KUBER KHADIA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal is directed against the Judgment and order of conviction and sentence passed by the Learned Additional Sessions Judge, Bolangir in Sessions Case No. 85/22 of 1996 for convicting the Appellant under Section 302 IPC and sentencing him to imprisonment for life.

(2.) THE case of the prosecution is that on the date of occurrence, i.e. on 13.6.1996 at about 4.00 p.m., the deceased -Dhubaleswar Parua had gone to Bagdol side by a cycle to bring fire -wood. In and around evening, Goal Parua (P.W.1), the brother of the deceased was informed by one Dukha Luha that the Dhubaleswar was lying by the side of the road near village Khasakhuta being injured. On receipt of the information, P.W. 1 and some others went to the spot and found Dhubaleswar lying in an unconscious state with injuries on his head and face. After administering water, he regained sense. On query he stated that the Appellant assaulted him by the blunt side of a tangia. Thereafter he was carried to the Belpada hospital where he was declared dead. P.W. 1 who is the brother of the deceased lodged oral report on 14.6.1996 before the OIC, Belpada Police Station and a case was registered under Section 302 IPC. After completion of investigation charge -sheet was filed for commission of the said offence.

(3.) THE Learned Counsel for the Appellant drew attention of the Court to the evidence of P.W. 6 and submitted that the sole eye -witness to the occurrence cannot be believed since in cross -examination he has admitted to be at a distance from where he could not have seen the occurrence. There is nothing on record to show that Dhubaleswar was in a fit state of mind to make a declaration and, therefore, the so -called dying declaration made before some witnesses cannot be accepted. There being no other evidence to connect the Appellant with the alleged offence, the Judgment of the Trial Court is liable to be set aside. The Learned Counsel for the State referring to the evidence adduced before the Court submitted that P.W. 6 is consistent in his stand that he had seen the assault on Dhubaleswar and in cross -examination he has nowhere admitted to have not seen the occurrence. The evidence of other witnesses who speak about the dying declaration, is also consistent and there is no reason why those witnesses should be disbelieved.