KUNDURU DHARUA Vs. STATE

JUDGEMENT

(1.) This Jail Criminal Appeal is directed against the judgment dated 3-4-1993 passed by the learned Addl. Sessions Judge, Bargarh in Sessions Trial Case No. 4/93 (No. 122 of 1992 of the Court of Sessions Judge, Sambalpur) convicting the appellant under Section 304, Part I, IPC and sentencing him thereunder to undergo R.I. for ten years and to pay a fine of Rs. 5,000.00 and in default to undergo R.I. for a further period of one year.

(2.) The facts of the case, in brief, are as follows :- In the morning of 30-3-1992 Rajendra Dharua, the deceased along with co-labourer Kanduru Dharua, the appellant, Shyamsundar Dharua, the PW 4 and Khyamanidhi Sahu, the PW 5 being equipped with spades and baskets went to work as labourers in connection with the connection of a culvert. While returning from the work site to their village Saipali at about noon they took alcoholic drinks and went to the village tank at Saipali for taking bath. Near the tank altercation ensued between the appellant and the deceased relating to castism and soon it took the shape of a dual between the two in course of which the deceased fell down. At that moment the appellant picked up the spade which was nearby and dealt a blow by the sharp side of its blade on the head of the deceased which resulted in his instantaneous death. PW 4 who was present at the spot ran to the village and informed about the incident to PW 3, the brother, of the deceased who rushed to the spot and found his brother lying dead in pool of blood. He immediately went to Brijapur Police Station and lodged the F.I.R. Ext. 6 on the basis of which a case was registered and incourse of investigation the accused was arrested. While in custody be made a statement leading to discovery and produced the spade (M.D. II), a towel (M.D. III) and a lungi (M.D. IV). After investigation police submitted charge-sheet against the appellant for an offence under Section 302, I.P.C. The case was committed to the Court of Session where the appellant stood charged for the offence under Section 302, I.P.C. to which he pleaded not guilty and claimed to be tried.

(3.) In course of hearing, the prosecution examined as many as seven witnesses out of whom PWs 4 and 5 are the two eye witnesses to the occurrence. PW 3 is the informant, PW 2 is a witness to the inquest over the deadbody of the deceased, seizure of the spade (M.D. 11) and the wearing apparels of the accused consisting of a towel and a lungi the M.Ds. III and IV respectively. PW 1 is a witness to the seizure of blood stained earth and the basket (MD. I) and PW 7 is the S.D.M.D. through whom the Medical Officer who conducted the autospy over the deadbody submitted the post portem report (Ext. 12) and PW 6 is the Investigating Officer. The accused, however , neither cited any witness in his defence nor adduced any documentary evidence in his support.