BHAGABAN PANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THESE two appeals arise out of the judgment dated 27 3 1991 passed by Shri B. Khadanga, Sessions Judge, Mayurbhanj, Batipada in S. T. No. 68 1990 convicting the seven appellants in Criminal Appeal No. 98 of 1991 and one appellant in Criminal Appeal No. 115 of 1991 under sections 148, 325/149 and 323/149 of the Indian Penal Code (hereinafter referred to as 'I.P.C.') and sentencing each of them to undergo rigorous imprisonment for six months under the first count and for two years under the second count with direction that thesentence would run consecutively while passing no separate sentence under the third count.

(2.) PROSECUTION case, briefly stated, runs as follows : On 15 4 1989 at about noon when p. w. 4 was returning to his house in village Mahulpatna undet Baisinga police station in the district of Mayurbhanj from Basanti Mandap in the nearby village Bachhuripada, Sanatan Acharya, the appellant in Criminal Appeal No. 115/1391 restrained him and assaulted him by dealing two fist blows on his face alleging that he (p. w. 4) had joined the rival group in the village and after being assaulted p. w. 4 rushed back to Basanti Mandap and narrated the occurrence to his father Chhachindra Bebera (deceased) and the informant (p. w. 1). Accompanied by p. w. 1, p. w. 4 went to Baisinga police station and after lodging a written report returned back to Basanti Mandap. P. w. 1 went to his house and at about 4 p. m. that day hearing hulla at the Basanti Mandap he came out of his house and found the eight appellants along with twentythree co accused persons (since acquitted), being armed with lathis, were challenging p. w. 4 as to why he reported the aforesaid matter to police and were having altercation with p. w. 4, his father (deceased), p. w. 2 and p. w. 6. At that time, Pramod Panigrahi (p, w. 3), Prasanta Panigrahi and Subash Panigrahi reached there. The deceased questioned the appellants and the other co accused persons as to why they assaulted his son p. w. 4. It is alleged that when the informant intervened, appellant Larman Das (appellant No. 4) and appellant Sarbeswar Das (appellant No. 3) assaulted him with lathis on his head and hand resulting in bleeding injuries on his head. The informant fell down on the ground after the assault. Appellants Bhagaban Panda (appellant No. 1), Pradeep Panda (appellant No. 6) and appellant No. 3 assaulted the deceased by means of lathis on his head, hand and waist as a result of which he fell down on the ground and became unconscious. Witnessing assault on the informant and the deceased, p. ws. 3, 4 and others protested the appellants and their co accused persons, but they were also assaulted by means of lathis resulting in bleedinginjuries on their head and other parts of body. It is further alleged that some of the accused persons pelted brickbats as a result of which Prasanta Panigrahi sustained bleeding injuries on his head. When the deceased was found unconscious, the informant shouted that the deceased had breathed his last where after the accused persons fled away with their lathis. It is alleged that due to rivalry between two groups of villagers the prosecution witnesses along with others of their group had performed Basanti Puja separately for which p. w. 4 was assaulted and after that the present occurrence took place. At about 4.45 p. m. the informant (p.w. 1) reported the occurrence to the O. I. C., Baisinga P. S. (p w. 8) who reduced the same to writing, registered a case under sections 147, 148, 337, 323, 506/ 149, I. P. C. and took up investigation. During investigation p. w. 8 examined witnesses, sent, the injured persons for medical examination, visited the spot and found broken bricks and stains of blood on the ground, arrested the accused persons and forwarded them to court in custody. When he received information that the condition of the deceased was deteriorating, he went to the hospital, but the dying declaration of the deceased could not be recorded since he was unconscious. On 6 5 1989 the deceased succumbed to the injuries while he was under treatment in the District' Headquarters Hospital, Baripada. After the death of the deceased the case was converted to one under section 302, I. P. C. P. w. 8 beld inquest over the deadbody of the deceased, sent the same for post mortem examination, seized the bed head ticket, etc. from the hospital and on 15 5 1989 the Circle Inspector of Police, Betnati took over charge of investigation of the case from p. w. 8 and after completion of investigation submitted chargesheet under sections 147, 148, 337, 506, 302/149, I. P. C. against thirtyone accused persons named in the F. I. R.. All the accused persons stood their trial and eight of them (the appellants in these two appeals) were found guilty and were convicted under sections 148, 325/149 and 323/149, I. P. C. and were sentenced as stated earlier. But they were found not guilty of the chargeunder section 302, I. P. C. and were acquitted. The remaining twenty three accused persons were found not guilty and were acquitted of the charge.

(3.) SHRI S. K. Sahoo, learned counsel for appellant Nos. 1 to 5 in Criminal Appeal No. 98 of 1991 and the sole appellant in Criminal Appeal No. 115 of 1991 and Shri D. Nayak, learned counsel for appellant Nos. 6 and 7 in Criminal Appeal No. 98 of 1991 as also the learned Addl. Government Advocate for the State were heard at length. While Shri Sahoo and Shri Nayak contended that the impugned judgment is unsustainable in law and is liable to be set aside due to improper appreciation of evidence on record, the learned Addl. Government Advocate supported the impugned judgment.