MINIAKA MASURI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant herein, calls in question the judgment of conviction and order of sentence dated 08.11.2004 passed against him in Sessions Case No. 32 of 2001 on the file of the Addl. Sessions Judge, Rayagada. By the impugned judgment, the learned Trial Court held the appellant guilty of the charge under Section 302 of the Indian Penal Code, 1860 (for short "the IPC") and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to undergo R.l. for six months more.

(2.) Prosecution case as placed before the Trial Court is that in the night intervening 25/26.06.2001, the deceased, who happens to be the uncle of the appellant, in a state of inebriation, was shouting in the village and when the father of the appellant (D W. 1) made protest to the same being his elder brother, he (deceased) assaulted him with a 'Thenga'. The appellant seeing the same, being enraged, assaulted the deceased with 'Thenga' (M.O.I.) causing injury on his chest and head, and the deceased succumbed to the injuries there. The appellant then with his father went to Mandingi Mala (PW. 1) who was in his guard hut in his field to guard his crop and confessed the guilt before him. PW. 1 then along with them came to the village and found the deceased to be lying dead and also Thenga' (M.O.I.) was there and in the morning following such date of incident. PW. 1 along with others reported the matter orally before the police at Rayagada Police Station, pursuant to which the F.I.R., Ext. 1/1 was drawn by the police and investigation was taken up. The police conducted investigation and during course of investigation found the report to have substance and, as such, placed charge-sheet against the appellant under Section 302 of IPC. The S.D.J.M. Rayagada committed the case to the Court of Sessions. The Trial Court on the basis of materials placed framed charge under Section 302 of IPC against the appellant, but the appellant pleaded not guilty to the charge and claimed to be tried. Prosecution, as such, examined 8 witnesses, exhibited 11 documents and 1 Material Objects, i.e., Thenga (M.O.I.) to substantiate the charge framed against the appellant. The appellant, who had taken a plea of denial and false implication examined his father-Miniaka Kurma (DW. 1) as a defence witness in support of his defence plea. On conclusion of the trial, the Trial Court held the appellant guilty of the charge under Section 302 of IPC and sentenced him as stated earlier.

(3.) Learned counsel for the appellant contends that the impugned judgment of conviction and order of sentence as returned by the Trial Court are unsustainable, as according to him, the evidence of the witnesses implicating the appellant to be the author of the crime, is unworthy of credence. The learned counsel further contends that even if the case of the prosecution case is accepted in its entirety, the same does not attract the ingredients of the charge under Section 302 of IPC, as during course of a quarrel, without any premeditation, the appellant in heat of passion said to have dealt a blow with a 'Thenga' on the head of the deceased. The same can at best attract the ingredients of an offence under Section 304, Part II of IPC and the appellant being a tribal, a lenient view with regard to the sentence be taken against him.