NABA MALI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The present revision petition has been filed against the judgment and order of the Second Additional Sessions Judge, Ganjam, Berhampur passed in Criminal Appeal No.5 of 1993 arising out of the judgment and order dated 3 1.1.1993 passed by the Assistant Sessions Judge, Chhatrapur in S.C. No. 5/1991 maintaining the conviction of the appellant under section 324 I.P.C. instead of section 307 I.P.C. and reducing the sentence to one year R.I. instead of three years R.I. and fine of Rs. 1000/- as held by the Assistant Sessions Judge, Chhatrapur.

(2.) According to the prosecution, the prosecution case in brief, is that on 29.9.1989 at about 4.30 P.M. Kishore Jena and Linga Mali were proceeding on a cycle from village Huma to Huma weekly market. At that time, accused came from their backside and gave a blow with his sword to Linga Mali on his head and returned towards Huma. Kishore Jena and Linga Mali got down from their cycle and took rest for some time and then returned to village Huma. At the house of Sarpanch, Raghunath Sahu, Harihar Malik, the father of Linga Mali saw the accused armed with a sword. While brandishing the sword the accused was shouting that his first attempt to kill Linga Mali though failed, but he will kill Linga Mali if he will find him for the second time. While he was so shouting, Linga Mali and Kishore Jena arrived there an at that time accused made another attempt to Linga Mali to give the second blow by the sword. The sword was snatched away from him by Raghunath Sahu. Thereafter, the accused escaped. Due to the head injury Linga Mali while being taken to Huma hospital, the accused again came with another sword giving out to take away the life of Linga but due to presence of witnesses he fled away on his cycle. Injured Lingaraj Mali was admitted to the hospital and Harihar Mali lodged written report at Huma Out-post. During investigation the injury report was received the bloodstained cloth of injured and the sword snatched away by Raghunath Sahu were seized and thereafter charge-sheet was submitted against the accused under section 307 of Indian Penal Code to stand his trial. Ten witnesses were examined by the prosecution and basing on the evidence of the injured his father, Harihar Mali and independent witnesses like Raghunath Sahu, Kishore Chandra Jena, which was corroborated by the medical evidence of the doctor Bibekananda Sadangi, the learned trial court convicted the accused and sentenced him as stated above.

(3.) The defence plea of the accused is one of complete denial of the charge and he further pleaded that the case has been foisted due to previous enmity for the incident which took place before two months prior to this occurrence in which Lingaraj assaulted him and caused fracture to his hand. Two defence witnesses were examined in support of the defence plea.