BENU DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal arises out of judgment and order of sentence dated 29.7.1996 passed by learned 1st Additional Sessions Judge, Berhampur in S.C. No. 24/95(S.C. 328/95 GDC).

(2.) Learned trial Court found Benu Das (Appellant No. 1) guilty of offence under Sections 302/149, I.P.C. and sentenced him to suffer rigorous imprisonment for life. Appellant No. 7- Ananda Das is the brother of Appellant No. 1-Benu Das. He and Appellant No. 5 Gura Das Were found guilty of offences under Sections 148, 323 and 325, I.P.C. They were sentenced to suffer rigorous imprisonment for two years each for the offences under Sections 148 and 325 I.P.C. on each count and six months each for the offence under Section 323 I.P.C. with direction that the sentences are to run concurrently. Other convicts namely Appellant No. 2-Gada Das (Father of A-1), Sania Das (A-3), Durjya Das (A-4) and Ballav Das (A-6) were convicted under Section 148, I.P.C. and each of them were sentenced to suffer rigorous imprisonment for two years.

(3.) The spot of the occurrence is the village road in front of the house of deceased Bisu Das. The occurrence happened at about 8.00 P.M. on 26.03.1995 which was a Sunday. At about 7.00 P.M. on the date of occurrence Mohan Das (informant & P.W.1), who is the son of deceased Bisu Das was returning from his work with a Kati and a Frame used for preparation of bricks in his hands. On the entrance of the village near a bridge Ananda Das (A-7) and Ballav Das (A-6) happened to see him. They passed certain comments regarding the manner in which he (P.W.1) was walking. He (P.W.1) retorted. At this, Ananda Das (A-7) and Ballav Das (A-6) chased him hurling abuses in obscene words against him. They brought out lathis from their respective houses and called others. Benu Das (A-1) holding a yoke, Durjya Das (A-4) and Gada Das (A-2) holding a lathi each, came out to assault (P.W.1). However, with intervention of Govinda Chandra Sahu (P.W.13) and Kasi Nath Sahu (not examined) the matter subsided. After sometime at about 8.00 p.m. again all the appellants came out in a body using abusives in filthy languages. All of them holding lathis etc. threw challenge to kill P.W.1. At that time, deceased Bisu Das was sitting on the "Khani" (a pit where grain is stored in Southern part of the State) situated in front of his house. He intervened and tried to explain the matter before the appellants. All of a sudden Benu Das (A-1) gave a blow by the broken yoke he was holding on the head of Bisu Das. Bisu Das fell down on the ground by receiving that blow. When Madhaba Das (P.W.2) went to shift his father, Ananda Das (A-7) assaulted him with lathi. When the informant (P.W.1) rushed to the spot, Gura Das (A-5) gave a lathi blow to his left shoulder. Witnesses like Govinda Chandra Sahu (P.W.13) and others intervened and separated the parties from each other. In the night, after overcoming apprehension that the appellants may again attack them, Mohan Das (P.W.1) along with his brother Debaraj Das (P.W.4) came to the Police Station and lodged oral report, which the I.O. (P.W.16) reduced into writing and registered the case. On completion of investigation the I.O. (P.W.16) filed charge-sheet against the appellants implicating them in the offence punishable under Sections 147/148/323/325/294/506(II)/302/149, I.P.C.