BENU Vs. STATE OF ORISSA

JUDGEMENT

(1.) The two appellants stood charged under S.302 of the Indian Penal Code (for short, the 'Code') with having committed the murder of Choudhury Naik (hereinafter referred to as the 'deceased') by intentionally causing his death on March 25, 1980 at Dhanurjayapur in the district of Keonjhar. They also stood charged under S.323 of the Code for having voluntarily caused hurt to Bhaskar Naik (P.W.8). The acquitted co-accused Kandra Naik stood charged under S.323 of the Code for having caused hurt to Bhijha Naik.

(2.) To bring home the charges, the prosecution examined sixteen witnesses of whom P.Ws.1, 2, 7, 8 and 10 figure as witnesses to the occurrence. P.Ws.12 and 13 who where also examined as eye-witnesses, turned hostile and were put leading questions by the prosecution under S.154 of the Evidence Act and gave a go - by to the incriminating statements said to have been made by them in the course of investigation against the appellants and the co-accused.

(3.) On a consideration of the evidence, the learned trial Judge has found that the death of the deceased was homicidal in nature and that P.W.8 had sustained injuries as a result of the assault on his person. He has held the two appellants responsible for causing the death of the deceased, but the conclusion of the trial court is that the appellants could be convicted under S.304 read with S.34 of the Code for causing the death of the deceased and that one of the appellants, namely, Benu, would also be liable to be convicted under S.323 of the Code for valuntarily causing hurt to P.W.8. The co-accused Kandara Naik has been acquitted of the charge framed against him. For their conviction under S.304 read with S.34 of the Code, each of the two appellants has been sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- and in default of payment thereof, to undergo rigorous imprisonment for a period of six months. For his conviction under S.323 of the Code, the appellant Benu has been sentenced to undergo rigorous imprisonment for a period of six months.