BRUNDABAN JENA Vs. STATE OF ORISSA

JUDGEMENT

(1.) ACCUSED has preferred this Appeal from Jail as against the order of conviction under Section 304, Part -II.I.P.C. and sentence of rigorous imprisonment for six years recorded by Learned Addl. Sessions Judge, Bhadrak in Sessions Trial No. 31/178 of 1995, arising out of G.R. Case No. 688 of 1995 of the Court of S.D.J.M., Bhadrak.

(2.) ACCORDING to the case of the prosecution, accused Brundaban Jena and deceased Nabaghana Jena are brothers. Amongst them, accused is elder and the deceased was younger brother. Their houses were adjoining to each other in the occurrence village. According to the case of the prosecution, on 2.6.1994 at about 5.30 A.M. when the accused went to cut a tree fallen to the share of the deceased brother, the deceased brother reported the matter to the Bhadralogs. Leenarani Jena, widow of the deceased came to the spot and protested and as retaliation, accused threw a Musadia, which hit Leenarani and caused injury. The deceased thus came upon the spot to protest and the accused dealt a Tangia blow, which resulted in the death of the deceased. The matter was reported to the police and after investigation and submission of charge -sheet, the accused was charged for the offence under Section 302, I.P.C. for committing murder of the deceased and under Section 323, I.P.C. for causing hurt to Leenarani.

(3.) TO substantiate that charge as against the accused, prosecution examined several witnesses, but except P.W. No. 3, other witnesses did not claim to be eye witnesses to the occurrence. It reveals from the evidence of P.W. 3 that both the accused and the deceased are related to him as maternal uncle being the brother of his mother. He narrated about the incident in the above indicated manner and that statement of P.W. No. 3 could not be discredited in course of cross -examination. Therefore, the Trial Court rightly accepted that evidence in proof of the charge that accused is author of the injury, which resulted in the death of the deceased. Leaned Addl. Sessions Judge taking note of the land dispute between the parties and the reported quarrels between the two brothers and infliction of the single blow at the spur of the moment found it not to be a case of murder punishable under Section 302, I.P.C., but a case of homicidal death punishable under Section 304 part -II, I.P.C. Accordingly, he convicted the Appellant and sentenced him to undergo rigorous imprisonment for six years. The Trial Court recorded that attendance of the widow of the deceased could not be secured because her where abouts is not known and therefore her evidence was dispensed with and because of that, the charge under Section 323, I.P.C. failed. Thus, this Court does not find illegality or error committed by the Trial Court for non -examination of the widow of the deceased as an eye -witness. After careful perusal of the entire evidence on record and the findings recorded by the Trial Court, this Court finds nothing to interfere with the impugned judgment of conviction and sentence and accordingly, the Jail Criminal Appeal is dismissed.