KANDA @ AJEN MURMU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 11.10.2001 passed by the learned Sessions Judge, Mayurbhanj,Baripada in Sessions Trial Case No.111 of 2000 convicting the appellant under section 302 of the I.P.C. and sentencing him to undergo imprisonment for life

(2.) DECEASED is the uncle of the appellant. Deceased had two wives, P.W.1 and P.W.6 who is the informant. On 13.5.1099 at about 8.30 P.M. when the deceased was standing in front of his house, the appellant standing on the verandah of his house declared that he would kill the deceased. When the deceased challenged the appellant, appellant shot an arrow standing on the verandah of his house at the deceased. Having been struck by an arrow deceased started shouting in pain and walked a little distance when the appellant shot second arrow which struck the deceased on his chest. Thereafter deceased fell down. One arrow could be removed but the other arrow was broken from the middle. Sometime thereafter the deceased died because of injuries sustained by him. P.W.6 lodged F.I.R. and investigation was taken up. Charge -sheet was filed under section 302 of the I.P.C. and appellant faced trial for commission of the said offence.

(3.) IN course of hearing, prosecution examined seven witnesses to prove the charge but none was examined on behalf of the appellant. Appellant took a plea of alibi and stated that he was not present in his house at the time of occurrence. Out of seven witnesses examined on behalf of the prosecution, P.Ws. 1 and 6 are the two wives of the deceased and are eyewitnesses to the occurrence. P.W.2 is the brother of the deceased but is a post -occurrence witness. P.W.3 conducted postmortem examination and P.W.4 is the police officer who received the F.I.R. at the Police Station and registered the case. P.W.5 is the Investigating Officer and P.W.7 is the doctor who examined the appellant. Trial court relying on the evidence of two eyewitnesses coupled with the evidence of P.W.3 found the appellant guilty of the charge and convicted him thereunder. Shri Dash, learned counsel for the appellant assailed the impugned judgment on the ground that the occurrence took place in a dark night when nothing was visible. It was further contended by the learned counsel for the appellant that when the eyewitnesses admitted that it was a dark night and nothing was visible, it would be unsafe to rely on the evidence of such witnesses who claimed to have seen the appellant shooting two arrows. Learned counsel further alternately submitted that since it was a dark night and the appellant shot two arrows, one of which unfortunately struck on vital part of the body of the deceased and caused death, no intention to commit murder can be inferred. Therefore, even if the evidence of P.Ws. 1 and 6 is accepted, appellant could only be convicted for commission of offence under section 304 Part -II of the I.P.C.