STATE OF ORISSA Vs. LODU SWAIN

JUDGEMENT

(1.) These appeals are preferred by the State of Orissa against the judgment of the Division Bench of the High Court of Orissa. The respondents 1 to 4 herein were tried by the Second Addl. Sessions Judge, Berhampur, for the offences punishable under Section 302 read with Section 34, Section 307 read with Section 34 and Section 324, I.P.C. The Sessions Judge found the second accused, Jogi @ Jogendra Swain, guilty of having committed the offences punishable under Sections 302, 307 and 324, I.P.C. The other three accused persons were acquitted of all the charges framed against them. Aggrieved by decision of the Sessions Court, accused Jogi @ Jogendra Swain filed a criminal appeal before the High Court of Orissa against his conviction and sentence. The State of Orissa, meanwhile, filed an appeal against the acquittal of the other three accused persons. The appeal filed by Jogi @ Jogendra Swain was partly allowed by the High Court and he was acquitted of the charge under Section 302, I.P.C. but was found guilty of the offence under Section 326, I.P.C. The appeal preferred by the State was dismissed. Aggrieved by the judgment of the High Court in not interfering with the acquittal of the three accused and for alteration of the conviction of accused Jogi @ Jogendra Swain for a lesser offence, these appeals are filed by the State.

(2.) We have heard appellants counsel and also the counsel for the accused.

(3.) The prosecution case was that in the afternoon of 31-5-1988, Lodu Swain, the first accused father of the third accused Kalakar @ Karatan Swain picked up a quarrel with PW-1 on the issue of the accused Jogi @ Jogendra Swain deserting his wife Bhagini and for courting a second marriage. In the same day at about 9 p.m., when PW-1 was going to sleep in his thatched shed away from his house, the accused Jogi @ Jogendra Swain came there with a khanda-kati and assaulted him. PW-1 sustained a serious injury on his left hand. He shouted for help and on hearing the shouts, his father, Gania and PW-5 came to his rescue. Accused Jogi @ Jogendra Swain then dealt a blow on the right cheek of PW-5. Then, all the accused surrounded Gania and started attacking him. The other accused were holding Katis and all of them simultaneously dealt blows on the deceased Gania. Gania fell down on the ground and was later carried in a bullock-cart to a nearby public health centre. Gania died while undergoing treatment and PW-1 had to be in the hospital for about 30 days for treatment. The Investigating Officer, PW-9 came to know of the incident at about midnight. He along with other policemen came to the place of incident where PW-8 made the statement to PW-9. From the place of incident, PW-9 recovered a Kati and other weapons used in committing the offence. Some other articles which were bloodstained were taken into custody. The accused Jogi @ Jogendra Swain was absconding and he could be arrested only later. PW-12 conducted the post-mortem examination on the body of the deceased and the report showed that there were as many as 16 injuries on the body of deceased Gania.