LALITA BADNAIK Vs. STATE

JUDGEMENT

(1.) THE appellant stands convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life for having caused the death of his maternal uncle Sania Sisa (hereinafter described as 'the deceased') at about supper -time on November 7, 1980 at Muralaguda by stabbing him by means of a spear (M.O. II) on his back which ultimately resulted in his death on the day following and the motive for this murder was said to be the refusal by the deceased to part with a larger area of land for cultivation by the appellant who had been reared up by the deceased and had been given a portion of the land of the deceased for cultivation. The prosecution has relied on the evidence of two witnesses to the occurrence, namely, P. W. 4 Sukra Khilto and P.W. 5 Pitam alas Pitambar Khillo, the dying declaration made by the deceased before his brother (P. W. 1) and his wife (P. W. 2), the evidence of P. W. 2 that on hearing the cry raised by P. W. 4 that the appellant had stabbed the deceased, she came out of her house and saw the appellant moving away in the darkness and the recovery of M. O. II on the basis of a statement said to have been made by the appellant while in custody which, on chemical and serological test, contained human blood. Accepting the case of the prosecution, the learned trial Judge has found that the charge under Section 302 of the Indian Penal Code has been brought home to the appellant.

(2.) APPEARING on behalf of the appellant, Mr. Pati, has contended that the evidence of P. Ws. 2, 4 and 5 is not worthy of credence and there has been conflict between the statements made in the first information report (Ext. 7) lodged by the brother of the deceased (P. W. 1) and the evidence of P. Ws. 2, 4 and 5. He has submitted that the order of conviction cannot be sustained on the evidence. He has invited our attention to the fact that the appellant has not properly been examined under Section 313 of the Code of Criminal Procedure and no question has been put to him regarding the dying declaration or about recovery of M. O. II. The learned Additional Standing Counsel has supported the order of conviction.

(3.) THERE is evidence that the appellant had not been pulling on well with the deceased as the latter bad refused to part with a larger portion of his land for cultivation by the appellant.