BANAMBAR BEHERA AND TWO ORS. Vs. STATE

JUDGEMENT

(1.) THE Appellants have challenged the judgment passed by the learned Additional Sessions Judge, Cuttack, convicting them under Section 302, I.P.C. and sentencing each of them to undergo imprisonment for life.

(2.) PROSECUTION case in brief is that the Appellants along with 45 accused persons, since acquitted, formed one group and p. ws. 1 to 4. the deceased and many others of village Kaipalla within Banki Police Station of Cuttack district belonged to the rival group. Both the groups were at daggers drawn with each other and were involved in litigations. On 10 -9 -1983 at about 4.30 p. m. the deceased and p. w. 1 started from the village on their way to Banki so as to come to Cut tack for consultation with an advocate in connection with a G. R. Case against the former. While p. w. 1 was on a bi -cycle, the deceased was a pillion rider. At some distance behind, p. w. 3 was also corning to Banki riding on the pillion of the cycle of his son. He was to accompany the deceased to Cuttack. By the side of the road, at a distance of about 400 to 500 cubits from the village, there lies a mango tope called Gothapada. The Appellants along with the other accused persons being armed with deadly weapons, such as, Katua, Farsa, Kati, Tangia and lathi lay in wait. P. w. 1 saw them and told the deceased that he apprehended danger, but the latter replied that those persons were sitting inside the tope and would cause no harm to them. So, they proceeded ahead to some distance when Appellant Banambar rushed towards them a Katua in hand. Out of fear, p. w. 1 and the deceased got down from the cycle. Soon thereafter Appellant Banambar dealt a blow with the Katua on the head of the deceased, as a result of which the latter fell down injured with his face downwards. With difficulty the deceased attempted to escape and proceeded some distance curling on his knees, but Appellants Dama and Mlechha stood in his front and obstructed him. So doing, they dealt Katari blows on the hands and legs of the deceased causing severe bleeding injuries. P.w.1 saw the assault and being mortally afraid himself threw away the cycle and ran away towards Banki. P. w. 3 and his son also saw the incident. They fled towards the village and reported the fact of assault to p. w. 10, a Police Constable who was on patrol duty in the village. P.w. 10 came immediately to the spot and found the deceased lying on the ground having injuries on the head, hands and legs. He was struggling for life. In the meanwhile, p. w. 1 arrived at Banki and lodged F. I. R. (Ext. 1) at the police station. P. w. 15, the Officer -in -charge of Banki Police Station and the Investigating Officer of the case commenced investigation and proceeded to the spot. On the way he met the deceased being carried by some persons on a cot towards Banki Hospital. He conducted the investigation and at about 11.30 p. m. received information that the deceased had expired at the hospital. He came back, made arrangements for sending the dead body for post -mortem examination and, after completion of investigation, submitted charge -sheet against as many as 48 accused persons for having committed offences under Section 147, 148 and 302 read with Section 149, I.P.C..

(3.) THE learned Additional Sessions Judge after consideration of the prosecution evidence held that death of the deceased was homicidal. The Appellants were the assailants who had committed the murder. Therefore, while he convicted them under Section 302, I.P.C., he acquitted the rest of the 45 accused persons of all charges.