BATAKRUSHNA PARIDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Challenge in these appeals is to the Judgment of a Division Bench of the Orissa High Court allowing the appeals filed by the State. - Two appeals were filed against the common Order/Judgment of Learned Sessions Judge, Dhenkanal in Sessions Trial No. 25 D of 1983. The Trial Court directed acquittal of all the accused persons who were charged for commission of offences punishable under Sections 302, 307, 148, 302/149 of the Indian Penal Code, 1860 (in short the IPC). However the present appellant was convicted in terms of Section 304 Part II IPC and was sentenced to undergo rigorous imprisonment for three years. The State questioned the acquittal of the respondents as well as the conviction of the present appellant in terms of Section 304 Part II, IPC in place of the Section 302 IPC. The present appellant filed an appeal questioning the order of conviction. Both the appeals were placed together and disposed of by the common judgment.

(2.) The skeletal picture of the prosecution case as unravelled during trial is as follows:

(3.) On the following day i.e. on 2.11.1982 between 9.00 and 9.30 A.M. the respondents belonging to Parida Sahi being armed with lathis and four muzzle loading guns proceeded to Dehury sahi and on their arrival near the house of Banka Dehury the appellant - respondent No. 1 Batakrushna Parida fired a gun shot at Sahadev Dehury who was then engaged in washing his face in the backyard of Banka Dehury. After receiving such gun shot Sahadev fell down with bleeding injury and instantaneously died. Respondent Dibakar Parida fired another shot from his gun towards Chhota Dehury as a result of which the latter received injury in his knees. Respondent Sankar Parida fired a shot from his gun towards Gopal Sahi and the pellet from his gun, of course, hit on the forehead of Athani Das as a result of which Athani Das fell down under a Mahua tree. After the respondents fired three successive shots from their guns the villagers of Dehury Sahi chased them as a reason whereof the respondents ran hither and thither towards their hamlet 'Parida Sahi'. While they were running, on being chased by the prosecution witnesses, appellant Batakmahna Parida received a lathi blow by one Sikar Dehury (P.W.11) as a result of which the gun held by him fell down from his hand and Braja Dehury (P.W.9) picked up the said gun. Respondent Sankar Parida chased Sikar Dehury (P.W.11) to give him a push with the gun, but he managed to snatch away the gun from the hand of respondent Sankar Parida. Kusana Dehury (P.W.7) and one Kashi Behera chased respondent Lambodar Parida, but respondent Lambodar Parida fired a shot at them as a result which Kusana Dehury (P.W.7) sustained bleeding injury near his neck.