The main legal point established in the judgment is the court's reliance on dying declaration, medical evidence, and witness testimonies to establish the premeditated nature of the assault, rejecting the appellant's claim under Exception 4 of Section 300, IPC.

JUDGMENT

B. Mohanty, J. - The appellant, namely, Braja @ Birgu Lakra has preferred the above noted Jail Criminal Appeal challenging the judgment dated 10.02.2005 passed by the learned 2nd Additional Sessions Judge, Sundergarh in Sessions Trial No.18/150 of 200304 by which he has been convicted under section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life. He has also been directed to pay a fine of Rs. 10,000/- (rupees ten thousand), in case of default in making payment, he undergo rigorous imprisonment for a period of six months.

2. The case of the prosecution is that on 06.03.2003 at about 08:30 P.M. the appellant and his elder brother were quarreling over a Dimiri Tree as the same had been cut away by somebody. The elder brother of the appellant blamed him for cutting of the said Dimiri Tree. This quarrel developed into a tussle and the appellant bringing out a dry wooden stick from his house and while saying that he would kill the elder brother, gave blows on his head and other parts of the body as a result of which the elder brother sustained bleeding injury on his head. Since it was night, the injured elder brother could not be brought to the hospital and on the next day morning he was brought to the Government hospital at Kutra and thereafter informant on the basis of information received from the wife of the deceased lodged written report at police station, which was marked as Ext.1 during trial. On the strength of the said FIR Kutra P.S. Case No.08 of 2003 was registered under section 341/294/323/506 of the Indian Penal Code and P.W. 10 took up investigation. During course of investigation dying declaration pursuant to requisition under Exhibit 12 was recorded by the treating Doctor (P.W.6) on 07.03.2003. Thereafter, the victim was referred to District Headquarters Hospital, Sundergarh for better treatment but he died on the way. Accordingly the death of the elder brother of appellant was reported to police. Thus the case was converted to one under Section 302, IPC. During such investigation, inquest was held. Thereafter the investigation was taken over by P.W.8, who seized one wooden frame of a cot and arrested the appellant on 07.03.2003 at 3:00 P.M. and he recorded the statement of the appellant and sent the seized weapon of offence to P.W.12, the Doctor who conducted the post mortem examination for his opinion. Seized materials were also sent to SFSL, Rasulgarh for chemical examination. On completion of investigation P.W.8 filed charge sheet against the appellant under section 302, IPC and accordingly the appellant stood his trial.

3. The prosecution in order to bring home the charge examined as many as 12 witnesses. P.W.1 is the widow of the deceased. P.W.2 is the informant and is the nephew of both the appellant and deceased. P.W.3 is a neighbour, who also appears to be the Grama Rakhi. P.W. 4 is a co-villager. P.W.5 is also a co-villager, who was a witness to inquest. He is also a witness to the seizure of weapon of offence under Ext. 3/1. P.W.6 happens to be the first Doctor who treated the victim at Primary Health Centre, Kutra and recorded the dying declaration of the victim through P.W.11. P.W.7 is the crime havildar, Kutra Police Station. P.W.10 is the first Investigating Officer and P.W.8 is the second Investigating Officer. P.W.9 is the brother-in-law of the deceased. P.W.11 is the Pharmacist at Kutra Hospital who noted down the dying declaration. P.W.12 is the Doctor who conducted the autopsy. Further from the side of the prosecution 13 documents were marked as exhibits. Also from their side six material objects were marked.

4. The plea of the appellant was complete denial. Further during his examination under section 313, Cr.P.C., 1973 the appellant stated that he was not present in the house on the date of occurrence. None has been examined from his side and no document has been exhibited on his behalf.

5. Learned trial Court after scanning the evidence on record cam