BHOBANA NAHAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 27 10 1990 passed by the 2nd. Addl. Sessions Judge. Berhampur, in S. C. No. 14/90 (S. C. No. 100/90 GDC) convicting the appellant (hereinafter called 'the accused' under section 302 of the Indian Penal Code (in short 'I. P. C.') and under section 27 of the Arms Act, 1959 and sentencing him to undergo rigorous imprisonment for life under section 302, I. P. C. No separate sentence has been passed under section 27 of the Arms Act.

(2.) BRIEFLY stated, the prosecution case is as follows : The occurrence, as it reveals from the F. I. R , was the outcome of a family feud. The accused Bhobana Nahak is the elder brother of the informant Tonkia Nahak (p. w. 1) with whom there was long standing dispute over their paternal landed property in village Pankalpadai and the residential house in village Karapada. On 28 1 1990 the accused engaged alabourer named Keshaba Reddy of village Jagannathpur to pull down the straws of the disputed house to which the informant protested. The accused then came out with his licensed gun and threatened saying that whosoever would obstruct him from pulling down the straws, he would kill him. Hearing this, the family members of the informant kept mum and stayed on their verandah. The accused thereafter went towards the paddy pit of Benu Nahak; loaded his gun and told the informant 'HEITI DEKHE MARILI' (Look, I am shooting) to which the informant replied 'JAA TO GHARE PHUTAIBU' (Go, shoot at your home). Hearing this, the accused told that he would not get peace unless he killed them and saying so, the accused aimed his loaded gun towards the verandah of the informant and fired a shot which hit Brajamohan Nahak, the son of the informant, who was then standing on the verandah of their house. Brajamohan on receiving the gun shot injury on the left side of his chest fell down. Hira Nahakani (p. w. 2), the wife of the deceased Brajamohan, Satyam and others saw the occurrence as revealed from the F. I. R.. Thereafter the deceased was administered water and was shifted by a rickshaw to the Chatrapur Govt. Hospital where the informant orally reported the incident to the A. S. I. of Police (p. w. 7), who reduced the same to writing (Ext. 4). On being referred by the doctor (p. w 6), the deceased was shifted to the M. K. C. G. Medical College Hospital, Berhampur, where he succumbed to his injury on 29 1 1990. P. w. 7, the Investigating Officer, on recording the F.I.R. (Ext. 4) at Chatrapur Government Hospital on 28 1 1990, examined p. ws. 1 to 4; recorded the statement of the deceased Brajamohan (Ext. 8); seized blood stained earth, sample earth and a discharged cartridge from the spot, i. e., the verandah of p. w. 1, where the injured was said to have fallen down after receiving the injury and at about 9;45 p. m. seized one S. B. B. L. gun bearing the engraved No. 57894 (M. O. I.) and a live cartridge (M. O. III) from the chamber of the said gun on being produced by the accused. P. w. 7 also sealed the muzzle and the chamber side ofthe barrel for chemical examination and prepared the spot map (Ext. 9). Thereafter p. w. 7 handed over the charge of investigation to p. w. 8, the Officer in charge of Chatrapur P. S., who conducted necessary investigation, sent the seized articles for chemical examination and finally submitted the charge sheet against the accused under section 302, I. P, C. and section 27 of the Arms Act, 1959. The accused stood his trial and was convicted as stated above.

(3.) IN order to prove the charge, the prosecution examined as many as eight witnesses, of whom, p. w. 1 is the informant and the father of the deceased; p. w. 2 is the wife of the deceased; p. w. 3 is a villager; p. w. 4 is the brother of the deceased, P. ws. 5 and 6 are the doctors and p. ws. 7 and 8 are the I. Os, None was examined on behalf of the accused.