DINABANDHU SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellants 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, IPC) by order dated 23-2-1991 passed by the learned Second Additional Sessions Judge, Cuttack in S.R. No. 258 of 1990. They have been sentenced to undergo imprisonment for life under Sections 302/34, IPC 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 Sections 326/34, IPC. 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. 9). Soumendra Kumar Misra (P.W. 1), Satyasri Misra (P.W. 2), Suvendu Misra (P.W. 3), Dinabandhu 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 persons 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 Gupti from inside his Chadar and handed it over to Naba and told him, "PURA SALA BABJLA PETERE". Deceased Babula tried to snatch away the Gupti from the hand of accused Naba. At that time, accused Dinabandhu brought out a Bhujali and gave a 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 (sic) from the cinema hall, both the accused persons stood in front of Babula by which his movement was restrained. At that point of time, accused Naba pierced the Gupti on the chest of the deceased. The deceased raised a cry, "BHAINA MARI DELE NABA DINA", and so saying he fell down on the ground. Accused Naba again gave a stroke by means of the Gupti on the right side back of the deceased. At that point of time, Binayak Misra (P.W. 9) shouted. "MARI DE A MARI DELA", and accused Naba pierced the Gupti on the right side back of Binayak near his arm-pit.

(3.) In order to prove its case, prosecution has examined sixteen witnesses. Two witnesses have been examined by the defence. Out of the prosecution witnesses, Binayak Misra (P.W. 9), Suvendur Misra (P.W. 3) and Dinabandhu Misra (P. W. 4) are the eye-witnesses with regard to the attack made by accused Dinabandhu and Naba by means of Bhujali and Gupti respectively on the deceased. P.W. 4 has also stated to have seen accused Dinabandhu giving the lathi blow on the head of the deceased. As regards the attack on Binayak, there are two eye-witnesses, namely, Soumendra Kumar Misra (P.W. 1) and Satyasri Misra (P.W. 2). P.Ws. 5, 6 and 7 are post-occurrence witnesses and P.W. 8 is a seizure witness. Medical evidence has been rendered by P.Ws. 10, 11, 12 and 15. P.Ws. 13, 14 and 16 are police officers.