SOMNATH DAS Vs. STATE

JUDGEMENT

(1.) THE appellant has been convicted under Section 302, I, P. C. and sentenced to imprisonment for life. The prosecution case may be stated in brief. The accused and the deceased were cousins. They lived in adjacent houses, and were not pulling on well. On 9-6-1965 at about 6 P. M. they came in front of their respective houses in the village Danda and started quarrelling. The accused held a Kati-Katua and the deceased held a stick. The son of the accused had a Kati. In course of the quarrel Narasingha, the son of the accused, threw a Kati towards the deceased. The deceased warded off the Kati with his stick and it fell down near him. While he attempted to pick up the Kati, the accused gave a stroke with his Kati-Katua on the head of the deceased. The deceased received a severe cut injury and fell down senseless. The wife and the son of the accused caught hold of him and dragged him towards their house. The head of the accused struck against the door frame of his house resulting in a bleeding injury on his hand. P. W. 4 and others removed the deceased to Shergarh Dispensary wherefrom he was taken to Berhampur Government Hospital. He died on 11-6-65 at 2 P. M. In his statement under Section 342, Cr. P. C. the accused took the plea that the deceased assaulted him with a Katua. The wife of the deceased supplied him a kati. The accused gave a stroke with a lathi on the hand of the deceased. The katua fell off from his hand and hit the head of the accused who got a bleeding injury, Tha deceased fell down and the accused does not know as to what happened next as he himself became senseless. During the trial the accused suggested to the eye-witnesses that he had the right of private defence. The learned Sessions Judge on a thorough analysis of the materials on record rejected the plea of the right of private defence and held that the accused caused the death of the deceased.

(2.) THE learned Sessions Judge in paragraph 4 of his judgment concluded that the death of the deceased was homicidal. This finding is not assailed before us. It is not necessary to repeat the discussions made by the learned Judge. For reasons given by him, we are in agreement with him that the death was homicidal. The concession on this point was rightly made.

(3.) THE next question for consideration is whether the accused caused the death of the deceased. P. Ws. 4, 5 and 8 are the eye-witnesses. P. Ws. 4 and 8 are the cousins of both the accused and the deceased. In cross-examination it was suggested to P. W. 4 that the accused filed a criminal case against him on an allegation that he assaulted his mother. P. W. 4 admits that there was such a criminal case, but denies any suggestion of enmity subsequent thereto. The criminal case was filed 15 to 20 years ago, P. Ws. 4 and 8 are the common relations of the parties. Nothing has been suggested as to why they will falsely implicate the accused. P. W. 5 is a resident of the neighbouring village who admittedly saw the occurrence. Nothing has also been suggested against him. There is no serious discrepancy in the evidence of these eye-witnesses. All of them state that the accused held a Kati-Katua and the deceased a stick. When a Kati is fixed to the flattened end of Katna, it is called Kati-batua, They narrate how the son of the accused threw a Kati towards the deceased who warded it off with his slick and then attempted to pick it up, and that while he was in the process of picking up the accused gave the fatal blow on his head with his Kati-katua, as a result of which the deceased fell down senseless. Before the learned Sessions judge it was very strongly urged that the accused had no Katua in his hand. The evidence of the 3 eye-witnesses belies the assertion of the accused. In cross-examination to P. W. 4 the following suggestion was made :-