The central legal point established in the judgment is the distinction between the offences under Section 302 and Section 304 (Part-1) of the Penal Code, based on the circumstances and intent of the act.

JUDGMENT

S.K. Mishra, J. - All the three appellants faced trial for the offences under Sections 294/324/326/307/302/34 of the Indian Penal Code (hereinafter referred to as the 'Penal Code' for brevity). The trial was conducted under the supervision of the learned Ad hoc Addl. Sessions Judge, Sundargarh in S.T. No.172/37 of 2011. As per judgment dated 19.12.2011, the learned Ad hoc Addl. Sessions Judge, Sundargarh came to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt under Sections 294/326/307/34 of the Penal Code. However, the learned Ad hoc Addl. Sessions Judge came to the conclusion that the offence under Sections 302/323/324/34 of the Penal Code has been established beyond reasonable doubt. Hence he convicted them for the aforesaid offences. They have been sentenced to undergo imprisonment for life and to pay a fine of Rs.3000/- (Rupees three thousand only) each, in default to undergo R.I. for six months each for the offence under Section 302/34 of the Penal Code, to undergo R.I. for three years each for the offence under Section 324/34 of the Penal Code and to undergo R.I. for six months each for the offence under Section 323/34 of the Penal Code. Such conviction and sentences are assailed in this appeal.

2. The case of the prosecution in brief is that the three appellants are related to each other. On 18.1.2011 the appellants-accused had cut the branch of a mahul tree of Bisi alias Bisikesan Jaipuria and Madhaba Jaipuria of their village Beldhipa situated at Mankadkendukhet. On the next day, i.e. on 19.1.2011 at about 3.00 P.M. Bisi Jaipuria, P.W.7, his brother Madhaba Jaipuria (the 'deceased' for brevity) their wives Sumitra Jaipuria (not examined in this case), Kumudini Jaipuria-P.W.1 (the informant in this case) and their children had gone near the said mahul tree. The appellants were present there being armed with axe/tangia and falsia and when the aforesaid Bisikesan @ Bisi and Madhaba asked the appellants-accused the reason for cutting the branch of their mahul tree, the appellants suddenly got annoyed upon them and abused them in filthy languages and also assaulted Madhaba Jaipuria, Bisikesan Jaipuria and Kumudini Jaipuria by their weapons. As a result of the assault Madhaba Jaipuria sustained severe injuries. Bisikesan Jaipuria also received severe injuries and they were shifted to Hospital. Kumudini Jaipuria also suffered injuries. After incident, Kumudini Jaipuria, P.W.1, lodged a report before the I.I.C., Hemgir Police Station on 19.1.2011 at about 7.00 P.M. Thereafter, the I.I.C. registered P.S. case No.6/2011 and directed the S.I. Bhramarabara Patel, P.W.8, to investigate into the case.

3. The I.O., P.W.8, Bharamarabara Patel, S.I. of Police, examined the witnesses including the informant, dispatched the dead body for post mortem examination, effected seizures, arrested the accused persons, recorded the discovery statement of Purna Chandra Jaipuria, recovered the weapon of offence and finding a prima facie case submitted the charge sheet for the aforesaid offences.

4. The defence took the plea of complete denial to the involvement of the appellants in the alleged incident.

5. In order to bring home the charges levelled by the prosecution, it examined eight witnesses. P.W.1 is the informant-cum-injured who is the wife of deceased Madhaba P.W.7 is another injured and so also the elder brother of the deceased. P.W.2 is the co-villager of P.Ws.1 and 7 who had assisted P.W.2 in taking Madhaba and Bisi from the spot to their house and thereafter to the Hospital. P.Ws.3 and 4 are also the co-villagers of P.Ws.1, 7 and 2 and out of them, P.W.3 is a witness to the disclosure statement of accused Purna Chandra Jaipuria and so also the seizure of the weapons vide Exts.3 and 4. P.W.4 is a witness to the seizure of blood stained earth and sample earth from the spot and branch of the mahula tree vide Exts.5, 6 and 7. The rest three witnesses i.e. P.Ws.5, 6 and 8 are the official witnes