SAMAL KISKU Vs. THE STATE OF ORISSA

JUDGEMENT

(1.) THE Appellant has been convicted under Section 302, Indian Penal Code by the learned Sessions Judge of Balasore and sentenced to Imprisonment for life. This appeal against the said conviction was originally heard by a Division Bench consisting of my learned brothers Acharya and Mohanti, JJ. and as they were equally divided in opinion - Acharya, J. holding that the prosecution had failed to establish its case and Mohanti, J. upholding the conviction - the appeal has been laid before me as provided under Section 429 at the Code of Criminal Procedure, 1898. As laid down by the Supreme Court in Babu v. State of Uttar Pradesh : A.I.R. 1965 S.C. 1467, and Hethubha v. State of Gujrat : A.I.R. 1970 S.C. 1266. I have to deal with the whole case.

(2.) TWENTY -two persons including the Appellant were sent up for trial on the allegation that on 17 -11 -1970 (at about 8 a.m.) they had murdered one Krishna Prasad Mohanty. His son Ratnakar (p.w. 2) purchased 50 decimals of land appertaining to plot No. 301 along with certain other property from one Surei Tudu by a registered sale deed dated 4 -5 -1970 ,(Exhibit -4) for a consideration of Rs. 2,000/ -. The family of the deceased possessed the property from the date of purchase and had raised paddy crop during 1970. The crop was ready for harvest. On 17 -11 -1970 the accused persons forming themselves into an unlawful assembly started cutting the stand 109 crop. P.w. 14 informed the deceased about such illegal cutting. Thereupon the deceased, his brother (p.w. 1), his son (p.w. 2), his nephew (P.w. 4) along with some others came to the land. P.ws. 2 and 4 were injured by arrow shots of some of the accused persons. When the deceased came near the field the Appellant said to have given a stroke on the head of the deceased with the back side of an axe (M.O. I). By the impact of the stroke the deceased fell down and the Appellant is said to have given a second stroke. Thereafter three of the accused persons assaulted him with lathis and the deceased was found dead a little later at the spot.

(3.) BEFORE the Division Bench counsel appearing on behalf of the Appellant amicus curiae took the stand that the evidence in regard to possession and raising of the crop had not been properly assessed by the learned trial Judge and. therefore, he had come to an erroneous conclusion that p.w. 2 and his father were in possession of the property and had grown the crop of 19,0. Similarly it was contended that the learned trial Judge overlooked the evidence of the doctor and came to an erroneous conclusion that deceased died of injuries caused by M.O. I and that too by the Appellant.