- (1.) THIS appeal is directed against the judgment of conviction and order of sentence dated 12.12.94 passed by the learned Additional Sessions Judge, Seraikella in Sessions Trial No. 112/92, whereby and whereunder the learned Sessions Judge held the appellant guilty under Sections 302 Indian Penal Code and sentenced him to undergo RI for life.
(2.) THE brief fact leading to this appeal are that on 8.11.91 the deceased Bachcha Sing has left for his paddy fields to guard the harvested paddy lying in the fields situated in Chitrutand of Mauja Ghatkidih, PS Kharsawan. When he did not return till the morning of 9.11.91, the informant Kuso Sardarin and her daughter Durga Mani went in search of the deceased to find him lying in injured condition on the ridge of the paddy field. When they tried to ascertain from the deceased what has happened, he stated before them that appellant Budhwa has assaulted him in the night. He was brought to his house by villagers, PWs 6 and 8 and further given some water and warmth etc to make him conscious. The deceased further disclosed to the witnesses that the appellant has assaulted him because of differences on getting water logged by the appellant in nearby nala for the purpose of fishing, which used to damage the standing paddy crop of the deceased. According to the informant, this has led to this occurrence. As the deceased was an old man, he could not survive and breathed his last within hours. The police was informed, on which Kharsawan police arrived at the house of the informant, recorded her statement at about 3 PM same day and registered Kharsawan P.S. Case No. 51/91 under Sections 307/302 IPC. The police investigated the case and finally submitted charge sheet against the appellant under Sec.302 IPC. The appellant was put on trial after commitment, to which he pleaded not guilty. However after examining the witnesses the trial court held the appellant guilty under Sec.302 Indian Penal Code and convicted and sentenced him as aforesaid.
(3.) THE present appeal has been preferred on the ground that the trial court has relied upon the so - called dying declaration which has not been proved beyond doubts. The learned Counsel for the appellant has further submitted that the evidence of PWs 1, 3 and 6 on the point of dying declaration should have been discarded keeping in view the condition of the deceased and his age. According to the learned Counsel, the deceased having remained in the field under open sky for whole night on 8/9.11.91, could not in a position to talk and disclose the circumstances in which he might have received the injuries. It was also pointed out that although many villagers were present at the house of the informant, none of them have come to support the prosecution version. The learned Counsel further pointed out that there was no motive apparent on the face of record for the appellant to cause the death for a petty matter like causing water logging near the fields. The learned Counsel further pointed out that even if the prosecution version is relied upon, the appellant has caused only one injury on the deceased. Therefore, the conviction of the appellant is fit to be set aside. Some doubt were also raised regarding the identification of the appellant by the deceased in the night in absence of any source of light. Accordingly, it is submitted that the appellant, who has already remained in custody for more than seven years, may be acquitted of the charges.;