STATE OF ORISSA Vs. PARSURAM PANIGRAHI

JUDGEMENT

(1.) The prosecution case, which has given rise to the above referred two appeals, may be briefly stated as follows : Deceased Biswambar Panda was a resident of village Badasingha within Binjharpur P.S. in Cuttack district. On 4-9-1978 at about 6 p.m. while the deceased was returning home on a bicycle, on the way, near Jenasahi Chhak of village Sainkul, all the thirty-eight accused persons including Rabi Nayak and Chaitan Jena, armed with deadly weapons attacked the deceased and assaulted him on different parts of his body as a result of which he sustained severe bleeding injuries all over his body and fell down unconscious. After thus assaulting the deceased, all the accused persons fled away from the place. On seeing the assault on the deceased, P.Ws. 1, 2 and 3 rushed to the spot of occurrence and found the deceased lying unconscious at the spot with multiple bleeding injuries on his person. Then P.W. 1 and others carried the deceased to Binjharpur P. H. C. for his treatment. Thereafter P.W. 1 lodged a written report about the occurrence (Ext. 1) at the Binjharpur police station and the same was treated as the F.I.R. in the case. On the basis of that F.I.R. the police proceeded with the investigation of the case. As the condition of the deceased at Binjharpur P. H. C. did not improve, his case was referred to Jajpur Government Hospital by the Medical Officer, Binjharpur P. H. C. and on 5-9-1978 at 3.15 a.m., the deceased was accordingly admitted in the Jaipur Government Hospital. As no improvement in the condition of the deceased was noticed at the Jajpur Government. Hospital, the case of the deceased was referred to S. C. B. Medical College Hospital, Cuttack, to the Neuro Surgery unit, as it was suspected that the deceased had sustained injuries to his brain. On 6-9-1978 the deceased was admitted in the General Surgical Ward of S. C. B. Medical College Hospital, Cuttack and on 7-9-1978 he was taken over to the Neuro Surgical Ward for treatment of the injuries on his head. In the hospital he was treated for his injuries during the period from 6-9-1978 to 19-9-1978 and on 19-9-1978 he was discharged from the hospital. On 6-11-1978 the deceased appeared before the Assistant Professor, Neuro Surgery, S. C. B. Medical College (P.W. 8) for further follow up treatment. On 3-12-1978 the deceased was readmitted into the Neuro Surgical Department and after some treatment he was discharged on 27-12-1978. On 7-3-1979 the deceased was again admitted into the Neuro Surgical Ward of the S. C. B. Medical College Hospital for further treatment. On 26-3-1979 some operation was conducted on him and on 28-3-1979 another major operation was conducted and on 9-4-1979 the deceased expired in the hospital. The police after completion of the investigation filed the charge-sheet on 25-5-1980 against thirty-eight accused persons including accused Rabi Nayak and Chaitan Jena under Sections 147, 148, 326, 325 and 304 read with Section 149, I.P.C.

(2.) The above mentioned thirty-eight accused persons stood their trial before the Court of the Assistant Sessions Judge, Jajpur, facing charges under Sections 148 and 304 read with Section 149, IPC for having caused the death of deceased Biswambar Panda. On a consideration of the evidence, the learned Assistant Sessions Judge, while convicting accused Rabi Nayak and Chait an Jena under Section 304, I.P.C. and sentencing each of them thereunder to undergo rigorous imprisonment for a period of seven years, acquitted all the remaining 36 accused persons of all the charges levelled against them. Being aggrieved by the judgement of acquittal passed in favour of the said 36 accused persons, the State of Orissa has preferred Government Appeal No. 59 of 1982 on the ground that all the 38 accused persons ought to have been convicted under S.304 read with Section 149, I.P.C. Being aggrieved by the order of conviction and sentence passed against them, appellants Rabi Nayak and Chaitan Jena have preferred Criminal Appeal No. 58 of 1986. As both the appeals arise out of the same judgement of the learned Assistant Sessions Judge, the same are disposed of by this common judgement.

(3.) The plea of all the thirty-eight accused persons was one of denial. Accused Rabi Nayak had taken the specific plea of alibi and pleaded that at the alleged time of occurrence he was far away from the scene of occurrence and was engaged in flood relief work along with some Government officials at places far away from the scene of occurrence. He examined D.Ws. 1, 2 and 3 in support of his plea. The rest of the 37 accused persons pleaded that they did not participate in the alleged occurrence of assault on the deceased, but have been falsely implicated in the case owing to previous enmity.