FAKU ALIAS FAKIR KHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Appellant (hereinafter referred to as the accused') has challenged the judgment dated 5 -9 -1994 passed by Shri R.K. Dash, Sessions Judge, Cuttack (as his Lordship then was) in Sessions Trial No. 426 of 1993 in which he was convicted under Section 304, Part II of the Indian Penal Code (for short 'Indian Penal Code') and was sentenced to undergo rigorous imprisonment for a period of three years.

(2.) PROSECUTION case, briefly stated, runs as follows: On 29 -9 -1991 at about 8 p.m. the deceased, a resident of Talatelenga Bazar under Purighat police station of Cuttack Town was going to take his bath in river Kathjori. It is alleged that the accused obstructed him on road and abused him in filthy language near Nrusinghanath Math and threatening to finish him, mercilessly assaulted him on his chest, head, stomach and back, as a result of which froth came out of his mouth. The deceased was immediately taken to the S.C.B. Medical College -Hospital, Cuttack for treatment where he was admitted. It is alleged that the accused was searching for the deceased in the morning of 29 -9 -1991 (the date of the occurrence). On 1 -10 -1991 the informant (P.W. 1) lodged the written report about the occurrence before the I.I.C. of Purighat police station who registered the case under Sections 341 /325/506, Indian Penal Code and directed one Sub -Inspector (P.W. 6) to take up investigation. During investigation, P.W. 6 examined witnesses, visited the spot and went to the hospital where the deceased was under treatment, but could not examine him since the deceased was in coma stage. P.W. 6 arrested the accused on 4 -10 -1991 and forwarded him to Court in custody. On 18 -1 0 -1 991 the deceased succumbed to the injuries in the hospital and here the case was converted to one under Section 302 I.P.C. On receipt of information regarding death of the deceased at the hospital, one A.S.I. of Mangalabag police station held inquest over the dead -body of the deceased and sent the dead -body for post -mortem. On his transfer from Purighat Police Station, P.W. 6 handed over charge of investigation to his successor, who completed the investigation and submitted charge -sheet under Section 302 Indian Penal Code against the accused who stood his trial, but he was found guilty under Section 304, Part II, Indian Penal Code and was convicted thereunder.

(3.) IN order to bring home the charge, prosecution has examined six witnesses in all, of whom P.W. 1 is the informant, P.W. 2 is the medical officer who conducted autopsy over the dead -body of the deceased, P. Ws. 3 and 4 are two eye -witnesses to the occurrence, P.W. 5 is the younger brother of the deceased who has not supported the prosecution case stating that he was absent from the house on the date of the occurrence and P.W. 6 is the investigating officer.