GOREKHNATH GIRI Vs. STATE

JUDGEMENT

(1.) THE appellants have challenged the judgment dated 7.4.1998 in S.T. No. 21/1 of 1997/96 passed, by Shri N. Nayak, Addl. Sessions Judge, Rairangpur convicting appellant No.l Under Section 323 of the Indian Penal Code (for short 'IPC') and sentencing him to undergo rigorous imprisonment for one year and convicting appellant No. 2 Under Section 304 part (ii), IPC and sentencing him to undergo rigorous imprisonment for five years

(2.) BRIEFLY stated, the prosecution case is as follows : On 15.8.1995 at about noon when deceased Kuber Chandra Das, aged about seventy five years, took his cow from the cowshed and to tethered the same on the village lane in front of the house of the appellants at Baidaposi, Ward No. 2 of Rairangpur Town, within Rairangpur Town Police Station in the district of Mayurbhanj, both the appellants, who are brothers, protested the same and there was altercation between them. The informant (P.W. 1), son of the deceased, who was inside the house came out with his sister (P.W.6) hearing hulla raised by a neighbour (P.W.7) and found that both the appellants were assaulting the deceased who was lying on the ground and groaning by means of fist blows and kicks shouting at him to finish him since he was not paying any heed to their protest for tethering cattle in front of their house. When P.Ws. 1 and 6 tried to rescue the deceased, P.W. 1 was pushed away. When the deceased lost his consciousness, both the appellants fled away. Another neighbour (P.W.8) administered water to the deceased, but in vain. The deceased was then removed in a trekker to Rairangpur Hospital, but before reaching the hospital he breathed his last. P.W.I lodged written report (Ext.l) at the Rairangpur Town Police Station at about 12.45 p.m. that day and the S.I. of the said police station (P.W.9) treated the same as FIR, registered the case and took up investigation in the absence of the I.I.C. of the P.S. He examined witnesses, held inquest over the dead body of the deceased, sent the same for post mortem examination, visited the spot, seized two bicycles and two pair of Chapals, arrested both the appellants and sent appellant No. 2 for medical examination since he sustained some injuries. On his transfer, P.W.9 handed over charge of investigation on 28.8.1995 to another S.I. of the said police station (P.W. 10) who completed the investigation and submitted chargesheet Under Section 302/34, IPC against both the appellants who stood their trial. The trial Court convicted appellant No.l Under Section 323, IPC and appellant No. 2 Under Section 304, Part II, IPC while acquitting them of the charge Under Section 302/34, IPC. The defence plea is one of denial. According to the appellants, the deceased was tethering cow in front of their house, thereby damaging the verandah of their house in spite of their protest and at the time of the alleged occurrence when they were protesting the deceased, the latter dealt two blows by means of a goad on the face and right leg of appellant No. 2 and when appellant No.l pulled out appellant No. 2, the deceased fell down and lost his consciousness.

(3.) IN order to bring home the charge against the appellants, prosecution has examined ten P.Ws. in this case,.of whom P.W.I is the informant, P.W.6 is his sister and P.Ws.7 and 8 are neighbours. P.W.2 is the medical officer who conducted post mortem examination over the dead body of the deceased. P.W.3 is a witness to the seizure of a piece of brick, two pairs of Chapals, one spectacle and two bicycles. P.W.4 is another medical officer who medically examined appellant No. 2. P.W.5 is another neighbour who is an eye witness to the occurrence. P.Ws. 9 and 10 are the two investigation officers. The defence has examined none.