STATE OF ORISSA Vs. JAGABANDHU DOMB AND ANR.

JUDGEMENT

(1.) THE accused respondents Jagabandhu Domb and Dalibandhu Domb who are brothers were charged with the offence of having committed murder of their elder brother Sambaru Domb in course of a family quarrel among themselves on October 9, 1961 at village Dhangidail, district Koraput. They both were convicted under Sections 334 and 335, Indian Penal Code for having voluntarily caused hurt and grievous hurt on provocation and sentenced to one month's rigorous imprisonment and to pay a fine or Rs. 50/ - in default to rigorous imprisonment for another fifteen days. They both were acquitted of the charge of murder under Section 302, Indian Penal Code. This Government Appeal is against the said order of acquittal of both the accused respondents of the charge of murder.

(2.) THE prosecution case shortly stated is this : On October 9, 1961 at about 4 or 5 P.M. the accused persons assaulted the deceased with lathi and tangia as a result of which the deceased died. The quarrel was near the house of Jagabandhu and the deceased was chased by the accused respondent. It was near the house of P. W. 4 who had lodged the First Information, Report that the accused Jagabandhu gave a lathi blow, and the deceased fell down; then the other accused Dalibandhu gave tangi blows and the deceased died there. It is said that both the accused persons gave about 4 to 5 blows each. The deceased fell down and died on the spot. The prosecution relied on the statements before the Committing Court of eye -witnesses P. Ws. 4, 5 and 6 and. also on the statement of F. W. 8 Who immediately after the murder on being informed by the deceased's son went to the spot, saw the dead body and called the Panchayat, The witnesses however resiled from their previous statements before the committing Magistrate. The prosecution further relied on the extra -judicial confession of the accused persons before the Punchayat as deposed by P. Ws. 5 and 8. That apart, there was also confessional statement by both the accused respondents Jagabandhu and Dalibandhu before the Magistrate P. W. 1.

(3.) THE learned Sessions Judge, relying on the statements of P. Ws. 4, 5, 6 and 8 before the Committing Court, found that the accused Jagabandhu being armed with a lathi and the accused Dalibandhu being armed with an axe chased the deceased, and near about the house of P, W. 4 the accused Jagabandhu gave a blow on the head of the deceased as a result of which he fell down, and thereafter both the two accused persons gave 4 to 5 blows each by lathi and tangia respectively. The learned Sessions Judge thus accepted the prosecution version of the case. In spite of the said finding the learned Sessions Judge acquitted the two accused respondents of the charge under Section 302 Indian Penal Code and convicted them only under Sections 334 and 335, Indian Penal Code and sentenced them as aforesaid.