JAGANNATH MEHER Vs. STATE OF ODISHA

JUDGEMENT

(1.) THIS appeal has been filed by the appellant challenging the judgment dtd. 29.11.2003 passed by the learned Ad hoc Addl. Sessions Judge, F.T.C., Gunupur in C.T. No. 40 of 2002 convicting the appellant under Section 302 of I.P.C. and sentencing him to undergo imprisonment for life. The case of the prosecution is that on 12.4.2002 the informant -P.W.5 who is the son of the deceased -Purushottam Patra of Village -Bissam Cuttack made a written report before the S. 1 of Police, Bissam Cuttack Police Station stating therein that on that day at about 6.00 P.M. when he was at Bissam Cuttack Bazar his mother called him by shouting that some persons are assaulting his father. Thereafter P.W.5 rushed to the house from the bazaar side to know the incident, followed by his friends P.W.8 and some others. They entered into the house and found that one 'Dibiri' was burning and two unknown persons were assaulting the father of the informant with crow bar and chapel, as a result of which informant's father fell down and succumbed to the injuries. There was profuse bleeding from the head of the deceased and a plastic rope has been tied around the neck. Seeing the informant and others one of the accused namely Man bhanjan Mishra fled away and the present appellant was caught red -handed. On the basis of the F.I.R., lodged by the informant -P.W.5, Bissam Cuttack P.S. Case No. 38 of 2002 was registered and investigation was taken up. After completion of the investigation, charge sheet was submitted for commission of offence under Sections 302 /34 of I.P.C. against the appellant and the absconding accused.

(2.) THE prosecution in order to establish the charges examined as many as nine witnesses and exhibited several documents which were marked as Exts. 1 to 17. The materials seized were marked as M.O. I to M.O. XVII. Out of the witnesses examined by the prosecution P.W.5 was the informant. P.W.8 was the eyewitness to the occurrence. P.W.6 is the mother of the informant. P.W.7 was a witness to the inquest. P.W.1 was the then Constable attached to Bissam Cuttack Police Station and was a witness to the seizure some articles. P.W.2 was a witness to the seizure. P.W.4 was the Constable, who carried the dead body for postmortem examination. P.W.5 was the Doctor who conducted postmortem examination. P.W.9 was the Investigating Officer.

(3.) LEARNED counsel appearing for the appellant submits that though P.Ws. 5, 6 and 8 were the eyewitness to the occurrence but they have not stated before the Investigating Officer that the present appellant assaulted the deceased by means of a crowbar. He further submits that P.W. 6 has specifically stated in her evidence that after hearing the shout of the deceased she came to the spot, therefore, the accused persons assaulted the deceased after a sudden quarrel between the deceased and them. He also submits that the appellant has assaulted the deceased without any motive or intention and the incident took place at the spur of the moment, therefore, the appellant cannot be held liable for the offence under Section 302 of I.P.C. and at best can be held guilty for the offence punishable under Section 304, Part -I of I.P.C.