned.

The application for condonation of delay is allowed.

CRLLP No.43 of 2011

The present petition by the State seeks leave to appeal against the judgment dated 27th December, 2010 passed by the learned Sessions Judge, Dhenkanal in C.T. Case No.13 of 2007 acquitting the Opposite Party-Accused persons of the offences punishable under Sections 148/302 read with Section 149 of IPC and alternatively Section 302 read with Section 34 of IPC.

The Opposite Party-Accused were, along with several other accused, charged with committing the murder of one Pankaj Mallik pursuant to a common object and alternatively in furtherance to their common intention.

The main accused was one Bhima Mallik who bore a grudge against the deceased who had defeated him in an election for membership of a Panchayat ward. On 19th February, 1997 while the deceased was talking with the driver of a trekker, with three other persons sitting inside, the main accused Bhima Mallik along with the present two accused, Khanda Mallik and Pakhira Mallik and other co-accused persons are said to have come there armed with deadly weapons. The accused Bhima Mallik was said to have dealt a farsa blow on the neck near the ear, the arm etc., of the deceased person. Khanda Mallik also is said to have dealt certain blows along with other accused persons.

As it transpired since the present two accused were unable to be apprehended immediately, the trial against them was split. Barring Bhima Mallik, who faced trial alone in S.T. Case No.210 of 2001 and was convicted for the offence under Sections 302 read with Section 34 of IPC, all the other co-accused who faced trial in S.T. Case No.51-D/1999/117/2000 were acquitted.

As far as the present two accused persons are concerned, the trial Court found that the evidence of the prosecution hinged on the evidence of Batakrishna Mallik (PW-5), the informant, Rama Mallik (PW-3) and Arjun Mallik (PW-4). PW-4 was declared hostile by the prosecution as he could only name Bhima Mallik as the assailant. As regards PW-3, he deposed that Bhima Mallik dealt the farsa blows and that he saw the assault from distance. As far as Khanda Mallik is concerned, according to PW-3, he assaulted the deceased on his right thigh by means of a bhujali whereas Pakhira is said to have assaulted the deceased on his leg with an iron rod. The above deposition of PW-3 was not supported by the Investigating Officer (IO) (PW-10) who when confronted by the defence, admitted that PW-3 had said so for the first time in the Court and not during the investigation. The evidence of PW-3 was also inconsistent on the role attributed to each of the accused.

Having carefully examined the evidence with the help of learned Additional Government Advocate for the State, the Court is satisfied that the trial Court has committed no error in disbelieving the prosecution evidence as far as the Opposite Party-accused are concerned.

No grounds have been made out for interference. Accordingly, the criminal leave petition is dismissed.

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