BHUBANESWAR SAHU Vs. STATE

JUDGEMENT

(1.) THIS appeal at the instance of the Appellant Bhubaneswar Sahu is directed against the judgment dated 18.3.1994 passed by the learned Sessions Judge, Kalahandi -Nuapada at Bhawanipatna in Sessions Case No. 48 of 1993 convicting the Appellant under Section 302, Indian Penal Code and sentencing him thereunder to suffer imprisonment for life.

(2.) DECEASED Jasoda Sahu is the wife of the younger brother of the Appellant. P.W. 2 Padmamukha Sahu is the informant. He is the son of the deceased. On 25.3.1993 at Kuturu Police Out Post P.W. 2 Padmamukha Sahu lodged a written complaint stating that on the previous day at about 11 A.M. in the morning the deceased was returning home from the mugdal field. At that time the Appellant Bhubaneswar Sahu was standing near the thrashing field of 'Gauntiaghar' with a lathi in his hand. On seeing the deceased being the mother of the informant, the Appellant rushed towards her and assaulted her with the said lathi on her head and other parts of the body. After the Appellant left the place on assaulting her, the deceased returned home and narrated the incident to the informant. On learning about the incident, the informant reported the matter to the "Yubak Sangha". Initial impression of the informant was that the injuries sustained by the deceased were not very serious. But, on the next day after the incident he found that the deceased was lying down and was unable to stand up and also could not talk properly. Being instructed by co -villager Hari Sabar, the informant lodged a complaint at the aforesaid Police Out Post. He apprehended that there was no chance of survival of the deceased and for this reason the informant took the deceased to the Doctor at Ratamamala. It was further complained in the said report that on an earlier occasion about 3 to 4 years prior to that the Appellant had assaulted the deceased and he was ultimately acquitted from the charge in connection with the earlier incident. Said complaint was forwarded to the Police Station where at about 9 A.M. on 27.3.1993 it was registered as a first information report under Section 302, Indian Penal Code against the Appellant. Some days thereafter on 28.3.1993 the deceased succumbed to her injuries while in the hospital.

(3.) AS already stated, P.W. 2 Padmamukha Sahu is the informant. He stated in the FIR about the oral dying declaration made before him by the deceased. However, from the FIR it appears that the oral dying declaration was made by the deceased when she was returning to her house from the place of occurrence. In his deposition before the trial court, P.W. 2 repeated in the same way, but there was little departure. In his evidence before the trial court P.W. 2 stated that having learnt about the assault on his mother from P.W. 4, he rushed to the place of occurrence and found that the Appellant was running away from the field with a lathi in his hand after assaulting the deceased, whereupon the deceased narrated the whole incident to this witness. This part of the story that he went to the place of occurrence and saw the Appellant running away with a lathi in his hand after assaulting the deceased or that thereafter the deceased reported this incident to this witness at the place of occurrence itself was not stated in the FIR. Rather in the FIR it was clearly stated that after being assaulted by the Appellant the deceased returned home and in her home narrated the incident to him.