DEONISH KHARIA Vs. STATE

JUDGEMENT

(1.) THIS appeal has been preferred by appellant -Deonish Kharia from jail against conviction and sentence under section 302 of the I.P.C. passed by learned 1st Additional Sessions Judge, Gumla in Sessions Trial no. 397/87.

(2.) ACCORDING to informant, Julia Kharian (PW. 12), on 10.12.1985, after taking meal she was sitting in her house alongwith her mother, Gangi Khariain (deceased) and the sons, namely, Anjlus Kharia, Erik Kharia, Nicholas Kharia and Ignatius. Her cousin, Deonis Kharia (Accused -appellant) entered the house (Dhaba) and asked her as to what they were doing. The informant replied that they were sitting just after taking meal. Thereafter the accused -Deonis Kharia suddenly put both his hands around the neck of her mother, Gangi Khariain and started pressing. Having seen the situation, the informant took her four sons and ran away from the house towards the west. After keeping the sons in a nearby Khalihan, she again came back to her house when she saw the accused coming out of her house and ran towards South. The Kothri (room) was bolted from inside but the door planks were separated from the lower side from where she saw her mother lying dead. She started weeping, went to her sons and due to fear remained outside in the night. In the morning, she told about -the occurrence to Reben Kharia, Makru Singh and others. As she could not open the door, she had to remain sitting in front of the house. When villagers, Josef Kharia opened the door by breaking the Sikri, they saw Gangi Khariain lying dead. The motive of offence is said to be that the accused, Deonish Kharia used to ask her mother, Gangi Khariain to marry the informant with him but her mother was not agreeing and so he killed her mother by strangulating her neck.

(3.) MRS . M. Patra, the counsel appeared as amicus curiae on behalf of the appellant. She assailed the judgment on the grounds that (a) the statement of witnesses are inconsistent so far as story of escape of accused from a room is concerned. It was closed from inside. There being no probability of escape from the room, the prosecution case is doubtful and (b) there being no allegation that the accused entered the house with any arm and there being no premeditation, at best part II of Section 304 of the I.P.C. can be applied in the case of accused.