NIMALA ARJUNA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The Court of Session has held the case of the prosecution established that during the night of the 18th119th April, 1980, the appellant killed Nimalu Sukru (hereinafter referred to as the deceased) by stabbing him by means of a knife while both of them were sleeping on the Rayagada-Gunupur P.W.D. road near the Forest Check Gate at Penkam in the district of Koraput, with the appellants wife (P. W. 3) sleeping nearby, as the deceased was said to be the paramour of his wife and has convicted him and sentenced him to undergo imprisonment for life under section 302 of the Indian Penal Code. The plea of the appellant was one or denial and false implication. No one had witnessed the actual stabbing on the person of the deceased by the appellant. The case of the prosecution rested on an oral dying declaration made by the deceased naming the appellant as his assailant and some hems of circumstantial evidence.

(2.) It is not disputed at the Bar that the deceased had died a homicidal death. Mr. R. K. Mohanty, appearing for the appellant, has sustained that the evidence with regard to the dying declaration could not be accepted and the evidence in that regard had not even been referred to and relied on by the trial court and the other circumstances had not been established and even if established, would not be incompatible with the innocence of the appellant. The learned Additional G. A. has supported the order of conviction.

(3.) The prosecution has failed to establish any motive on the part of the appellant to kill the deceased. The evidence of P.W. 3 would show that the appellant had cordial relationship with the deceased. Absence of proof of motive would keep the Court on its guard to carefully scrutinise the prosecution evidence before its acceptance.