Conviction under Section 302 of IPC cannot stand where the accused was not specifically charged, and evidence was insufficient to prove guilt beyond reasonable doubt.

JUDGMENT :

D. DASH, J.

1. The Appellant, by filing this Appeal, has challenged the judgment of conviction and order of sentence dated 22.04.2017, passed by the learned Sessions Judge, Nabarangpur in Criminal Trial No.75 of 2011 arising out of G.R Case No.456 of 2011 of the Court of the learned S.D.J.M., Nabarangpur.

By the same, the appellant (accused) has been convicted for committing the offence under section 302 of the Indian Penal Code (in short, ‘ IPC ’) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for 1 (one) year.

2. The prosecution case:

On 22.07.2011, around 8 a.m., Ramesh Pujari (deceased) was cutting the ridge on the land of Dharmu Pujari. It was at that time, this accused with his mother, brother, brother’s wife, namely, Sari, Suryapal and Buduri arrived there being armed with deadly weapons like lathi, tangi, iron rod etc. It is the further case that this accused Nirakar dealt the blows upon the deceased on his head by means of a Kodiki (Spade). The deceased receiving such grievous injuries died at the spot instantaneously. This accused with others then are said to have escaped from the spot throwing the spade there. Some persons present nearby had arrived at the spot and the informant (P.W.13) also arrived at the spot after the incident. She having found her husband lying dead went to Badambada Police Out Post and lodged a written report. The Sub- Inspector (S.I.) of Police (P.W.7) attached to the Police Out Post having entered the said facts in the station diary book maintained at the Outpost sent the FIR to Kosagumuda Police station for registration of the case at Kotguda Police Station and took up investigation. Then the case was registered and the Sub-Inspector of police attached to Outpost was directed to continue with the investigation. He in course of investigation, examined the informant and other witnesses and visited the spot. He had held inquest over the dead body of the deceased and sent the same for post mortem examination by issuing required requisition. From the spot, one Kodiki (spade) stained with blood was seized with one iron bolt. He having collected the sample earth and blood stained earth had seized those under the seizure list. The wearing apparels of the accused and those of the deceased were also seized. The Kodiki (spade) which the Investigating Officer had seized from the spot was sent to Medical Officer for his opinion with regard to the user of the same in inflicting the injury upon the deceased. The incriminating articles were also sent for chemical examination through Court. On completion of investigation, Final Form was submitted placing this accused with his mother, brother and brother’s wife to face the trial for commission of offence under section 147/148/302 read with section 149 of the IPC .

3. The learned S.D.J.M., Nabarangpur, having received the Final Form as above, took cognizance of the said offences and after observing formalities, committed the case to the Court of Sessions. That is how the trial commenced against the accused and three others by framing the charges.

4. Before the Trial Court, the prosecution has examined in total 17 witnesses. The wife of the deceased, who is the informant and had lodged the FIR (Ext.15) is P.W.13. The Prosecution in the case has relied upon the version of P.W.3, 10, 11, 14, 15 & 16, who are citing them as the ocular witnesses then being at the places near to the place where actually the occurrence took place i.e. near ridge of the paddy field of Dharmu Pujari. The Doctor, who had conducted autopsy over the