PARSURAM DHAL Vs. STATE

JUDGEMENT

(1.) The judgment and order dated 5th August, 1987 passed by the Sessions Judge, Balasore in S.T. No. 52 of 1987 convicting the appellant of the charge under Section 304 Part II of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for five years is assailed in this appeal.

(2.) BEREFT of unnecessary details, the facts of the case are that there was prior dispute among the informant family and the family of the appellant over demarcation of the boundary among their adjoining homestead lands and raising offence. On 22.11.1986 morning deceased Bairagi had called P.W. 2 Bansidhar Dandapat the head of village of the parties who discussed with the family members of deceased and appellant at an open space in front of the house of the deceased and decided that by putting a rope from the point of a 'Siju' tree upto the end of a wall, the parties might put the demarcating fence. While he was about to return from that place, at that juncture of time the appellant picked up a bamboo piece that was lying nearby and dealt a blow with that on the head of Bairagi. Bairagi having fallen down and become senseless with bleeding injuries P.W. 2 lifted him to the outer verandah of his house and a doctor was sent for. On the advice of the doctor, Bairagi was shifted to Basta P.H.C. The medical officer of that P.H.C. advised removal of Bairagi to the Balasore Headquarters Hospital, his condition being serious. At Balasore Headquarters Hospital Bairagi retained as a indoor patient for about 12/13 days and he expired on 3.12.1986. On the basis of oral FIR lodged by P.W. 1, the wife of Bairagi, at the Basta Police Station, which was reduced to writing, the criminal action was set in motion. The defence of the appellant was a complete denial of the occurrence.

(3.) LEARNED Counsel for the appellant forcefully submitted that there was no pre -meditation of the appellant to murder the deceased and that the appellant had dealt with only one blow on the deceased at the spur of moment and though the injury caused on deceased was not that grievous, because of delay and lack of proper treatment he succumbed. He argued that it is a case where the appellant may be acquitted of the charge as prosecution had totally failed to prove any mens rea.