RAJU @ SUBODH DAS MOHAPATRA Vs. STATE

JUDGEMENT

(1.) THE appellant assails his conviction under Sec. 302 I.P.C. and sentence of imprisonment for life.

(2.) THERE is no dispute that the occurrence took place on 27.6.1989 at 5.30 P.M. as alleged by the prosecution, when the appellant and his father and another brother (co -accused and acquitted in the trial court) started cutting bamboos from the clump on the boundary line in between the land belonging to the appellant and the deceased Sadanan Das Mohapatra, brother of Gajanan Das Mohapatra (P.W. 23). The prosecution came forward with a case that on the date and time of the occurrence, when the appellant started cutting bamboos, P.W. 23 and the deceased who claimed the said bamboo clump to be on their land protested the action of the appellant. At that time the appellant gave a Katari blow on the head of the deceased, as a result of which he sustained an injury on the head. He was taken to the Headquarters hospital, Balasore where he died at 5 .15 A.M. on 28.6.1989. The defence took the plea that the case was falsely filed against them on account of previous litigation and further it was pleaded in the 313 statement that the deceased Sadanan fell down on the stump and received the injury and died.

(3.) WE have gone through the evidence of P.Ws. 2, 10, 11, 12, 13 and 23. P.W. 2 being an outsider cannot be said to be an interested witness. He stated that on 27.6.1989 at about 5 P.M. the occurrence took place near the bamboo bush in front of the house of the deceased. Hearing the hullah he went to the spot and found the appellant Raju removing bamboos from the clump. This was objected by P.W. 23, brother of the deceased, who called the deceased to the spot and the latter also protested. The occurrence took place when a little thereafter the appellant started cutting the middle fence in between the baris of the parties. When this was protested by the deceased, the appellant gave. a blow by a Dauli on the left side head of the deceased who fell down on the ground. In the cross -examination he stated that when he heard the shout and visited the spot, at that time both the deceased and the appellant were quarrelling and the appellant and his brother after cutting the bam boos from the clump were trying to remove them. At that time, the deceased and his brother prevented him. This version of P.W. 2 has been corroborated by the other witnesses, P.Ws. 10, 12, and 23, brother of the deceased. P.W. 23 in para 2 of his examination -in -chief stated that he dissuaded the appellant from cutting the bamboos for which 'they entered into a hot discussion'. Thus it is clear from the evidence of all these witnesses that the appellant gave a Kalari blow on the head of the deceased causing the injury. Nothing has been elicited to disbelieve the testimony of the P.Ws. Now the point for decision is what offence the appellant did commit.