JUDGMENT

B.R. Sarangi, J.— This appeal has been directed against the order of acquittal dated 20.6.1997 passed by the learned Sessions Judge, Boudh Kandhamal at Phulbani in S.T. Case No. 153 of 1995 acquitting the accused-respondent of the charge under Section 302, IPC and convicting him under Section 323, IPC and sentencing him to undergo RI for three months and to pay a fine of Rs. 1000, in default to undergo further RI for a period of one month, .

2. Shorn of unnecessary details, the facts leading to the case are as follows:

The incident took place way back in the year 1996. According to the prosecution case, on 11.6.1996 around 12 noon in the village road of village Betikela within the local limits of G. Udayagiri Police Station, the accused-respondent dealt two fist blows on the head of the deceased and consequently, the deceased succumbed to the injuries.

3. The defence took the plea of complete denial of the prosecution case.

4. The prosecution in order to prove its case, examined seven witnesses. PW1 is the doctor, who conducted the post-mortem examination, PW2 is a co-villager, PW3 is the constable, who carried the dead body for post-mortem examination, PW4 is the widow of the deceased, PWs 5 and 6 are the female witnesses who corroborated the evidence of PW4 and PW7 is the Investigating Officer. The prosecution has relied upon the documentary evidence marked as Exs. 1 to 8. The defence has neither examined any witness nor has relied upon any documents to substantiate the plea of denial of allegation of the prosecution.

5. Learned Sessions Judge after vivid discussion of the evidence in extenso and relying upon the evidence of the doctor, PW1, came to the conclusion that the prosecution has failed to substantiate its case under Section 302, IPC against the accused-respondent and acquitted him of the said charge. He, however, held that the prosecution has been able to prove the allegations with regard to the assault and therefore, held the accused guilty of the offence under Section 323, I PC and convicted him thereunder and sentenced him to undergo R.I. for three months and to pay a fine of Rs.1,000, in default to undergo further R.I. for a period of one month. Pursuant to the said order of conviction, the accused-respondent deposited the fine amount of Rs.1,000 vide Money receipt Sl. No.1099 dated 21.6.1997 before the learned Trial Court, copy of which is annexed to the note of argument submitted on behalf of the accused-respondent.

6. Mr. Zaffrullah, Additional Standing Counsel assailed the impugned judgment passed by’ the learned Sessions Judge, mainly on the ground that the Trial Court, has acted illegally with material irregularity in not properly appreciating the evidence available on record. He has contended that in view of the clear evidence of the doctor, PW1 coupled with the post-mortem report (Ex.1 ) that the deceased succumbed to the injuries, which is being corroborated by PW4 who is the widow of the deceased and PWs 5 and 6, who are female witnesses, it is a fit case where the learned Sessions Judge should have convicted the accused-respondent for the offence under Section 302, IPC.

7. Mr. A.K. Choudhury, learned counsel appearing for the accused-respondent strenuously urged that the contentions raised by the learned counsel for the State cannot be sustainable on the grounds that:

(a) The prosecution has miserably failed to make out a prima facie allegation under Section 302•, IPC against the accused- respondent and as such, there was absolutely no material to show that the fist blows given by accused-respondent were with the intention to cause death. In absence of any mens rea, the allegation so made by the learned State Counsel cannot be substantiated to reopen the matter at this stage.

(b) The learned Sessions Judge has the advantage to look to the demeanour of the witnesses while passing the order of acquittal in the interest of justice and further it is not the case where any of the findings has