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PETITIONER: PRAMOD KUMAR MANTRI & ANR.

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT:       27/01/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                The 27TH DAY OF JANUARY, 1997 Present:               Hon’ble Mr. Justice K. Ramaswamy               Hon’ble Mr. Justice G.T.Nanavati Janaranjan Das and K.N.Tripathy, Advs. for the appellants Indrajit Roy and P.N.Misra, Advs. for the Respondent                          O R D E R      The following Order of the Court was delivered:                          O R D E R      Delay condoned.      Leave granted.      We have heard learned counsel on both sides.      By order  dated  November  8,  1996  the  petition  was dismissed as  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 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 his  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.  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 punishable 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  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 not the case  of the prosecution. Under these circumstances, the prosecution cannot  be said to have proved beyond reasonable doubt that  the appellants  shared the 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

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that there  was no  blood stain  outside the  house. Had the dragging really been there, there would be trail of blood.      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.