The distinction between murder under Section 302 IPC and culpable homicide not amounting to murder under Section 304, Part II IPC, and the factors to be considered in determining the appropriate offense.

PASAYAT, J.

( 1 ) RELATIONSHIP of Buli Dei (P. W. 1) with Dhani alias Dhaneswar Naik (hereinafter referred to as the 'accused'), and Lalu alias Susant Kumar Behera (hereinafter referred to as the 'deceased') at different points of the is stated to be the background of murder which took place on 23-7-1992. The accused was found guilty for commission of offence punishable under Section 302, Indian Penal Code, 1860 (in short, 'ipc'), and was convicted and sentenced to imprisonment for life by learned Sessions Judge, Cuttack.

( 2 ) THE background facts sans unnecessary details are as follows : Buli was living with the deceased having fallen in love with him. Earlier she had lived with the accused. Though Buli was living with the deceased, the accused continued to visit her. On 22-7-1992 in the night, i. e. , one day prior to the date of occurrence, there was quarrel between Buli and the deceased. She told other people of the locality that while she was living with the accused, there was no ill-treatment by him, but when she lived with the deceased, he was torturing her. Next day, that is on the date of incident, there was an altercation between Buli and the deceased. At this time accused took a sword from his residence and proceeded towards canal embankment. After a short while, Arsti Dai, wife of Ajaya Behera informed Rita Nayak (P. W. 5) that the accused plunged a sword into the bally of the deceased as a result of which he fell down being severely injured. P. W. 5, the informant and her mother-in-law rushed to the spot and administered water to the injuried. At that time there was profuse bleeding from the abdomen. After arrival of the police, the injured was sent to the Medical College Hospital, but shortly thereafter he was declared dead. On the basis of information lodged by P. W. 5, investigation was undertaken. Initially a case was registered to be one relatable to offence under Section 307, IPC, but when the deceased breathed his last the case was converted to one under Section 302, IPC. P. W. 15 was the Sub-Inspector of Police who proceeded to the spot on receipt of telephonic message from Belisahi, i. e. the locality where the occurrence took place. Fifteen witnesses were examined on behalf of the prosecution to further its case.

( 3 ) THE accused pleaded his innocene and false implication.

( 4 ) MANORANJAN Das and Kuni Dei, P. Ws. 4 and 6 respectively, are stated to be eye witnesses to the occurrence. Additionally no other features were highlighted by the prosecution to futher its case. P. W. 4 is the son of P. W. 1 through her first husband after whose death she lived with accused and deceased at different points of time. It was stated that there was dying declaration by the deceased before some other witnesses to the effect that the accused was author of the crime. Discovery of the weapon of offence at the instance of the accused while in police custody was made. Wearing apparels of the accused stained with blood were also seized. The learned Sessions Judge, Cuttack placed reliance on the evidence of P. Ws. 4 and 6 and other circumstances, and found the accused guilty, and convicted and sentenced him as aforesaid.

( 5 ) IN support of the appeal Mr. B. Panda, learned counsel for the accused, submitted that P. Ws. 4 and 6 are not reliable witnesses and on a combined reading of their evidence, it is clear that exaggerations have been made. In any event P. W. 4, who is stated to be eye witness, has been apparently tutored to implicate the accused. He was also not examined by police immediately. Additionally he is a child witness on whose evidence no reliance can be placed particularly when he is a relative. So far as discovery of weapon is concerned, with reference to evidence of P. W. 4 it has been highlighted to show that there was no discovery pursuant to the information given by the accused while in police custody, and on the other hand it was P. W. 11, who did it. The plea of dying declaration is not acceptable