STATE OF ORISSA Vs. SADA NAIK

JUDGEMENT

(1.) PERUSED the judgment dated 5.8.1992 passed by the Sessions Judge, Koraput, Jeypore in Sessions Case No.372 of 1991.

(2.) THE brief facts leading to this Government Appeal, as revealed from the First Information Report, which was lodged by the deceased, are that on 10.8.91 while the deceased -Dauda Benia was returning from village -Thatapadar to his village after purchasing a fowl for his festival, the accused met him on the way and due to previous enmity, dragged him to a nearby Jhadi tree and assaulted him by means of an axe on his head, as a result of which Dauda Benia fell down with profuse bleeding from his head and the accused fled away with the axe. Laxman Benia, P.W. -1 brother of the deceased saw the occurrence while returning from the village and carried the injured to his house. Thereafter, the injured himself went to Koraput and reported the matter at Koraput Sadar P.S. He was medically examined at Koraput Government Hospital and on 16.8.1991 he died in his house. Initially, a case was registered under Sections 341/294/324, I.P.C., but ultimately charge sheet was submitted under Section 302, I.P.C.

(3.) IN order to prove its case, the prosecution examined as many as eleven witnesses and exhibited thirteen documents and two material objects. The trial Court, after evaluating the evidence on record, specifically the evidence of the doctor, who examined the deceased in the first instance, and the postmortem report, came to a finding that the injury caused to the deceased was not sufficient in ordinary course of nature to cause death. The doctor, who conducted the post mortem, had also opined that the deceased was suffering from some disease, probably T.B. in the Lungs. The wound, which got septic, could have aggravated the disease process and the death could be possibly due to embolism as a result of such aggravation. The trial Court also held that the death of the deceased was not homicidal. So, the question of the accused having killed the deceased does not arise. However, relying upon the evidence of the lone eye -witness (P.W.1) and the evidence of post -occurrence witnesses, namely, P.Ws.2 to 4, coupled with the medical evidence, the trial Court held that the accused assaulted the deceased on his head by means of the axe, M.O.I. Thus, it found the accused guilty for committing the offence under Section 323, I.P.C. and convicted him thereunder.