NIMAI SAMAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) Accused Nimai stood charged under Ss.302, 324 and 326, Penal Code, for having committed the murder of his son in law, Prafulla Prasad and for causing grievous hurt by means of a sword to his "Samudhi", Jhulan Prasad and for causing simple hurt to his daughter Pramila. The learned Sessions Judge by the impugned judgement acquitted the accused of the charge under S.302, Penal Code, as well as of the charge under S.326, Penal Code, in respect of the alleged grievous injury caused to Jhulan Prasad. He was, however, convicted under S.326, Penal Code, for assaulting the deceased and has been sentenced to undergo rigorous imprisonment for seven years. He has also been convicted under S.324, Penal Code, for having caused hurt to Jhulan Prasad as well as to Pramila by means of dangerous weapon and has been sentenced to rigorous imprisonment for two years on each count. The Sessions Judge had further directed that the sentences shall run concurrently. The appellant in the Jail Criminal Appeal assents the conviction and sentence passed against him. The State has preferred the Government Appeal against the order of acquittal of the appellant of the charge under S.302, Penal Code, as well as of the order of acquittal of the charge under S.326, Penal Code.

(2.) The prosecution case, briefly stated, is that the deceased was the son-in-law of the accused appellant. The daughter of the appellant, P.W. 3, had married the deceased against the will of her father which the accused did not relish. On the date of occurrence, i.e. 30-11-1980 at 8.00 p.m. the deceased entered into the house of his father-in-law. The accused' and his son then closed the doors from inside and assaulted the deceased, the accused having assaulted the deceased with a sword and his son having assaulted with a Tangi as a result of which the deceased fell down in a pool of blood inside the house of the accused-appellant and died at the spot. P.W. 1 is the sister of the deceased. She saw the incident of assault by peeping through a hole of the entrance door and then went and informed her father. When the father came to the house of the accused, he saw the accused-appellant in front of his house. When P.W. 3 who is the daughter of the appellant and wife of the deceased came running in search of her husband having learn that her husband was being assaulted, the a leant assaulted her. The appellant also assaulted Jhulan Prasad (P.W. 10), the father of the deceased, and both P.Ws. 3 and 10 sustained injuries on receiving the blows from the appellant. Thereupon, P.W. 10 along with some others tied up the appellant to a wooden pole after overpowering him and then lodged the F.I.R. in Colliery Police Station. The Investigating Officer (P.W. 16) registered a case and directed the constable (P.W. 15) to go to the spot and guard the dead body. Thereafter the Investigating Officer himself rushed to the spot and found the deceased lying dead inside the quarters of the accused-appellant and the sword (M.O.I.) was lying near the dead body stained with blood. He then arrested the appellant, but could not find any trace of his son Basanta who had absconded. The blood-stained shirt of the appellant, M.O. II, was seized in presence of the seizure witness (P.W. 14). The Investigating Officer thereafter proceeded with the investigation, examined several witnesses, sent the dead body for post mortem examination and took several steps to apprehend the absconding accused who is the some of the appellant. On 1-12-1980, he also forwarded the accused-appellant to the Court of the Magistrate with a prayer to record his confessional statement as the accused-appellant wanted to confess his guilt. Thereupon, the Magistrate recorded the confessional statement of the accused-appellant. On completion of the investigation as the absconding accused could not be traced, the charge-sheet was filed against the appellant showing the other accused as an absconder. The accused-appellant being committed to the Court of Session by the learned Sub-Divisional Judicial Magistrate; stood his trial for the charges. already mentioned.

(3.) To bring home the charge against the accused-appellant, the prosecution examined as many as 16 witnesses. On behalf of the defence one witness has been examined. P.Ws. 1 and 11 deposed to have seen a part of the occurrence, namely the assault by the accused-appellant on the deceased; P.Ws. 2 and 6 are the sister and brother of the deceased respectively and are post-occurrence witnesses. P.Ws. 3 and 10 are the wife and father of the deceased respectively who an approaching the house of the accused were assaulted by the accused-appellant; P.Ws. 4 and 5 are two neighbours of the accused-appellant; P.W. 7 is a witness to the inquest; P.W. 8 is the doctor who conducted the postmortem examination on the dead body of the deceased; P.W. 9 is the doctor who examined the injured P.Ws. 3 and 10; P.W. 12 is the Magistrate who recorded the confessional statement of the accused-appellant, the confessional statement having been marked as. Ext. 1; P.Ws. 13 and 14 are two witnesses to seizure of different articles; P.W. 15 is the constable who had accompanied the dead body for post-mortem examination and P.W. 16 is the Investigating Officer.