BIMBADHAR PARIDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) These two appeals are directed against the judgment of the High court of Orissa. Bimbadhar Parida and eight others are the appellants in Criminal Appeal No. 35 of 1982 and Bidhyadhar Misra is the appellant in Criminal Appeal No. 84 of 1982. These 10 accused along with 40 others were tried for offences punishable under S. 326, 323, 325, 302, 307 read with 149 Indian Penal Code. They were also charged under S. 427, 427/149, 392 and 379/149 Indian Penal Code. The trial court acquitted some of them and convicted 14 accused under S. 325, 323, 324 and 148 Indian Penal Code. Accused Bimbadhar Parida was sentenced to undergo RI for three years under Section 325 Indian Penal Code and to pay a fine of Rs. 500. 00 in default of payment of which to further undergo RI for six months. The remaining accused were convicted for other lesser offences and their sentences range from six months to one year Rl. All theconvicted accused preferred appeals to the High court. The State also preferred an appeal contending that all of them should have been convicted under S. 302/149 Indian Penal Code. The High court acquitted four persons and altered the conviction of Birnbadhar Parida to one under Section 304 Part II Indian Penal Code and sentenced him to four years' RI. The other convictions and sentences in respect of remaining accused were confirmed. Hence these two appeals.

(2.) The prosecution case is as follows: All the accused and the material witnesses are the residents of Village Badapandusara, Puri District, Orissa State. There was long-standing enmity between "malis" on the one hand and the villagers on the other hand in respect of a dispute over the administration of the affairs of the village deity. The endowment in respect of the deity possessed about 65 acres of land in six villages. There were 22 "mali" families and two Brahmin families who performed Puja and in lieu thereof they used to enjoy the usufruct of the land. In 1952 a Board of Trustees was constituted. The "malis" instituted proceedings for declaration that they were the hereditary trustees but the same was rejected. The appellant Bimbadhar Parida was the Managing Trustee of the Board and was also a Receiver for the management of the temple and the properties. He was asked to render accounts to the court and under the orders he had to harvest the crop in presence of the Inspector of Endowments. It was alleged that there had been some misunderstanding between Bimbadhar Parida and the "malis" and they were prohibited by him from entering the temple. It is also alleged that Birnbadhar Parida committed many irregularities and misdeeds. There was a rioting on 19/11/1972 and both parties received injuries and police cases were instituted. A police party was also posted in the village. On 21/11/1972 in the early hours, a mob of the villagers consisting about 300-400 persons came to Mali Sahi from all the sides carrying deadly weapons shouting that they would assault the "malis" and set fire to their houses. Bombs were exploded. Doors of houses were broken. The houses were damaged and ransacked and the "malis" were assaulted and their properties were taken away. The major incident during this occurrence was in respect of throwing of a bomb by Bimbadhar Parida on one Kandhi Dei which resulted in her death. The case was investigated and the charge-sheet was laid. Bimbadhar Parida was charged under Section 302 Indian Penal Code and others were charged for various offences.

(3.) According to the prosecution, on that day on seeing the mob approaching, Public Witness 17, husband of the deceased Kandhi Dei, went inside the house and bolted the door. Some of the assailants uprooted the door and entered the house. When the deceased tried to stop them by standing at the front door and when she refused to give way to Birnbadhar Parida, he threw a bomb towards her which exploded on her stomach of whichshe died. The Doctor, Public Witness 28, conducted the post-mortem examination over the dead body. He also examined other injured witnesses. The Doctor opined that the death of the deceased was due to shock and haemorrhage as a result of the dangerous injuries to the internal vital organs caused by explosive substances. Relying on the evidence of PWs 17, 21, 22, 27 and 32 which is supported by the medical evidence, the trial court held that it was Bimbadhar Parida who threw a bomb which caused the death of the deceased. The trial court, however, gave benefit of doubt to all the acquitted accused after scrutiny of the evidence of the witnesses. It, however, held that accused Bimbadhar Parida was liable under Section 326 Indian Penal Code and the remaining accused under other S. and sentenced them as mentioned above. The High court, however, took the view that accused Bimbadhar Parida who threw the bomb, should be convicted under Section 304 Part II Indian Penal Code and accordingly convicted him and sentenced him to undergo four years' RI holding that he had the knowledge that by exploding a bomb, he was likely to cause the death of the deceased. The High court acquitted four persons and confirmed the convictions of the remaining accused and made some minor alterations regarding the fine and imprisonment namely the sentence of two years was reduced to one year Rl. All the sentences were directed to run concurrently.