Decided on March 23,1978

The State Of Orissa Appellant
Mutuka Barik Respondents


K.B. Panda, J - (1.) THE State of Orissa is in appeal against an order of acquittal passed by the Sessions Judge, Koraput, Jeypore in Sessions Case No. 86 of 1974, wherein the Respondent Mutuka Barik was facing trial under Section 302, Indian Penal Code on the allegation of having murdered his full brother Mutuka Taudu. Be it stated that though the Court acquitted him of the charge under Section 302, Indian Penal Code yet he convicted the Respondent under Section 304 Part II and sentenced him to undergo rigorous imprisonment for five years.
(2.) THE prosecution case, in brief, is thus: On 8 -8 -1974 at about noon the deceased and the Respondent in a drunken state quarrelled with each other. Soon after, while the Respondent was husking paddy with the help of a Paurani (a thick club -like lathi with an iron ring at the lower end) (M.O.I.), the deceased came there and challenged the Respondent as to why he was abusing him. Also the deceased, it is alleged, gave one blow to the Tatti door of the Respondent with a fire -wood. At this, the Respondent gave a thrust to the deceased on the head with that Paurani as a result of which the deceased fell down. Thereafter the Respondent gave two more blows to the head and the back of the deceased with the M.O. I in consequence of which he died on the spot. When the neighbours appeared on the scene hearing the sounds of assault, they found the Respondent standing by the deceased with M. O. I. which had been stained with blood. When questioned, the Respondent admitted to have killed the deceased with M. O.I. P.W. 2, apprehending assault to others with M. O. I. snatched it away from the Respondent. But on the intervention of P.W. 3, he (P.W. 2) returned it to the Respondent on the Respondent asking for it to go to the Police Station with M. O. I to lodge information as to how he bad killed the deceased. Thereafter, the Respondent proceeded towards the Out Post with M. O. I. In the meantime, P.W. 5 the Ward Member came to the spot and sent information to the Sarpanch (P.W. 6) through P.W. 8. The Grama Rakshi and P.W. 8 were deputed to the Out Post for lodging information. But on their way they got information from a constable that the matter had already been reported at the Out Post. Thus the Grama Rakshi and P.W. 8 returned to their village. True to his ward, the Respondent with M. O. I. appeared at Ramanaguda Out Post and gave information that the deceased having assaulted him he killed the deceased with M. O. I. Finally, P.W. 12, the Officer -in -charge, submitted charge sheet against the Respondent under Section 302, Indian Penal Code with the result as aforesaid. The Respondent in his defence having denied to have killed the deceased added that the deceased was a tuberculosis patient who was heavily drunk and as he entered into his house he struck against a bamboo rafter on his head and fell down dead. At that time he was husking paddy. As he found the deceased to have fallen down he came near him but found him dead. In the meanwhile, P.W. 2 came and on his asking the Respondent denied to have killed the deceased. However, P.W. 2 did not believe him and snatched away the M. O. I from him which he subsequently got back on the intervention of P.W. 3. However, he appeared with M. 0, I at the Out Post and lodged information that he had killed the deceased under the threat of P.W. 2 and the Ward Member (P.W. 5).
(3.) THE prosecution examined 12 witnesses, out of whom P.W. 1 is the wife of the deceased and an eye -witness to the occurrence; P. ws. 2, 3 and 4 are post -occurrence witnesses who immediately appeared at the scene and found the Respondent with M. O. I. standing by the side of the deceased who had fallen down with head injuries; and P.W. 9 is the doctor who examined the deceased and submitted his post -mortem report (Ext. 1). The other witnesses are of formal nature.;

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