KABI ALIAS BIDYADHAR SAMAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellant has been convicted under Part I of Section 304, Indian Penal Code and has been sentenced to rigorous imprisonment for three years and to a fine of Rs. 500/ - in default to R.I. for a further period of six months.

(2.) THE facts of the case may be briefly noted. Appellant Kabi alias Bidyadhar Samal is the younger brother of deceased Dhilia Samal. P. W. 5 is their father. P.W. 1 is the widow of the deceased and D. W. 1 is the wife of the appellant. At the relevant time P. W. 3 was working as a servant under the deceased and P.W. 4 was working as a servant under the appellant. The deceased and P.W. 1 were living in separate mess from the other members of the family, though in the same house. The appellant, D.W. 1, P.W. 5, appellant's mother Methi Dei and appellant's sister Landi were living together. The relationship between the two brothers was not good. On 5 -5 -1978 a calf belonging to the appellant destroyed some plants of the deceased. On the next day i.e. on 9 -5 -1978 in the afternoon the appellant's calf again destroyed pumpkin plants of the deceased on account of which the deceased expressed his anger. However, P.W. 5 supported the appellant on account of which there was an altercation between the deceased and his father P.W. 5. At that time D.W. 1 arrived at the place and complained that the deceased's servant, P.W. 3 had said obscene things about her to Landi. The appellant challenged P.W. 3 who denied to have said anything to Landi concerning D.W. 1. The appellant next gave two slaps to Landi and warned her not to say such false things, D. W. 1 further abused the deceased in extremely offensive language. D. W. 1 got enraged and there was exchange of offensive and obscene words between the deceased on the one hand and the appellant and D.W.1 on the other. At that time the appellant took out an axe and gave a blow with the sharp side of the axe on the left side of the deceased's neck as a result of which the deceased fell down and died at the spot. On the next day at 6 -30 A.M. P.W. 5 lodged F.I.R. Ext. 5/1 with P.W. 8, the officer -in -charge of the Police Station. P. W. 8 registered the present case and took up investigation. After completion of investigation charge -sheet was submitted against the appellant.

(3.) P .W. 6 is the doctor who had conducted post -mortem examination on the deceased on 11 -5 -1978 on police requisition. He had found one incised wound on the left side upper part of the neck. Muscles, atteries and veins at the neck were cut. According to P.W. 6, the injuries were ante mortem in nature and likely to have been caused by a sharp cutting weapon like an axe. Ext. 6 is the post -mortem report. P.W. 6 has further stated that the injuries on the deceased could have been caused by the axe, M.D.1, which had been sent to him by the police for his opinion. Ext. 7 is the written opinion of P.W. 6. In cross -examination P.W. 6 has stated that all the injuries on the deceased were the result of a single blow. The medical evidence clearly establishes that the death of the deceased was homicidal in nature.