JUDGMENT

Appellant Tuna Prusty and his father Kunja Bihari Prusty faced the trial in S.T. Case No.355(1) of 2000-2001 in the Court of Addl. Sessions Judge, Deogarh on the allegations that on 25.04.2000 at about 1.00 P.M., they shared the common intention to kill Benudhar Sahu (hereinafter referred to as “the deceased”). In course of trial, because of absence of sufficient evidence to connect accused Kunja Bihari Prusty with the crime, learned Addl. Sessions Judge acquitted him of the charge. At the same time on assessment of evidence on record, he found that prosecution has proved charge of murder against the accused-appellant Tuna Prusty. Accordingly, he convicted him under Sec¬tion 302, I.P.C. and sentenced him to undergo imprisonment for life. In this appeal, the appellant challenges that order of conviction pronounced by the learned Addl.Sessions Judge on 17.07.2001.

2. Prosecution case is that accused Kunja Bihari Prusty and the deceased are co-brothers-in-law. Accused Tuna Prusty is son of accused Kunja, whereas Moochi Sahu (P.W.6) is the son of the deceased. Tuna and Moochi, the cousins were good friends. On the assumption of the deceased and his wife, Tuna is a spoiled child and in his association, P.W.6 was keeping bad habits and getting addicted to intoxicants. Several times, they requested the parents of accused Tuna to caution their child i.e. Tuna not to allure Moochi or to mix with him, but notwithstanding such caution on 24.04.2000, the deceased and his wife found their son missing and not returning to the house in the night. On 25.04.2000 in the bathing ghat, when the wife of the deceased confronted that fact to her sister i.e. the mother of accused Tuna, then there was a quarrel between the two sisters. After returning to house, wife of the deceased narrated to him about the altercations with her sister and the deceased then proceeded to the house of the accused persons to raise protest. According to the prosecution, after ascertaining about the whereabouts of his son from accused Kunja and his wife and also accused Tuna, the deceased scolded them and returned. While he was so return¬ing, as alleged, accused Tuna threw the stone, M.O.I. from a distance of 20-25 cubits and that stone hit on the backside of the head near ear and caused profuse bleeding injury. On sustain¬ing that blow, the deceased fell down on the road and accused tuna again picked up the brickbat more than half of its length and threw it at the deceased. That brickbat hit on the cheek and ear and also caused bleeding injury. Accused Kunja also picked up a brick and came to thrash it on the deceased but the eye-wit¬nesses gathered there caught hold of him and removed the brick from his hand. The deceased in injured conditions was taken to the hospital. He was granted treatment there but the deceased could not revive and died in the hospital. According to the Investigating Officer, this occurrence took place at a distance of about 100 yards from the Deogarh Town Police station and that too in front of the house of the Officer in-charge of the police station. Jhasketan Sahoo (P.W.4) lodged the F.I.R., Ext.4 and set the law into motion.

3. To substantiate the charge, prosecution relied on the evidence of thirteen witnesses and the stone and the brick marked M.Os. I and II as the material objects besides documents marked Exts. 1 to 8. While denying to the charge, claimed for trial, accused Kunja Bihari Prusty took the defence plea that by the time of occurrence he was not present in the house but after returning to the house, he learnt about hospitalization of the deceased and saw him there. Accused Tuna Prusty took the defence plea that the deceased came to their house and assaulted him and while running away from the house he fell on the road and sus¬tained the injuries. In support of such defence plea neither of the accused adduced supported defence evidence.

4. On appreciation of the evidence of Dr. Parsuram Sahu (P.W. 13), learned Addl. Sessio