Conviction under Section 323 IPC confirmed based on credible eyewitness accounts, emphasizing the preference for direct witness testimony over medical evidence conflicting with eyewitness accounts.

JUDGMENT :

S.S. Mishra, J.

The sole appellant has assailed the judgment of conviction and order of sentence dated 25.09.2002 passed by the learned Sessions Judge, Khurda at Bhubaneswar in S.T. Case No. 27 of 2002 arising out of G.R. Case No. 3310 of 2000, whereby he has been convicted for offence punishable under Section 323 of IPC and has been sentenced to undergo R.I. for one year.

2. Heard Mr. Smruti Ranjan Dash, learned Amicus Curiae for the appellant and Mr. Jateswar Naik, learned Addl. Government Advocate for the State.

3. As per the prosecution report, there were two accused persons including the present appellant. One Amar Mohanty had accompanied with the present appellant and participated in the crime. The occurrence took place on 23.09.2000 and on the very next day, i.e. on 24.09.2000, the said Amar Mohanty committed suicide. Therefore, the present appellant was only stood charged for offence under Section 302 of IPC , although Section 34 of was also invoked.

4. The prosecution report, as per the FIR is that the deceased owned a three roomed shop house at Sahid Nagar weekly market (Hat), where two lessees namely, Bipin and Banchha were running shops. The deceased used to visit his shop house on the weekly market day. In the evening of 23.09.2000 he had been to Sahid Nagar weekly market and at about 9.25 p.m., while urinating by the side of a tubewell near the compound wall, the accused and his accomplice taunted him leading to an altercation between them. The deceased came to the shop room leased out to Bipin being followed by the accused and his accomplice. They pushed the deceased as a result of which his head came in contact with the door latch causing injury. The accused and the accomplice soured fist blows and kicks on the abdomen, chest and back of the deceased. Thereafter they dragged the deceased to the road in front of Arya Samaj building outside the market and there again they assaulted the deceased in the similar fashion by dealing fist blows and kicks on his abdomen, chest and back. P.Ws.3 and 5 and others sent the deceased home by an auto rickshaw of the P.W.1. The deceased succumbed to the injuries on 24.09.2000 while being shifted to the Capital Hospital, Bhubaneswar.

5. On the basis of the written report of the informant, police registered the case and investigation was conducted and charge sheet has been filed in the present case against the accused u/s.302/34 I.P.C.

6. The prosecution in order to bring home charges examined as many as eight witnesses and exhibited ten documents along with M.O.I & II.

7. The prosecution case stands on the legs of the evidence of P.Ws.3 and 5, those who are the eye witnesses to the occurrence. The learned Trial Court found corroboration of their evidences with the evidence of the doctor P.W.2 and the post occurrence witnesses, i.e., P.Ws.1 and 6. P.W.3 in his evidence has stated that at about 9.30 P.M. on 23.09.2000 he was in Sahid Nagar Market and found that Gopal Naik (deceased) was standing in front of his shop room. The present accused and another person (Amar Mohanty) picked up quarrel with Gopal Naik and pushed him, as a result of which he collided against the door frame of the house and sustained bleeding injury on the back side of his head over the left ear. He further deposed that he and other people intervened to separate the accused persons from the deceased, but the accused and his accomplice threatened them and started giving kick and fist blows on the abdomen, chest and back of the deceased Gopal Naik. They also caught hold of the hand of the deceased Gopal Nayak and dragged him to Arya Samaj situated at a distance of 50 cubits and there