The court determined that the accused were not guilty of culpable homicide but rather of causing grievous hurt, modifying their conviction accordingly.

JUDGMENT :

S.S. Mishra, J.

The present Criminal Appeal, filed by the appellants under Sections 374(2) of the Cr.P.C., is directed against the judgment and order dated 12.05.1995 passed by the learned District & Sessions Judge, Phulbani in S.T. No.74 of 1994. The learned trial Court while acquitting the co-accused person, namely, Pinaka Konhar by extending the benefit of doubt, convicted the present appellants for the offences under Sections 304 Part-I and Section 452/34 of I.P.C. and on that count, they have been sentenced to undergo R.I. for five years each with a fine of Rs.1,000/- each, in default, to undergo R.I. for four months for the offence under Section 304 Part-I of I.P.C. However, no separate sentence has been imposed on the accused-appellants for the offence under Section 452/34 of I.P.C.

2. Heard Mr. D.P. Dhal, learned Senior Counsel appearing for the appellants and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State.

3. The prosecution case, in brief, is that the deceased, Sima Konhar, and his wife, Smt. Mane Konhar (P.W.1), were originally residents of village Drasseru. Owing to a land dispute with their agnatic relations, Sima Konhar had earlier deserted village Drasseru and was residing at village Glot. It is alleged that on 27.09.1993 at about 11.00 P.M., the accused persons, namely, Champe Konhar (appellant No.1), Biswe Konhar (appellant No.2), and Pinaka Konhar, all sons of late Sinara Konhar and residents of village Drasseru, committed criminal trespass into the dwelling house of the deceased, Sima Konhar.

It is further alleged that Pinaka Konhar forcibly caught hold of the tuft of hair of Smt. Mane Konhar (P.W.1) and dragged her outside the house. Simultaneously, Biswe Konhar dragged the deceased Sima Konhar from inside the house to the frontage thereof, forced him to fall on the ground, and caught hold of his throat. While the deceased was thus restrained, Champe Konhar allegedly dealt indiscriminate blows on the person of Sima Konhar with a “Tangia Fasa” (axe). On hearing the cries and alarm raised by the deceased and his wife, Lamba Konhar (P.W.2) and Kenei Konhar (P.W.3), who were sahi-men of the locality, arrived at the spot, whereupon the accused persons fled from the place of occurrence. The injured Sima Konhar was thereafter taken inside the house.

On 28.09.1993 at about 2.40 P.M., Smt. Mane Konhar (P.W.1), wife of the deceased, lodged a written report at Balandapada Police Outpost, pursuant to which the investigation was set into motion. In course of investigation, the Investigating Officer seized blood-stained earth and sample earth from the floor inside the house of the deceased. The blood-stained wearing napkin of the deceased was seized under seizure list marked as Ext.6. The thenga was seized at Balandapada Hospital on its production by P.W.1. The axe was seized on being produced by the accused Champe Konhar. The police also seized the bed-head tickets from Balandapada Hospital and Phulbani Hospital reflecting the medical treatment of the deceased.

The police conducted inquest over the dead body of Sima Konhar and sent the same for post-mortem examination. After the post-mortem, the wearing apparels of the deceased were also seized. During the course of investigation, the statement of the deceased Sima Konhar under Section 161 Cr.P.C. was recorded, which has been relied upon by the prosecution as a “dying declaration”. All seized material objects were sent for chemical examination, and the Chemical Examiner’s report was obtained. Upon completion of investigation, the police submitted the charge-sheet against the accused persons for the offences under Sectio