GOLAP NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The two appellants along with the absconding accused Litia Rautia alias Lakhan Rautia, as alleged, killed Digu Mundarl (to be described hereinafter as Tthe deceasedT) on August 22, 1982 by means of an axe and knife inside the house of the appellant Diliga after tying his legs by means of a Saree. The two appellants stood charged under section 302 read with section 34 of the Indian Penal Code (for short, the CodeT) for having committed the murder of the deceased in furtherance of their common intention, but have been convicted for commission of culpable homicide not amounting to murder under section 304 Part I read with section 34 of the Code and sentenced thereunder to undergo rigorous imprisonment for a period of seven years.

(2.) The offence was alleged to have been committed after a sudden quarrel or the quarrel, there was no satisfactory evidence. It admits of no doubt that the death of the deceased was homicidal in nature.

(3.) The order of conviction has been based mainly on the dying declaration said to have been made by the deceased before his brother (P.W. 1) and P.W, 3, the cousin of P.W. 1, besides the medical evidence and recoveries of some clothes from the two appellants suspected to have stains of blood which, on chemical and serological tests, were found to contain stains of human blood of AT group.