AJAY KUMAR BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This revision application is directed against the order passed by the 2nd Addl. Sessions Judge, Cuttack, in Criminal Appeal No. 5 of 1994 (50 of 1993) remanding the case to the Asst. Sessions Judge, Jagatsinghpur, for retrial after framing a specific charge under Sec. 326 of the Indian Penal Code ('I.P.C.' in short) against the Petitioner.

(2.) The present Petitioner and 17 co -accused were tried on the charges under Ss. 148, 307, 326,324 read with Sec. 149 of the I.P.C. for committing rioting being members of an unlawful assembly and being armed with deadly weapons like sword, Bhujali, Knife, Farsa, Bhalla, lath is, etc. and for voluntarily causing grievous hurt to the injured persons and for attempting to commit murder to them.

(3.) The case of the prosecution, in brief, is that on 27.3.1989 at about 8.30 P.M. the informant -Sang ram Samantray of village Jayasola orally reported to the Officer -in -charge of Jagatsinghpur Police Station that at about 5 P.M. of that day while he was moving on the village road near his house, he heard hullah from the house of Chittaranjan Samantray and thought that the Beherasahi people might be creating trouble on the kine house affair and while he was going to his house out of fear, he found the accused persons marching towards his street by forming an unlawful assembly being armed with sword, Farsa, Bhala, Bhujali, lathis etc. Birabar Behera dealt a Farsa blow on his head; Bhabagrahi dealt a blow with a Bhala on his right hand and Madan gave a lathi blow on his leg. Madhusudan Pradhan, Baishnab Charan Swain, Maheswar Swain, Sudhakar Pradhan, Padma Charan Sahu, Sarat Chandra Sahu, Bata Krushna Sahu and Ors. of the village, who came to his rescue, were also assaulted. While the informant was lying with injuries, his mother Kanchanbal a Samantray, who had been to the house of Bimala Sethi to purchase rice -bran, came to the house with severe bleeding injuries and fell down in the house saying that accused Ajay Kumar Behera dealt a sword blow on her hands and saying 50, she became unconscious. On the basis of the aforesaid report, a case was registered and investigation followed, on completion of which charge sheet was submitted against the present Petitioner and the 17 other co accused persons.