LABA BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellant Laba Behera stands Convicted Under Section 304, Part of the Indian Penal Code (in brief IPC) and sentenced to undergo rigorous imprisonment for seven years.

(2.) BRIEFLY stated, the prosecution Case is that the grand -father of the deceased Govinda (hereinafter referred to as the deceased") after reclaiming a piece of government land had planted some mango trees. Prior to the occurrence, the appellant cleared up a portion of that land' with a view to cultivate the same for which there was hitch between the deceased and the appellant. On 11.10.1988 just before the evening when the deceased was returning from his field and was passing on the path in front of the house of the appellant, he (appellant), his wife accused No. 3 and their son, accused No. 2 attacked the deceased with axes, lathis causing severe breeding injuries on the head and other parts of his body. As' the deceased did not return to his house, his wife in anxiety sent her son (PW 1) to search for his father. PW 1 in course of search found his father (deceased) dying injured on the path in front of the house of the appellant. On enquiry from his father (deceased), PW 1 could" know that the appellant, his wife accused No. 3 and their son accused No. 2 assaulted him on account of which he had sustained bleeding injuries. PW 1 reported the matter at the focal police station. After the arrival of police, the deceased was removed to the local dispensary for treatment and thereafter he was taken to Deogarh Sub -divisional hospital for treatment. He, however, died at Deogarh hospital on 16 -11 -1988, After completion of investigator, charge -sheet was fried and the appellant along with his wife and son faced trial in the Court of Additional Sessions Judge, Sambalpur Under Section 304, Part T of IPC. The trial Judge found the appellant and his son accused No. 2 guilty Under Section 304 Part I, IPC and sentenced each of them to undergo rigorous imprisonment for seven years. Accused No. 3, the wife of the appellant, was found guilty Under Section 323 of IPC and was sentenced to undergo rigorous imprisonment for three months.

(3.) THERE is" no eye witness to the occurrence. The conviction of the appellant is based solely on the alleged dying declaration made by the deceased before his son PW 1.