MACHHU CHHURA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal arises out of judgment and order dated 9.8.2001 passed by the learned Additional Sessions Judge, Titilagarh in Sessions Case No. 55 (B) /21 of 1999. The appellant and one Sujan Naik were chargesheeted for commission of offences under sections 302 and 394 of the Indian Penal Code read with section 34 of the Indian Penal Code as well as section 27 of the Arms Act for com - mitting murder of one Hamirmal Jain by firing from a country -made pistol in course of committing robbery. Both of them al4o faced trial for the said offences. By the impugned judgment the co -accused Sujan Naik was acquitted of the said charge and the appellant was convicted for commission of the aforesaid offences. He was sentenced to undergo imprisonment for life under section 302/34 of the Indian Penal Code, to undergo RI. for two years under section 394/34 of the Indian Penal Code and to undergo R.I. for six months under section 27 of the Arms Act.

(2.) THE case of the prosecution as revealed from the record is that the deceased Harmirmal Jain and Shiba Prasad Jain @ Safar Jain (P.W. 15) were transactin gold ornaments in different weekly markets. Khirasindhu Bhoi (P.W. 13) was the servant of P.W. 15. On 29.12.1996 the said Shiba Prasad Jain (P.W. 15) alongwith his servant P.W. 13 in a T.V.S. Champ (two wheeler) and the deceased in a motorcycle left Sindhekela for Sardhapur weekly market. On the way at Surda Jore two persons, one of whom was tall with fair complexion (the present appellant) and the other who was dwarf with black complexion (accused Sujan Naik), being armed with lathi and pistols stopped them. First, accused Sujan Naik having two pistols in his hands told the deceased to get down from the two -wheeler. When the deceased resisted, he fired from a pistol pointing at the deceased and at that point of time when P.W. 15 held accused Sujan Naik, the present appellant is alleged to have dealt a lathi blow on him as a result of which he fell down and became unconscious. After regaining sense P.W. 5 found the deceased lying dead. He also found that his T.V.S. Champ was missing and the motorcycle used by the deceased was lying at a distance from the place of occurrence. He also found a sum of L 2,100/ - which had been kept in his bag with two bharies of gold were missing. Some residents of Sindhekela after getting information reached there and took P.W. 15 and the deceased to Sindhekela P.S. where P.W. 15 lodged the F.I.R. The case was registered for commission of offences under sections 394 and 302 of the Indian Penal Code On completion of investigation, charge -sheet was submitted for commission of the offences for which both the accused persons faced trial.

(3.) THE prosecution in order to establish the charge, examined as many as nineteen witnesses, but one was examined on behalf of the defence.