JUDGMENT

P. Venkatarama Reddi, J.—S.L.P. (Crl.) 3971 of 1995

Leave granted.

2. Five persons including respondents 1 and 2 herein stood trial before the court of Sessions, Balasore, for intentionally causing the death of one Santosh Kumar Mohanty on the night of 14th March, 1988. The two respondents were charged and convicted under Section 302 IPC. They are the father and elder brother of the deceased who was serving in Indian army at Dehradun and who came to his native place to take his wife with him. The other accused are the second wife of the accused Babaji Charan Mohanty and his son and daughter. The wife of deceased by name Manjulata Mohanty figures as informant and PW1 in this case. She married the deceased about a year earlier.

3. The accused Nos. 3 to 5 who were charged under Section 302 read with 34 IPC were acquitted by the learned Sessions Judge. On appeal preferred by accused 1 and 2 (respondents herein), the High Court set aside the conviction and sentence and acquitted them of the charge of murder. The High Court did not consider it safe to rely on the evidence of PW1 - the wife of the deceased. Against this judgment of the High Court, the State of Orissa has preferred the present appeals.

4. The prosecution case may be narrated briefly. At about 9.30 p.m. in the night of 14th March, 1988, the deceased and his brother Mayadhar (A-2) took their meal together at their house and thereafter the deceased went to his bed room. The first accused Babaji and his son (A-3) had their food in the kitchen room where the ladies including PW1 started taking their meal thereafter. At that time PW1 heard alarming cries from her deceased husband to the effect “I am dying, Mayadhar what I have done to you and why do you assault me!”. When PW1 tried to go out of the kitchen towards the bed room where her husband was shouting, she found the kitchen door chained from outside. While she was shouting and imploring others to open the door the accused persons 4 and 5 (second wife of the 1st accused and his daughter) gagged her mouth by placing their hands on her face firmly. However, with some difficulty, she could unchain the door by reaching it with her hands through the gap. She found that the backyard door abutting the bed room was closed from inside. She then started shouting near the window of the bed room. Again, the daughter of A-1 came there and tried to close her mouth and asked her not to shout. She then came to the Bari door (backyard door) and found the same opened. There, she saw her husband lying on the floor with multiple bleeding injuries and the first accused assaulting him with a `club’ (wooden Gada) and the second accused assaulting him with a sword. The third accused was focusing the torch light towards him as the electric lights were dim on account of low voltage. She heard the accused persons 1 and 2 saying (`sala dead’) and saw them going towards the front side of the house. The victim asked for water which she brought and asked her to call the villagers as they had threatened to burn him alive. She then dragged her husband to the verandah on the back side of the house. Thereafter, she proceeded to the house of Krishna Das (PW5) who is the immediate neighbour. When she was coming back towards her house, A-2 and A-3 threatened to assault her also. As PW1 was crying and shouting, accused 1 and 2 tried to put her inside the kitchen in the first instance and thereafter inside the bed room and tried to close the door from outside. With some difficulty she came out of the room and shouted for help. The two accused threatened her to kill if she did not keep quiet. On hearing her shouts, the village servant by name Jena (not examined) and one other person - PW-3, came to their house and then some other villagers also gathered. A truck was passing through the road in front of their house at that time. PW1 accompanied by village servant and PW3 immediately went to the police station by the truck. There she made an oral repor