DINABANDHU SAHU AND ANR. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Appellant Dinabandhu Sahu and Nabakishore Das alias Behera, both of village Charchika, P.S. Banki in the District of Cuttack, have been convicted under Sections 302/34 and 326/34 of the Indian Penal Code (for short, 'Indian Penal Code') by order dated 23.2.1991 passed by the learned Second Additional Sessions Judge, Cuttack in S.T. No. 258 of 1990. They have been sentenced to undergo imprisonment for life under Section 302/34, Indian Penal Code and rigorous imprisonment for three months and to pay a fine of Rs. 100/ - each, in default to undergo rigorous imprisonment for one month, under Section 326/34, Indian Penal Code. The aforesaid order of conviction and sentence has been passed on finding the Appellants guilty of committing murder of one Gagan Behari Misra alias Babula and causing grievous hurt to Binayak Misra (P.W. 9).

(2.) PROSECUTION case, as revealed from the evidence of P.W. 9, is that deceased Gagan Behari Misra, Binayak Misra (P.W.), Soumendra Kumar Misra (P.W. I), Satyasri Misra (P.W. 2), Suvendu Misra (P.W. 3), Dinbandhu Misra (P.W. 4), Balamukunda Misra (P.W. 5) and Pramod Ch. Misra (P.W. 7) come from a common ancestor and as such are related to each other. There was political rivalry and dissension between the Appellants on one hand and deceased Babula and his family members including P.W. 9 on the other. There was a theft of a foul from the house of the deceased three days prior to the date of occurrence. The deceased suspected hand of the accused person behind the same and lodged an F.I.R. in Banki police -Station on 3.12.1989. On the date of occurrence, i.e., 5.12.1989, one Subash Chandra Misra, Advocate, and some other local persons wanted babula to be present for a reconciliation between him and the accused appellants. In response to such efforts made by Subash Chandra Misra and other local gentlemen, Babula went near the Novelty cinema Hall but came back shortly to his house and informed his uncle Binayak Misra (P.W. 9) that the accused persons had threatened him saying that unless he settled the dispute according to their terms, he would face dire consequences. Informing this, the deceased again went near the cinema hall. P.W. 9 followed him apprehending some untoward incident. When Babula reached the cinema hall, accused persons along with some others were sitting in a tea stall nearby. On the arrival of Babula, there was exchange of hot words between him and the accused -appellants. Both the Appellants had also a tussle with Babula, in course of which there was exchange of fists and blows. All on a sudden, accused dinabandhu took out a bamboo stick from the thatch of the tea stall and attacked Babula on his head. Thereafter, he took out a gusty form inside his chadar and handed it over to Naba and told him, "PURA SALA BABULA PETERE". Deceased Babula tried to snatch away the Gusty from the hand of accused Naba. At that time, accused dinabandhu brought out a Bhujali and gave blow on the chest of Babula. The deceased tried to run away towards a tank which is on the other side of the road. shouting "MARIGALI, MARIGALI". Both the accused persons chased Babula, who was running to save himself from their clutches: At a distance of about 25 to 30 from the cinema hall, both the accused persons stood in front for Babula by which his movement was restrained. At that point of time, accused Naba pierced the Gusty on the chest of the deceased.

(3.) THE plea of the accused persons is complete denial of the allegation. They have alleged that the case has been falsely foisted against them with a view to put them to unnecessary harassment and manifest peril. The two witnesses examined by the defense have stated that when the deceased and P.W. 9 came to the spot, they were armed with cycle chain and wooden plank respectively. They challenged accused Dinabandhu who tried to run away, but they chased him and dealt a blow with the cycle chain on his back side head. Even after receipt of the blow, Dinabandhu ran away from the spot. Then the deceased and P.W. 9 surrounded accused Naba and assaulted him also. Thereafter, they ran away towards the northern side and accused Naba ran towards the southern side. Some friends of accused Naba, namely, Hari Samal, Gokha Behera and Sana Behera, chased the deceased and P.W. 9. At this point of time, both these witnesses (D. Ws. 1 and 2) left the spot and were not aware of the subsequent events.