KANDHA SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant challenges the order of conviction under Sections 302 and 323, I.P.C. imposed on him by the learned Second AddI. Sessions Judge, Berhampur in Sessions Case No. 15/96 (S.C. No.93 of 1996 (GDC).

(2.) According to the case of the prosecution on 31.10.1995 at about 8 P.M. while the accused was engaged in a quarrel with one Han Bisoi (P.W.4) Sahadev Swain (hereinafter referred to as the deceased) intervened and separated them. At about 9 P.M. when the deceased after taking his supper went to purchase Bidi from a shop the appellant in front of his house came out and dealt a blow by means of one wooden Katua (M.O.I.) which hit on the head of the deceased and as a result of that the deceased suffered homicidal death. The wife of the deceased Goluni Swain and their daughter Birajini Swain (P.Ws. 2 and 1 respectively) when came to the rescue of the deceased, the appellant assaulted them and caused simple injuries. Charge was framed for the offences punishable under Sections 302 and 323, I.P.C. Surprisingly enough, charge for the offence under Section 307, IPC was also framed against the appellant for attempting to commit murder of the deceased. According to the prosecution when the deceased suffered instantaneous death and charge was framed under Section 302, IPC, therefore, framing of charge under Section 307, IPC was redundant.

(3.) In course of the trial, eight wit-nesses were examined by the prosecution and several documents vide Exts. I to 17 were exhibited besides the weapon of offence as material object, M.O.I. Out of the said witnesses, P.Ws. 1 and 2 are the injured as well as eye-witnesses to part of the occurrence and P.W.7 is the Doctor who conducted post-mortem examination and submitted the post-mortem report (Ext.9). P.W.5 is the Doctor who examined P.Ws. 1 and 2 and the accused and his wife and granted injury certificates Exts. 4 to 7. P.W.4 in course of the trial turned hostile to the prosecution and P.W.3 is a post occurrence witness.