KINA BEHERA Vs. THE STATE

JUDGEMENT

(1.) THE Appellant has been convicted under Section 302, Indian Penal Code for having murdered Joyakrushna Gadnaik and sentenced to imprisonment for life. He has also been convicted under Section 326, Indian Penal Code for having caused grievous hurt to Krupasindhu Naik (p.w.3) by a dangerous weapon and sentenced to R.I. for five years and to pay fine of Rs. 100/ -, in default to R.I. for six months more. The sentences are to run concurrently.

(2.) PROSECUTION case may be stated in brief. The deceased was the Secretary of the Grain Gola, of mouza Bounsapokhari in Bindol P.S. P.w.3 was a ward member of the village. There was scarcity of Water. The deceased, p.w.3 and some of the villagers including p.ws. 1, 2, 4, 0, 6 and 9 decided to renovate an old well called Kainthakna. Accordingly in the evening of 30 -5 -1965 they started digging the well. At about 6 a.m. on 31 -5 -1965 they resumed digging. At that time the Appellant arrived at the spot with an axe. He challenged the villagers as to why the dug -out earth was being thrown on his adjacent land. P.w.3 replied that the particular land on which earth was being thrown belonged to the Government and it was open to the accused to get it measured. P.w.3 used abusive language and asked the accused to get out. The accused gave a blow with the axe on the left side back of p.w.3. While be aimed further blows, p.w.3 obstructed the same with the help of a small bamboo, but the blows fell on the left side chin and the right leg of p.w.3. At that time deceased Joyakrushna came running to the place to save p.w.3. The accused gave an axe blow on the head of the deceased who fell down. He dealt two other blows on his left side back and right shoulder. P.w.2 came running, caught hold of the handle of the tangia and was able to snatch it away from the accused who left the place. P.w.1 went to the police station with the Choukidar (p.w.7) and lodged the F.I.R., ext. 1. P.w.3 was Bent for medical examination to Hindol hospital. As there was no doctor, he was sent to Dhenkanal hospital where his Dying Declaration was recorded by p.w.14 at 8.15 p.m. on 31 -5 -1965. Before the Committing Court the Appellant took the plea that he did not go to the spot of occurrence. In the Sessions Court he took the defence that on the date of occurrence while passing by the well he found that the dug -out earth was being thrown on his land. His protest went unheeded. P.w.3 asked him to get out. He instigated other villagers to assault him. P.w.2 gave him a push and he fell down. P.w.3 pressed his neck with his both bands. Joyakrushna gave him two/kicks and four fist blows. While he was trying to escape he found an axe lying nearby a heap of wood. He caught hold of the axe and brandished it. While so brandishing he repelled the attacks of the assailants and fled away. He was not in a position to say how the death of Joyakrushna and injuries on p.w.3 occurred.

(3.) BEFORE examining the validity of the aforesaid contention, it is necessary to dispose of the question whether the dying declaration of p.w.3, marked Y for identification by the learned Sessions Judge, is admissible in evidence. P.w.3 was examined by the doctor (p.w.16) who found the following injuries: