GURUA NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE present Jail Criminal Appeal is directed against the judgment dated 12.12.2002 passed by the learned Sessions Judge, Sundargarh in S.T. No.215 of 1998 convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life.

(2.) THE prosecution case in brief is that on 26.05.1998 Bishnu Patra (P.W.1), the Gram Rakhi appeared before the S.I. of Tensa Out - Post and orally reported that on the previous night at about 9 P.M. when he was in his house, the appellant -Gurua Naik came to him and confessed before him that on 25.05.1998 at about 4 P.M., he and his wife were returning from his in -law's house. They were walking on the Rajabasa -Siliguda road. On the way, there was a quarrel between them, as a result of which the appellant lost his temper, picked up a stone from the road side and attacked the deceased on her head. She sustained bleeding injury on her head and died there. On the next day i.e., 26.5.1998 the Gram Rakhi (P.W.1) went to the spot and found the deceased lying there and a lot of blood had come out from her head. Then, he left the appellant -Gurua Naik with the Ward -Member and other villagers and proceeded to the Tensa Out -Post and orally reported about the incident to the Investigating Officer, who reduced the same into writing and sent the same to the Lahunipada Police Station for registration of the case. In course of investigation, the Investigating Officer examined witnesses and sent the dead body for post -mortem examination, seized incriminating articles, etc. After completion of investigation, the Investigating Officer submitted the final form under Section 302, I.P.C. against the appellant.

(3.) MR . Gouri Sankar Pani, learned counsel for the appellant submits that even if the prosecution case is entirely accepted, the case is not coming under the purview of Section 302, I.P.C., but at best the same can be a case under Section 304 Part I, I.P.C. being covered by Exception -4 to Section 300, I.P.C. Learned counsel for the appellant mainly relies on the evidence of P.W.3, who is an independent witness. Therefore, he prays the case may be converted to Section 304, I.P.C.