STATE Vs. BAIRAGI CHARAN MOHANTY

JUDGEMENT

(1.) THE Appellant has been convicted under Section 302, Indian Penal Code, for causing the death of Dayanidhi Mohanty, and sentenced to death. He has also been convicted under Section 323 Indian Penal, Code for causing hurt to Indramani Mahakud (p.w. 1), under Section 324, Indian Penal Code for causing grievous hurt to Santilata Mohanty and Usamani Mohanty (p.ws. 4 and 5 respectively), and under Section 326, Indian Penal. Code for causing grievous hurt with a dangerous weapon to p.ws. 4 and 5, and sentenced to undergo R.I. for one year, three years and ten years respectively under Sections 323, 324 and 326, Indian Penal Code. All these sentences are to run concurrently.

(2.) PROSECUTION case may be stated in brief. The accused is the own paternal uncle of the deceased. The father of the deceased died when he was about three years old. The accused brought him up. They were living in joint family. The deceased was working as a Gramasevak in Kendrapara Block. Their village is situated in the district of Balasore within the jurisdiction of Similia Police station. The occurrence took place on 25.10.1970 at 8 -30 P.M. In the proceeding Asadha there was severance of joint status and the accused remained in a separate house within the same Khanja. There was, however, no partition of the joint family properties by metes and bounds. The accused was working as a teacher in a school at a distance of about one mile from the village. The accused appears to have put in some resistance in Dot smoothly effecting partition by metes and bounds. The deceased approached the YUBAK SANGHA (Youth Committee) of the village to effect an amicable settlement. Sometimes earlier with the assistance of the youth committee the deceased laid a foundation of a new house adjacent to the ancestral house in which he was residing after severance of joint status. During Durga Puja holidays the deceased had come home. On the date of occurrence his wife (p.w.4) was feeling somewhat uneasy. His mother (p.w. 5) had taken charge of his daughter about 2 1/2 years old and was looking after p.w. 4. The deceased came home at about 8 -30 and was enquiring about the health of his wife inside his house. At this point of time, the accused came to the house of the deceased and asked him to see the Khatian of the lands saying that though the Lands had been grabbed by the agnates, he (the deceased) was unnecessarily giving out to the villagers that he (the accused) was unwilling to effect an amicable partition by metes and bounds. The deceased 080 me to his own verandah and read the Khatian supplied by the accused with his own lantern which was burning dimly. The accused brought out his own lantern which was brighter. The deceased while reading the Khatian did not find anything going against his own view that the partition was not being amicably effected. Then the accused read the Khatian in a different manner, but on verification the deceased did not find the accused 's statement as correct. The accused then said that he would go inside his own house and bring another Khatian which would give the correct state of affairs. The accused came back with a Katari (M.O. XIII) Bond while the deceased was unguarded gave a stroke on his head. The deceased fell down in the courtyard. As this caused some unusual sound, both p.w. 4 and p.w. 5 rushed out of their room. They noticed the ghastly scene that the accused was attempting to out both the arms of the deceased. They resisted. On their resistance the attention of the accused was diverted towards them. Both p.ws. 4 and 5 were Successively attacked and severe injuries were caused to them with the very KATARI. In the meantime the deceased fled away to the village PATHAGARH (Library) where p.w. 1, p.w. 3 (Bhaskar Jena), p.w. 7 (Bhaskar Jena) p.w. 13 (Gayadhar Sial) and p.w. 16 (Chintamani Sial) were playing cards. The deceased was wholly naked and profusely bleeding. He narrated to them as to how he was attacked by the accused and - that they should immediately run to his houses to protect p.ws. 4 and 5 who were being assaulted by the accused. Immediately p.ws. 1, 3, 7, and 16 went towards the house of the deceased. On the way a non got into the foot of p.w. 1. So he fell behind. P.ws. 3. 7 and 16 went ahead with a lantern. By this time the accused was coming on a cycle that way. On being questioned by them the accused did not give any rep. As they were not in a position to identify the cyclist due to darkness, they allowed him to pass by. A little distance after the accused struck against p.w. 1 who was coming in darkness. Both accused and p.w. 1 fen down. As a result of this clash both p.w. 1 and the accused bad injuries to him. P.w. 1 took the accused with the cycle to the Pathagar where p.w. 13 was waiting. P.ws. 3, 7 and 16 went into the house of the deceased and found p.ws. 4 and 5 severely injured and came back to the pathagar. Soon after the assault made by the accused, the hulla (cry) of p.ws. 4 and 5 attracted many parsons. P.w. 2 (Umakanta Mohanty), p.w. 6 (Raghunath Mohanty) p.w. 8 (Surendra Barik), p.w. 9 (Raghunath Mohanty), p.w. 10 Ram Chandra Mohanty), p.w. 11 (Bhaskar Sial), p.w. 12 (Narayan Barik), p.w. 13, p.w. 14 (Shyamsundar Barik) p.w. 15 (Baikunthanath Mohanty) and p.w. 17 (Kapila Barik) came to the spot. There they noticed that p.ws. 4 and 5 had been seriously injured. P.w. 18 (Udayanath Mohanty) also came immediately after the hulla and noticed the injuries. The Sarpanch (p.w. 13) made arrangements for removing the deceased and p.ws. 4 and 5 to hospital. On the way they passed the Primary Health Centre where the compounder was not prepared to take the responsibility in dealing with these serious cases. Ultimately all the three were taken to Bhadrak. The deceased died on the way. P.ws. 4 and 5 remained in the hospital for about 22 days. In that very night F.I.R. (Ext. 20) was lodged at about 10 'Clock by p.w. 1. The Investigating officer (p.w. 25) took up investigation next days in the village Path agar the banion (M.O. VI) of the accused was seized at about 12 noon on 26 -10.1970. It was drenched with blood and on serological test it was found to contain human blood. On 26 -10 -1970 at about 1.30 P.M. the accused is said to have given discovery of the Katari (M.O. XIII). On serological test it was found to have contained human blood.

(3.) THE prosecution has relied upon the following pieces of evidence: