STATE OF ORISSA Vs. UGRESAN MISHRA

JUDGEMENT

(1.) Both the appeals arise out of the common judgment dated 15 -2 -1986 of the learned Sessions Judge, Phulbani convicting the accused Under Section 304, Part -lI, IPC though he was originally charged Under Section 302, IPC. Government Appeal is preferred for enhancement of the sentence, while the Criminal Appeal has been preferred assailing the order of conviction and sentence.

(2.) PUT briefly, prosecution case may be stated as follows: Both the parties belonged to one big family. The informant Byomakesh (PW 1), Hrushikesh and the deceased jagadish are three brothers. PWs 4 and 7 are respectively the son and daughter of Jagadish. Accused Ugresan is one of the four sons of Hrushikesh. The incident took place in the morning hours, at about 8.30 a, m. on 3 -6 -1985. The, deceased Jagadish had been to the nearby jagannath temple for Sevapuja and PW 7 Susama, her daughter went along with her father. At that time, PW 4 Binayak was playing with some boys in course of which he picked up quarrel with Umesh, the brother of the accused. Due to the quarrel Ramesh another brother of the accused chased PW 4 to assault, and out of fear PW 4 entered inside his house, Ramesh dragged him Outside and assaulted. On receipt of news of such an incident, the deceased who was in the temple returnel home followed by his daughter PW 7. It is alleged that thereafter jagadish the deceased being annoyed picked up . a Khata. Bahi (M. O. II) (a piece of sized wooden Bar), went to the house of Ramesh. and there the deceased challenged him -saying as to why he assaulted his - son -. On such challenge being given Ramesh came cut of his -house and there was altercation and exchange of hot words between both of them, It is alleged that at that point -of time, she accused Ugresan came cut with a. Khata Pua (M. O. I) from another, direction from behing the deceased), and dealt a blow on the back side of the head of the deceased; as a result off which the deceased fell down with bleeding injuries and' unconscious. The doctor, PW 6 of the Primary Health Centre Was sent for and he came, and saw the injured and advised him for removal to the Sub -Divisional Hospital, Sonepur. The deceased was thereafter removed to Sonepur hospital, where be succumbed to the injuries at about 3 P.M. one the same day. Information was lodged by PW -1 at Manamunda P. s - PW 10 the Officer -in -charge, Manamunda P.S registered a case and took up investigation. He got news of the death of the deceased and proceeding to Sonepur hospital held inquest over the dead body of the deceased and des patched the dead body for post mortem examination. Next day, i. e. on 4 -6 -1985, at 5.30 A. M. he, visited the spot and took various steps in the investigation of the case including examination of the witnesses and seizure of blood stained and sample earth from the 'spot and the weapon of offence. On completion of investigation, he submitted charge -sheet against the accused,, who stood his trial for the offence under Sec 302, IPC for the murder of the deceased Jagadish. The learned Sessions judge, however, on consideration of the facts and circumstances, of the case and situation in which the incident took place, convicted the accused of the offence Under Section 304, Part -lI, I P. C. and convicted him thereunder.

(3.) IN support of its case prosecution has examined as many as ten witnesses of whom PW 1, the brother of the deceased is the informant, PWs 2 and 3, the labourers of the parties examined as eye witnesses, PWs 4 and 7 the son and daughter respectively of the deceased examined as eye witnesses to the occurrence, PW 5, the Assistant Surgeon, Sonepur hospital who conducted autopsy on the dead body of the deceased, PW 6, the doctor, Bausuni P. H. C. who was called in to see the injured immediately after the incident, PW 8 a seizure witness, PW 9 the constable carrying the dead body for post mortem examination, and PW 10 is the I. O. in the case.