DHANIA NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) APPELLANT Dhania Naik has preferred this appeal from Dhenkanai Jail challenging his conviction and sentence passed by the Sessions Judge, Dhenkanai, in Sessions Trial No. 33 -D of 1978. The learned Sessions Judge has found him guilty under Section 302, Penal Code, and has sentenced him to undergo rigorous imprisonment for life.

(2.) THE prosecution case in brief is that Gura, Bonda and Sukra were three brothers and were living separately from each other. Accused is the son of Gura and deceased Cheru was the son of Bonda. Balia (P. W. 1) is the son of Sukra. Gura died leaving his wife Dangei Wife of Bonda also died. Thereafter Bonda went and stayed with Dangei treating her as his wife and enjoyed the usufructs of the lands which had fallen to Gura's share as well as his own share leaving his own son Cheru uncared for After the death of Bonda, accused also continued to enjoy the usufructs of the lands which, had fallen to Gura's share as well as Bonda's share. On 27 -9 -1978, at 7 P. M., the deceased requested P. W. 1 and P. W. 2 to accompany him to the house of the accused, where he would ask for his share of paddy from the accused. P. Ws. 1 and 2 acceded to the request of the deceased and accompanied him to the house of the accused. P. Ws. 1 and 2 remained outside whereas the deceased went inside the house of the accused and asked for his share of paddy which was flatly refused by the accused. A quarrel ensued between them whereafter P. Ws. 1 and 2 left the place being followed by the deceased. While proceeding on the village path, P. Ws. 1 and 2 heard the voice of the deceased to the effect "KAKA HO, DHANIA HANI -DELA". P. Ws.1 and 2 looked back and found deceased Cheru lying with cut injury on his neck and accused Dhania standing near him with a 'Farsa'. On seeing P. Ws. 1 and 2, the accused ran away with the 'Farsa'. P. Ws. 1 and 2 informed the Grama Rakshi and came to the police station on the next day early morning. On the oral report of, P.W. 1, the concerned police officer recorded the F.I.R. which was read over and explained to P. W. 1 and P. W. 1 affixed his thumb impression on the, same. The Investigating Officer then proceeded, to the spot and held inquest over the dead body and sent the dead body for postmortem examination. The doctor conducting post -mortem (P. W. 6) opined that the injury on the neck was sufficient in the ordinary course of nature to cause death. The accused was arrested on 29 -9 -1978 and while in police custody, he stated that he would give discovery of the "Tangi" (weapon of offence) and led the police to his house and gave discovery of the "Tangi" (M. O. I) which was seized under the seizure list (Ext. 5). P. W. 3 is a witness to the seizure. The said M. O. I was sent for serological test and on examination though blood was found on it, the Serologist could not opine whether the blood was human blood or not. After completion of investigation, charge -sheet was submitted against the accused under Section 302, Penal Code.

(3.) THE learned Sessions Judge did not accept the plea of the accused regarding deceased having illicit connection with the wife of P. W. 1 since no cross -examination was made on this point and there was no suggestion given to any of the witnesses in this regard. The learned Sessions Judge from the materials on record found a strong motive, inasmuch as Cheru was being deprived of his legitimate share from the property which was being forcibly enjoyed by the accused and accused did not want, to part with the same. He further found from the evidence of P. Ws. 1 and 2 that they heard the cry of the deceased "KAKA HO. DHANIA HANI -DELA" and immediately these P. Ws. saw the accused standing near the deceased, with a 'Farsa' in his hand. Recovery of "Tangi" (M. O. I.) at the in -, stance of the accused while the accused was under custody was taken into con -sideration. The learned Judge also took the finding of the Serologist that blood was 'detected on M. O. I into consideration and on consideration of these materials, held the accused guilty of murder and convicted him under Section 302, Penal Code.