PRATAP MALLIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The Appellant has challenged the judgment and order dated 24.12.1987 passed by the learned 2nd Additional Sessions Judge, Cuttack in S.T. No. 49 of 1987 convicting him under Sec. 326, I.P.C. and sentencing him to undergo rigorous imprisonment for five years.

(2.) The case of the prosecution is that on 15.9.1986 at about 3 P.M. in village Balipur while the deceased Chaitan Rout was coming from Railway line side to house the accused -appellant followed him and when the deceased looked back, the accused death a 'Farsa' blow which hit on his left hand on the lower end of the fore -arm; as a result he "MARGALI MARIGALI". Immediately hearing the sound of the deceased, P.W. 1 rushed to the spot and found profuse bleeding from the left hand of the deceased and the accused running away with' the 'Farsa'. On query by P.W. 1, the deceased said that while he was returning home from the side of Mangala Chhak, the accused dealt the 'Farsa' blow on his person. Immediately the deceased was removed to his house and a Sari was wrapped around the place of injury and he was removed to Gurudijhatia hospital in a bullock cart being accompanied by P.W. 3, P.W. 7, Rambha Dei and P.W. 1. Thereafter, he was removed to S.C.B. Medical College and Hospital, Cuttack, but on the way the deceased succumbed to the injury at village Pithakhai. P.W. 1 lodged an F.I.R. which is marked as Ext. 4 at Gurudijhatia P.S. and accordingly a case was registered under Sec. 326/307 read with Sec. 34 I.P.C. against the present accused -appellant and the investigation was taken up. After completion of investigation, charge -sheet was filed against the present Appellant for commission of offence under Sec. 302 I.P.C. for having intentionally caused the murder of Chaitan Rout.

(3.) In order to bring home the charge, the prosecution has examined as many as 11 witnesses. Likewise, witnesses were examined from the side of the defence. Several documents and material objects were exhibited before the trial Court. The case of the defence is that of total denial of the prosecution case. Further plea of the defence was that on the date of occurrence at about 3 P.M. while D.W. 3 was returning to his house through the village lane, the deceased, his son Sarat Rout and Karunakar Rout came in a body being armed with iron Katua, Parsa respectively and assaulted D.W. 3 who raised hullah and hearing his hullah D.W. 1 and Ors. went running to D.W. 3 for his rescue, as a result of which D.W. 3 sustained bleeding injuries on the left side head and right side shoulder. Thereafter about 15 persons from SABARANA and ADIBASI people assembled there. There was a free fight between the parties. P.W. 1 is the informant and the brother of the deceased, who is the immediate post -occurrence witness and took the deceased to hospital. P. Ws. 2 and 4 have their residence nearer to the place of occurrence and they are the eye -witnesses. P.W. 3 is a post -occurrence witness and is the witness to inquest. P.W. 5 is the Medical Officer who conducted post mortem over the dead body of the deceased. P.W. 6 is the Revenue Inspector. P.W. 7 is the witness to the seizure of the blood -stained earth from the house of Gandharb Mallik and also a witness to the seizure of 'Farsa', M.O.I, i.e., the weapon of offence. P.W. 8 is the witness who has stated before the police that he had seen the son of the present Appellant throwing a 'Farsa' to the corn field of Gandharb Mallik. But she did not support her statement during her examination in Court for which she was cross -examined. P.W. 9 and P.W. 10 are the witnesses to the seizure of blood -stained Sari, M.O.II, which was wrapped around the place of injury of the deceased. P.W. 10 identified the dead body of the deceased before the Medical Officer. P.W. 11 is the Investigating Officer. D.W. 1 mostly speaks about the case of the defence and also claims to be the injured in the alleged incident narrated by him. D.W. 2 narrates the circumstances under which D.W. 1 sustained injury at the instance of the deceased and his friends. D.W. 3 is the injured and D.W. 4 is witness to the alleged occurrence as, unfolded by the defence. D.W. 5 is the Doctor who examined the defence witnesses.