ABHIMANYU SAHUKAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) Although the appellant was charged for an offence under section 302, he was found guilty under section 304 Part I of the Indian Penal Code (I.P.C. for short) and was sentenced to undergo rigorous imprisonment for four years by the learned Sessions Judge, Jaipur.

(2.) The prosecution case in short, is that there was previous litigation and enmity between the informant (P .W. 1), his father, deceased Braja Sahukar of village Alubadi on one hand and Simadri (D.W.1) and his maternal uncle, the appellant, of village Berangpadar on the other. On 23-2-1980 at about 8 a.m., P.W. 1 and the deceased were proceeding to village Durgi via Berangpadar. At the outskirt of the village D. W. 1 saw them and ran towards the village Basti. While running, he stumbled against a fence and fell down. On getting up, he entered inside the house of the appellant and raised bulla that he was assaulted by the deceased. At this, the appellant came out of his house, brought a lathi (M 0. I) from a nearby cow-shed and dealt a blow on the head of the deceased, who sustained a bleeding injury and fell down on the ground unconscious. He was removed to Durgi dispensary where first-aid was given and then he was taken to the Christian Hospital at Bissumcuttack. P.W. 1 lodged FIR (Ext. 9) at the police station and a case under section 307 IPC was registered. On 24-2-1980, however, the deceased succumbed to the head injury and the case was converted into one under section 302 I.P.C. Ultimately charge-sheet was submitted against the appellant for an offence under section 302 I.P.C. having committed the murder of the deceased.

(3.) According to the appellantTs defence, on the date and time of the alleged occurrence D.W.1 was returning from Bissumcuttack to his village Kalamguda via village Berangpadar. At the outskirt of the village Berangpadar, he met P.W.1 and the deceased. Seeing him, P.W.1 told the deceased to catch hold of D.W.1. When the deceased caught hold of D.W. 1, P.W. 1 brought a cycle chain from his bag and assaulted D.W.1 by means of it. D.W.1 snatched away the cycle chain from his hand which fell on the ground. Thereafter P.W. 1 took out a pole from the nearby fence and assaulted D.W.1 with it. While he was attempting to deal a second blow, the deceased intervened, when the blow struck his head accidentally. The appellant was not present at the time of the alleged occurrence and he did not assault the deceased by the Lathi (M.O.1).