SURU ALIAS KRUPANIDHI BHOI Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this appeal, the appellant assails his conviction under Section 302 of the Indian Penal Code, 1860, hereinafter referred to as the "I.P.C." for brevity, in Sessions Case No.34/45 of 2001 of the Court of Addl. Sessions Judge, Sonepur.

(2.) CASE of the prosecution, in brief, is that on 27.08.2000 at about 6.30 A.M., the accused murdered deceased Pabitra Adbank in front of his house. F.I.R. has been lodged by the appellant himself at Dungripali Police Station. It appears from the record that on 26.08.2000 night, Duryodhan Adbank, son of the deceased had entered into the house of Biranchi Bhoi, the elder brother of the accused with a view to ravish his daughter Kumudini. Kumuduni shouted seeing the son of the deceased in her room. Thereafter, Duryodhan ran away from her house and was chased by the accused, his elder brother and others. He was caught and at the intervention of the villagers, the matter was subsided and son of the deceased was set free. On 26.08.2000, the deceased came to his house and heard about the incident. Next morning on 27.08.2000, the deceased went to the house of the accused and picked up a quarrel with his elder brother alleging that the elder brother of the appellant was falsely blaming his son to have entered into his house with a motive to ravish her daughter Kumudini. There was a quarrel and scuffle between Biranchi and the deceased. The deceased abused and threatened to Kill Biranchi and throttled his neck. At that point of time, the appellant brought out a sword from his house and with that sword, gave blow on the head of the deceased, as a result of the assault, the deceased died. Thereafter, the appellant went to the Dunguripali Police Station and lodged an F.I.R. before the Officer -in -Charge and law was set into motion and after completion of investigation, police submitted charge -sheet against the appellant under Section 302 of the I.P.C. The defence took the plea of denial in this case.

(3.) IN course of hearing, the learned counsel for the appellant submitted that evidence of P.W.8 reveals that P.Ws.3, 4 and 5 were not present at the spot, therefore, they cannot be relied upon as witnesses to the occurrence. It is further argued alternatively that there being grave and sudden provocation to the appellant, in the sense that the deceased himself went to the house of the appellant and started abusing the elder brother of the appellant and throttled his neck, the appellant assaulted the deceased by means of the sword. Hence, it is argued that it is at best a case under Section 304, Part -II of the I.P.C. Learned Addl. Government Advocate, on the other hand, supported the findings recorded by the learned trial Judge and prayed that the appeal be dismissed.