DELESWAR NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) Heard argument and the judgment is as follows:

(2.) Accused -Appellant Deleswar Naik and his father Godabari Naik faced Sessions Trial No. 69 of 1994 in the Court of Sessions Judge, Phulbani. They were charged for the offence under Sec. 302/34, I.P.C. on the allegation that on 30.12.1993 in the afternoon, they committed murder of Mandru Naik (hereinafter referred to as "deceased") by sharing the common intention. After a full dressed Trial, Learned Sessions Judge acquitted the co -accused Godabari Naik but found the Appellant guilty of the offence under Sec. 302, I.P.C. and accordingly, sentenced him to imprisonment for life and also to pay fine of Rs. 5,000/ -, in default, to undergo imprisonment for six months. The Trial Court observed that on realization of fine amount, the same was to be given to P.W. 3 Sarojini Naik.

(3.) It is the admitted fact between the parties that Godabari Naik and the deceased were amongst the children of Late Tupa Naik through two different wives. The Appellant is the son of Godabari. On the date of occurrence having learnt about a sale transaction of the family property, the deceased at about 1.00 P.M. went to the house of accused Godabari and challenged him. That resulted in a scuffle between both the brothers and during that time, the Appellant being present there, as a young man of 22 years, picked up a split wood and dealt three blows and one of that hit on the head and ultimately caused death of the deceased. of course, the accused persons denied to the allegation of assault by them and death of the deceased was due to that. Their defence plea was that in course of such scuffle between accused Godabari and the deceased, Sarojini, the widow of the deceased pelted a stone aiming at accused Godabari but accidentally it hit on the head of the deceased and therefore he died.