ISHWAR BEHRA Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against conviction of appellant under Section 302 Indian Penal Code and sentence to undergo rigorous imprisonment for life. He was also charged under S. 307, I. P.C. for attempting to cause death of P.W. 4 and P.W. 6, but he has been acquitted of the said charge on benefit of doubt.

(2.) THE prosecution case, as found from the facts, is as follows. The appellant and the deceased belong to village Kothabhuin in Purunakota Police Station District Dhenkanal. Plot No. 908 measuring about 3 decimals belongs to the appellant. The villagers of Kothabhuin were recorded as Sikimi tenants in respect of A0.01 decimal out of the aforesaid A0.03 decimals. The paddy Gola of the villagers was on the aforesaid A001 decimal of land which had collapsed 5 to 6 years back. The house and the Bari of the appellant are adjacent to the land. Appellant had included that area into his Bari by putting fence and had also constructed his cowshed on the same and had planted trees. The villagers wanted to construct a Kothaghar on the aforesaid A0 01 decimal of land. Accordingly they got the land measured by the Revenue Inspector of Tainshi on Friday 11 -2 -1972. After measurement appellant voluntarily removed the fence, put another fence on his own land and cut down the fruit bearing trees in order to enable the villagers to construct the Kothaghar. On Saturday the -12th February, 1972, lay -out for the construction of the Kothaghar was given and construction started. On Sunday, 13th February, morning the deceased and P.Ws. 6, 9 and 10 were engaged in construction of the Kothaghar. P.Ws. 9 and 10 were standing on the beam of the structure while P.W. 6 and the deceased were assisting them in construction standing on the ground. All on a sudden the appellant came out of his house with a Tangia (M. O. I) and dealt a blow on the neck of the deceased with the sharp side of the Tangia and as a result of the same the deceased fell down on the ground with face downwards. Appellant immediately thereafter dealt a blow on P.W. 6 and started running. He then raised the axe to assault P.W. 9 but on imploration he desisted from assaulting P.W. 9. Thereafter the appellant dealt a second blow on the neck of the deceased and proceeded towards the village. On the way he also dealt another blow on P.W. 4 and was proceeding towards Angul Police Station while he met the Grama -rakhi (P.W. 3) and being persuaded by the Gramarakhi he accompanied P.W. 3 to Purunakota Police Station. The Gramarakhi P.W. 3 got the report written out by the Sarpanch (P.W. 1) and proceeded to Purunakota Police Station along with the appellant. The Officer -in -charge was absent. So the Constable (P.W. 2) who was in charge of the Police Station recorded the station diary entry (Ext. 4) copying out the contents of the written report (Ext. 1) produced by P.W. 3. The Officer -in -charge (P.W. 18) returned to the Police Station in the afternoon on the same day and treated Ext, l as F. I. R. and took up investigation. The Police Station is situated at a distance of 12 miles from the spot. The Investigating Officer reached the spot on 14 -2 -1972 at about 7 -30 a. m. After completing the investigation he submitted charge -sheet under Section 302 and 324, Indian Penal Code, but appellant was charged under Sections 302 and 307, Indian Penal Code.

(3.) THE doctor, P.W. 7 held postmortem examination on 15 -2 -1972 at 11.00 a.m. Ext. 5 is the post -mortem report. He found the following injuries on the dead body.