AKHIL BHOI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant herein calls in question the judgment of conviction and order of sentence passed against him in S.C. No. 35 of 1990 on the file of the Sessions Judge, Kalahandi. The learned Sessions Judge, Kalahandi vide the impugned judgment and order held the appellant guilty of the charge under Section 304, Part-II of the Indian Penal Code (for short "IPC") and sentenced him to undergo rigorous imprisonment for five years and pay a fine of Rs. 200/-, in default, to undergo further rigorous imprisonment for fifteen days.

(2.) Prosecution case placed before the Trial Court is that the deceased Shyama Bhoi and the appellant had got some ceiling surplus land adjacent to each other. On 23.06.1990 at about 7 a.m., the deceased allegedly cut the ridge of the appellant in spite of his objection. The appellant abused the deceased and gave lathi blows on his check and right arm, as a result, the deceased fell down and died Hearing the shouts of one Ramanath Bhoi (P.W. 2), the informant went there and found the appellant running away and he caused and caught hold the appellant and took him to the village where he confessed his guilt. Basing on the report of the informant, a case was registered, charge-sheet was submitted and the appellant was tried.

(3.) During course of hearing of the appeal, the learned counsel for the appellant contended that the learned Sessions Judge has not appreciated the evidence in proper perspective and believed the P.W. 2 who was an old man having faint eyesight and his evidence does not find any sort of corroboration and material witnesses have been withheld by the prosecution, for which, adverse inference should be drawn against the prosecution. He further contended that even though the appellant has not taken the plea of right to private defence the learned Sessions Judge has failed to consider that aspect although materials on record amply establish a case of private defence and for these reasons, the impugned judgment of conviction and order of sentence should be set-aside