The court established that the act of the accused was culpable homicide not amounting to murder, as it was committed in the heat of the moment without premeditation.

Judgment :

Sashikanta Mishra, J.

The appellants faced trial for murder in S.T. Case No. 221 of 2000 in the Court of learned Second Additional Sessions Judge, Cuttack and were convicted under Sections 302/34 of IPC and sentenced to imprisonment for life. Be it noted that another person namely, Bimala Dehury also faced trial in the connected case, being S.T. Case No. 442 of 2000 but by the same judgment, she was acquitted.

2. Prosecution case, briefly stated, is as follows:

The occurrence took place on 27.01.1999 at 7 a.m. in village Nuasolabandha. It so happened that on the previous night around 8 p.m., there was pelting of stones on the house of the informant Sabar Nayak. The identity of culprits could not be ascertained. On the next morning at about 7 a.m., while Sabar Nayak, his nephew Jeevan Nayak (deceased) and several villagers were discussing about the stone-pelting incident, accused Prafulla Kumar Dehury (appellant No. 1) suddenly rushed to the spot holding an axe and assaulted the deceased with it, causing grievous injury on his head. As a result, the deceased lost consciousness. After attending to the deceased, the informant went to Kanpur Police Station and submitted a written report. Basing on such report, P.S. Case No. 4 of 1999 was registered under Sections 341/307/506 IPC followed by investigation. In course of investigation, the deceased, who was referred to Cuttack for treatment, succumbed to the injury. As such, the case turned to Section 302 of IPC. Upon completion of investigation, charge-sheet was submitted against all the three appellants.

3. The defence, apart from taking the plea of denial, took the specific stand that the deceased had assaulted accused Prafulla and fell down on rocks while running away, resulting in injury on his head. The appellants were falsely implicated.

4. To prove its case, prosecution examined 7 witnesses and proved 11 documents and 3 material objects. On the other hand, defence examined 2 witnesses and exhibited 3 documents.

5. The trial Court, after analyzing the evidence on record, found that the prosecution case was well- established against the accused persons. Relying on the evidence of P.Ws.1, 2 and 3 along with medical evidence, the trial Court held that it was amply proved that accused Pratap and accused Pankaj caught hold of the deceased while accused Prafulla dealt a Tangia blow on his head, which ultimately led to his death. The trial Court disbelieved the defence evidence on the ground that even if it was accepted, it only proves that any injury sustained by the accused would have arisen during the occurrence. The trial Court, however, did not find any evidence to prove the prosecution allegation that accused Bimala had instigated Prafulla to assault the deceased. Thus, while acquitting Bimala, the trial Court convicted the other three accused persons and sentenced them as already stated hereinbefore.

6. Heard Mr. B.B.Routray, learned counsel for the appellants and Ms. Subhalaxmi Devi, learned ASC for the State.

7. Mr. Routray assails the impugned judgment on the following grounds:

(i) Though it is stated by the prosecution witnesses that there was a huge gathering, yet no one came forward to prevent appellant No.1 from assaulting the deceased as alleged, which is not believable.

(ii) P.W. 2 admitted that by the time he rushed to the spot the assault was already over and therefore, he could not have been treated as an eye-witness.

(iii) Though the witnesses stated that a Tangia was used to commit the offence, yet a Farsa was sent for examination by the doctor.

(iv)There was a counter-case ag