The duty of the prosecution to prove its case beyond all reasonable doubt and the appellant's opportunity to present a defense supported by preponderance of probability.

JUDGMENT :

S. Pujahari, J - Being saddled with the judgment of conviction and order of sentence passed in S.T. No. 84 of 1990 on the file of learned Sessions Judge, Mayurbhanj at Baripada convicting him for a charge under Section 304 Para-II I.P.C. (for short "the I.P.C.") and directing him to undergo rigorous imprisonment for three years, files this criminal appeal challenging the same. Bereft of unnecessary details, the prosecution case runs as thus;

"The deceased and the appellant are the relations. It is the case of the prosecution that on 13.02.1990 at about 1.15.p.m., the wife of the deceased had been to the well of one Arjun Mohapatra with a bucket to fetch water and while returning from there, she was abused by the mother of the appellant in filthy languages which was reported by her (wife of the deceased) to her deceased-husband. The deceased knowing about the aforesaid, proceeded to the house of the appellant being armed with a lathi and confronted the matter to the mother of the appellant regarding her bad manner shown towards his (deceased) wife. While hot dialogues between the deceased and the mother of the appellant were going on, the appellant appeared there from his house being armed with a lathi and dealt two lathi blows, one of such blows landed on the head of the deceased and other on the shoulder of the deceased, as a result of which he fell down there unconscious and thereafter he was shifted to Betnoti hospital for treatment and wherefrom he was shifted to Baripada Headquarters Hospital for better treatment and while he was undergoing treatment there, he succumbed to the injuries sustained. The matter then was reported to the O.I.C., Betnoti Police Station. On receipt of the aforesaid report, Ext. 1, the investigation was conducted and on completion of the investigation, placed charge-sheet against the appellant as he found a prima-facie case under Section 302 I.P.C. against him."

2. On the basis of the aforesaid prosecution case, the trial court framed court framed a charge under-Section 302 IPC against the appellant and as the appellant did not plead guilt of the charge, the prosecution examined as many as seven witnesses and also exhibited certain documents to being home the charge. The appellant took a plea of denial and the death of the deceased to be accidental, but not adduce any independent witness to support his plea.

3. During course of hearing, learned counsel for the appellant submits that this case, there no cogent material to come to a conclusion that the deceased died a homicidal death and the appellant proves a case that the death of the deceased was an accidental fall by preponderance of probability, the impugned judgment of conviction and order of sentence is unsustainable in the eye of law.

4. In response, the leaned counsel for the State through fairly submits that in this case, the doctor who had conducted autopsy over the dead body of the deceased vide Ext. 7, had not specifically opined that the death of the deceased was attributable to the injuries sustained and the deceased died a homicidal death, but he submits that the eyewitness version being available that the appellant dealt lathi blows to the deceased during course of a quarrel, the impugned judgment of conviction and order of sentence of the court does not need an interference of this Court.

5. It appears from the evidence on record that P.Ws. 1 and 2, who are the wife and son of the deceased, are ever witnesses to the occurrence and P.W.3 is an independent witness. P.W.4 is a post occurrence and witness. From the evidence of P.Ws. 1, 2 and 3, it emerges that during course of quarrel, the present appellant dealt blow to the deceased, for which he sustained injury and fell down. It also transpires from their evidence that the deceased was removed to the hospital and while undergoing treatment he succumbed to the injury sustained. The doctor, who conducted postmortem examination, has not been examined, but his report, Ext. 7 has be