ARKHITA BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of conviction and sentence passed by the learned Sessions Judge, Dhenkanal -Angul, Dhenkanal in S.T. No. 175 of 1993 convicting the Appellant for commission of offence under Section 302 of the Indian Penal Code (in short 'I.P.C.') and sentencing him to undergo R.I. for life.

(2.) THE case of the prosecution is that Appellant is the father -in -law of the deceased Hadibandhu Balia. The deceased had married the eldest daughter of the Appellant. The other daughter, P.W.7, was married P.W.6 in the same village and the house of the deceased and his second son -in -law are adjacent. The Appellant after death of his wife was depending for his food on both the daughters having divided his landed properties into two shares and distributed the same between both the daughters. The Appellant and deceased were not pulling on well and on 25.7.1993 at about 5 P.M. in the evening, an altercation ensued near the tank in front of the house of the deceased. In course of altercation, the deceased dealt a blow by means of a stick on the head of the Appellant and the Appellant immediately thereafter proceeded to his house, came armed with a tangi and dealt successive blows to the head and neck of the deceased resulting in serious injuries. P.W.5, who is the son of the deceased, called P.Ws. 6 and 7 and they came and saw the incident and caught hold the Appellant and tied him with a rope. P.W.4 at the request of P.W.6 went to the police station and lodged the F.I.R. and a case was registered for commission of offence under Section 307 I.P.C. The deceased having died on the following day, the case turned to an offence under Section 302 I.P.C. and ultimately investigation was taken up. On completion of investigation, charge -sheet was submitted for the said offence.

(3.) MRS . Panda, the learned Counsel appearing for the Appellant challenges the legality of the judgment of the trial Court on the ground that the deceased was the aggressor and he first assaulted the Appellant by means of a stick on his head and, thereafter, the Appellant out of anger assaulted the deceased, which resulted in the unfortunate incident. According to the learned Counsel, there being grave and sudden provocation at the instance of the deceased, the Appellant caused death of the deceased. Accordingly, the learned Counsel further submits that the Appellant should have been convicted for commission of offence under Section 304 -I, I.P.C. The learned Counsel for the State referring to the evidence adduced before the trial Court submitted that the Appellant has been rightly convicted for commission of offence under Section 302 I.P.C. having assaulted the deceased by means of an axe as is evident from the deposition of the eye witnesses to the occurrence as well as the post mortem report.