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1. Sole appellant Puria Rabidas has preferred this appeal against, the order of conviction and sentence passed by Sri Ram Vyas Ram, 4th Additional Sessions Judge, Santhal Parganas, Dumka in Sessions Case No. 292 of 1990 on 30th May, 1992 under Section 302 of the Indian Penal Code to go imprisonment for life and under Section 323, IPC to go R.I. for one year directing to run both the sentences concurrently.

2. The prosecution case as per written information Ext. 1, given by the informant PW 1 Arun Kumar Das is that the wall of his house situated at village Hathigarh had fallen down. To repair the said wall on 23.1.1990 at about 3.00 p.m.he had erected Pusta of the wall. Thereafter he had gone to village market to run his tea-stall. When he returned his home at about 8.00 p.m. then he was informed by his wife that the Pusta erected by him was cut by Puria Rabidas. When she objected, then Puria Rabidas abused her. The informant went to inquire as to why Puria Rabidas cut the Pusta of his wall, then he was also abused by the appellant. The appellant caught his collar and gave fist-blow on his neck. Informant's brother Swapan Kumar Das rushed to rescue the informant. In the meantime, Puria Rabidas brought a gupti from his house and assaulted on the head of Swapan Kumar Das to kill him. Swapan Kumar Das sustained bleeding injuries, fell down and became unconscious. Fekan Rabidas (PW 2) and Nirmal Kumar Das (PW 7), both of village Hathigarh, went there on hearing alarm and intervened in the matter. Injured Swapan Kumar Das was taken to Teen Pahar Railway Station in an unconscious condition and thereafter went to the Rajmahal PS and gave information in writing (Ext. 1).

6. The learned counsel for the appellant has assailed by submitting that the I.O. did not find any blood stain where Swapan Kumar Das was assaulted. It was also submitted that the P/O of the alleged occurrence has not been established. PWs 1, 2 and 5 are closely related and interested witnesses. Hence their evidence cannot be relied.

7. Learned APP while arguing the case, has submitted that the alleged occurrence took place at village Hathigarh at 8.00 p.m. night on 13.1.1990 which was corroborated by neighbouring witnesses PW 2 and his wife PW 5. These witnesses, who have got their house adjacent within five yards South from the house of the informant, saw the alleged occurrence. The alleged occurrence took place only due to cutting Pusta wall by the appellant Puria Rabidas. When informant asked as to why he did so, then the alleged occurrence took place. When appellant caught the collar of the informant and gave fist-blows on his neck, then deceased Swapan Kumar Das. who is brother of the informant and was living separately in a nearby adjacent house, rushed to rescue the informant. The appellant, who has got his house just after the lane, brought a gupti and gave gupti blow on the back portion of the head of Swapan Kumar Das causing bleeding injury. He fell down and became unconscious. He was taken to Teen Pahra Rajmahal Hospital but he died in the next morning.

11. The appellant had assaulted Swapan Kumar Das who had just gone to intervene the fist-blow given by the appellant to the informant, Arun Kumar Das, on his neck. At that time he had no intention to cause the murder of Arun Kumar Das. When Swapan Kumar Das went to intervene then all of a sudden without any premeditation the appellant brought a gupti from his house and assaulted Swapan Kumar Das with gupti from behind on the back side of his head. The informant saw only one assault given by the appellant. The other witnesses, PWs 2 & 5, who are also the eyewitnesses, have not deposed that the appellant, Puria Rabidas, had repeated the gupti blows even if I have stated that the second assault was not seen by the informant due to night and also because the appellant gave the second assault coming from behind on the back portion of the head of Swapan Kumar Das. His intention was not to cause the murder of Arun Kumar Das as there is no evidence of any enmity in between him and Swapan Kumar Das. Due to gupti assault Swapan Kumar Das died in the next morning on 24.1.1990 at Tinpahar Rajmahal Hospital.