SHYAMA SUNDAR BARIHA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This case has been listed today for orders on the bail application filed by the Appellant vide Misc. Case No. 60 of 2008. In course of placing argument, Mr. Pani, Learned Counsel for the Appellant requests to take up the Jail Criminal Appeal for disposal on the submission that virtually the Appellant has nothing to argue on the order of conviction, but he is to submit as to what offence he has committed and accordingly to argue about modification of the order of conviction, and sentence. Mr. Nanda, Learned Addl. Govt. Advocate submits that he has no objection if the appeal is heard and disposed of in course of hearing of the bail application. Thus, on the request at the Bar, we hear and dispose of the Jail Criminal Appeal in the following manner.

(2.) It is the case of the prosecution that there was previous ill feeling between the accused and the deceased when accused wanted to drag the daughter of the deceased (may be for the customary marriage purpose of the tribal people), but the accused prevailed upon and for that reason accused bore a grudge on the deceased. No much evidence has been tendered by the prosecution in that respect. Be that as it may, the further prosecution case is that in the night between 16th and 17th May, 2000 when the deceased and his wife Kaikei Bariha (P.W.2) were sleeping on the outer Courtyard in two separate cots, at about 1.00 a.m. on hearing the groaning sound of the deceased P.W. 2 woke up and saw that accused being armed with an axe and deceased sustaining a cut injury on his right arm. Then accused fled away from the spot. The other inmates of the house including P.Ws. 1, 3 and 4 gathered there and with the help of others they took the deceased to hospital for medical aid, but the deceased died. Police registered a case initially under Sec. 326, Indian Penal Code but later converted the same under Sec. 302, Indian Penal Code and submitted charge sheet. P.W. 6 is the doctor who conducted autopsy on the dead body of the deceased. In her statement P.W. 6 stated that in course of the post -mortem examination she found the following external injuries -

(3.) The case of the prosecution rests on the solitary eye -witness to the occurrence, i.e., P.W. 2 and she was not effectively cross -examined in the Court below. Mr. Pani, Learned Counsel for the Appellant argues that it is futile to argue on merit so as to doubt the prosecution case or to challenge the findings recorded by the Trial Court on the complicity of the Appellant. He further argues that when only one axe blow was dealt on the right arm of the deceased, i.e., below the tip of right shoulder, however grave that injury may be, but that does not indicate the intention of the accused to kill the deceased. Had the accused an intention to commit murder of the deceased, then such axe blow would have been dealt on vital part of his body like neck, head, etc. Accordingly he argues to set aside the order of conviction under Sec. 302, Indian Penal Code and to convict the Appellant under Sec. 304, Part -II of Indian Penal Code