GAJANANA NAIK AND ANR. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal is preferred against the judgment dated 12.4.1982 passed by the learned Sessions Judge, Kalahandi, Bhawanipatna in S.C. No. 33K/32 of 1981, convicting the Appellants under Section 304/34, I.P.C. and sentencing each of them thereunder to undergo R.I. for four years.

(2.) THE prosecution case, may be briefly stated, thus: Deceased Sada Majhi and the two accused persons, who are brothers, are residence of Nagapada within the Jaipatna Police Station in Kalahandi district On 17.5.1981 at 4 P.M. accused Gajanana, as the Gramarakhi of the village accompanied the constable to the house of P.W. 1, the son of the deceased, with a warrant to arrest P.W. 1. Oil the accusation that be was selling illicit liquor and at the home of P.W. 1, there was an altercation between P.W. 1 and accused Gajanana when the latter had assaulted P.W. 1 with a lathi and ran away. Shortly thereafter, the deceased, on coming to know about the assault on P.W. 1, from him, went to the house of accused Gajanana and questioned him as to why he had assaulted his son (P.W. 1) when accused Gajanana dealt lathi blow on the head of the deceased and accused Rupa Naik dealt a of blow on the back side of the deceased with a crow -bar, when the deceased fell down. P.Ws. 2 and 3, sons of the deceased, who accompanied their father to the house of the accused witnessed the occurrence. On being called by P.W. 3 other villagers gathered at the spot. The deceased was initially admitted at the Jaipatna P.H.C. for treatment and as his condition became serious, her was shifted to Headquarters hospital at Bhawanipatna where he expired on 20.5.1981 at 8.40 P.M.

(3.) THE prosecution examined in all 12 P.Ws. to prove its case P.Ws.1, 2 and 3 are the sons of the deceased, of whom P.Ws. 2 and 3 claim to be the eye witnesses to the occurrence. P.W. 5 is a post -occurrence witness examined to corroborate P.Ws. 2 and 3. P.W. 7 is the Medical Officer, Jaipatna P.H.C. P.Ws. 12 is the doctor, who conducted the post -mortem examination of the deceased. P.W. 11 is the I.O., who investigated into the case. P.Ws. 4 and 8 are the witnesses to the seizure of the bed -head -ticket of the deceased. P.W. 6 is the constable, who accompanied the dead body of the deceased for its post -mortem examination. P.W. 9 is the A.S.I., who held the inquest over the dead body of the deceased. P.W. 10 is a witness to the seizure of the stick M.O. I. So, it is seen that P.Ws. 4, 6, 8, 9 and 10 are not material witnesses.