BANKA BHOI AND ORS. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE seventeen Petitioners and eight other persons were tried in the Court of the Assistant Sessions Judge, Puri, for offences under Section 304/34 and 201 of the Indian Penal Code in connection with an occurrence which took place early in the morning of the 21st October, 1948 in village Dimirisena, P.S. Brahmagiri in which one Daitari Palai was killed. The learned Assistant Sessions Judge acquitted two persons who were charged under Section 201 I.P.C. and six of the twenty -three persons charged under Section 304/34 I.P.C. and convicted the Petitioners under Section 326/34 I.P.C. and sentenced them to various terms of imprisonment. On appeal, the learned Sessions Judge of Puri maintained the convictions and sentence passed on the Petitioners.

(2.) IT appears that in village Dimirisena, P.S. Brahmagiri there are two factions, one led by one Chandra Sekhar Patnaik and the other by the deceased Daitari Palai. Some cases were also fought out between the parties on previous occasions. All the Petitioners are said to belong to the party of Chandra Sekhar Patnaik. The prosecution case was that on account of this enmity Chandra Sekhar Patnaik instigated the Petitioners and other persons to waylay and severely belabour Daitari Palai with lathis and tent as early in the morning of the 21st October, 1948 while the said Daitari was proceeding towards his field. Daitari fell down unconscious and died soon afterwards. It was further alleged that two persons of the accused party removed the blood -stains with a view to conceal all traces of the crime. But this portion of the case was not believed by the trial court. There were several eye -witnesses on the side of the prosecution to prove the actual assault. Both the Courts however held that one group of eye -witnesses who were co -villagers were inimically disposed towards the Petitioners and that their evidence regarding the participation of the Petitioners in the assault should not be believed in the absence of adequate corroboration. But the courts held that four other eye -witnesses, namely P.Ws. 10, 11, 18 and 14 were disinterested witnesses and inasmuch as they have also spoken about the occurrence and the participation of some or all of the Petitioners in the assault there was adequate corroboration of the testimony of the interested villagers. The Petitioners put forward the story that the deceased fell down from a coconut tree and sustained multiple injuries in consequence of which he subsequently died. This story was disbelieved by both the courts both on the ground of inherent improbability and also in view of the positive testimony of the eye -witnesses which has been accepted.

(3.) HIS Lordship discusses the argument on facts.