MURALI KUMBHAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 15.10.1988 passed by the learned Addl. Sessions Judge, Bargarh in Sessions Trial Case No.153/27 of 1987 convicting the appellant under Section 326 of the Indian Penal Code and sentencing him to undergo imprisonment for a period of three years and further sentencing him to pay a fine of Rs.500/-, in default, to under go R.I. for two months.

(2.) The case of the prosecution is that the deceased and the appellant are cousins. The house of deceased and the appellant are close to each other. For the purpose for drying cloths, the deceased and his family members placed a piece of wood on the wall of both the brothers. In the morning hour, in absence of the deceased, the appellant threw away the piece of wood and a quarrel followed between P.W.3 and the appellant. On return of the deceased in the evening, the matter was reported to him. Hearing about the incident, the deceased came out of the house and started shouting saying that in his absence, his family members have been misbehaved. At that point of time, the daughter of the appellant also came out of the house, started quarrelling with the deceased. While both the deceased and the daughter of the appellant were quarrelling among themselves, it is alleged that the appellant who was sitting on the verandah of the Grama Rakhi (P.W.8) picked up a brickbat lying on the road and threw at the deceased. Unfortunately, the brickbat (M.O.I.) hit the head of the deceased, as a result of which, he sustained fracture on his head and died at the spot. The incident was reported by P.W. 1, the son of the deceased, to the Officer-in-Charge, Sohela Police Station and the same was registered as an F.I.R. Ext.10. Thereafter, investigation was taken up and charge sheet was submitted for commission of offence under Section 302 of the Indian Penal Code. The prosecution examined thirteen witnesses to bring home the charge. The defence examined none. On examination of the evidence adduced, the trial Court held that the circumstances under which the occurrence took place, it cannot be said that the appellant had not intended to cause death of the deceased and, accordingly convicted him for commission of offence under Section 326 of the Indian Penal Code.

(3.) Shri Mahakud, the learned counsel appearing for the appellant challenges the findings of the trial Court on the ground that except P.Ws 1 and 3, rest of the eye witnesses cannot be believed. So far as P.Ws.1 and 3 are concerned, it is stated by the learned counsel that they being the son and wife of the deceased, their evidence should be examined carefully and they being interested witnesses, in absence of any corroboration from the independent witnesses, no reliance should be placed on their evidence. The learned counsel also submitted that the evidence would clearly shows a great provocation was from the side of the deceased as a result of which, the incident took place and even if P.Ws. 1 and 3 are believed, the conviction should be under Section 335 of the Indian Penal Code.