BADHU MAJHI Vs. STATE

JUDGEMENT

(1.) THE appellant Badhu Majhi was tried along with three others on charges under Sections 302/34, 201/34 and 379/34, Indian Penal Code by the Sessions Judge, Baripada. The three others were acquitted of all the charges and the appellant alone was found guilty under Sections 302/34 and 201/34, Indian Penal Code and was sentenced to undergo rigorous imprisonment for life for his conviction under the former charge and to suffer rigorous imprisonment for three years and to pay a fine of Rs. 100/ -, and in default of payment of the fine to undergo rigorous imprinsoment for one month more for his conviction under the latter charge. The sentences were directed to run concurrently.

(2.) THE prosecution case in brief is this: The deceased Barsa Majhi had taken lease of a tank in village Tulasibani for purpose of fishery. His partners in the said business were all the villagers excepting Hari Majhi and his son Ratna (Accused No. 1), Pirthi Majhi (Accused No. 3) and Buka Majhi (Accused No. 4). These four persons therefore bore a grudge against Barsa Majhi and there were frequent quarrels between them on that account. Barsa also used to sell fishery to the residents of neighbouring villages and was in the habit of moving from village to village to collect his dues. On 4.10.1968, which was a Friday, Barsa Majhi left his village at about 9 a.m. for the neighbouring village Banki to collect his dues. On the next morning, his dead body was found lying in a Nala in Mouza Bijatala. A. U. D. F. I. R. was lodged at the police Station by the Grama Rakshi P. W. 1 and when the Police came to the spot for investigation, P. W. 2 the father of the deceased lodged information before the Officer -in -charge on the basis of what he had learnt about the incident from the present appellant Badhu Majhi. On the statement so made by P. W. 2, an F. I. R. under Sections 302/34 and 201/34, I. P. C. was drawn up against Ratana Majhi (Accused No. 1), Badhu Majhi, (accd. No. 2), Pirthi Majhi (accd. No. 3), Boka Majhi (accd. No. 4), Bhuta Majhi (P. W. 7) and Harihar Majhi (father of accd. No. 1 Ratana Majhi), and the dead body of Barsa Majhi was sent for post -mortem examination. Ten incised wounds and a blunt depressed injury were found in the region of the head, face, ear and neck of the deceased and on dissection, the doctor found an irregular linear fracture of the skull above the right ear. The cause of death, according to the doctor, was shock and haemorrhage resulting from the multiple injuries found on the dead body. During the course of investigation, the appellant Badhu Majhi made a confession before a Magistrate, First Class (Ext. 6) and a wrist watch said to be the property of the deceased was seized from his possession. After completion of investigation the Police submitted a charge -sheet against the four accused persons, and Harihar Majhi, father of Ratana Majhi (A/1). Harihar Majhi, however, died during the pendency of the commitment proceeding. The other four persons were committed to stand their trial in the Court of Session where the following three charges were framed against them.

(3.) THE prosecution case as told by the alleged eye -witness P. W. 7 is this : On the date of occurrence till evening he (Bhuta Majhi P. W. 7), Badhu Majhi (appellant) and the deceased Barsa Majhi were drinking liquor in the Bijatala Bhati. The only other person present in the Bhati was Lamohan Mahji (P. W. 4). While taking liquor at the Bhati, Barsa went out to answer a call of nature and during such temporary absence, the appellant Badhu Majhi confidentially told P. W. 7 that accused No. 1 Ratna, Pirthi (A/3), Buka (A/4), Hari and he himself (appellant) had hatched up a plan to kill Barsa that very night. After answering the call of nature, Barsa joined them and towards evening expressed his desire to go back home on a cycle. P. W. 7, it seems, persuaded him to stay away with him for the night but Barsa refused and started to return to his village. P. W. 7 states that thereafter he, the appellant and the deceased walked towards the channel side. While they were at a distance of about one kilometer from the Bhati, accused Nos. 1, 3 and 4 appeared on the road all of a sudden. Buka caught hold of Barsa and threw him down on the ground. Pirthi sat on Barsa who was lying on the ground and held him tight and accused Ratna (A/1) inflicted cut blows by means of an Axe on the throat and the head of the deceased. P. W. 7 says that on seeing this, he ran away from the spot. The above story was told by P. W. 7 for the first time in the trial Court. He did not say so either before the Police or in the Court of the committing Magistrate. The learned Sessions Judge, therefore, rightly disbelieved his testimony.