KEDAR BEHERA Vs. STATE

JUDGEMENT

(1.) The four appellants (hereinafter described as the 'accused') question legality of the judgment of conviction and sentence passed by the learned Sessions Judge, Ganjam, Berhampur.

(2.) Filtering out unnecessary details, the background as depicted by the prosecution is as follows : On 7-7-1984 in the afternoon, the accused came in two cycles to the entrance of Rampa Sahi, Aska Road and parked their cycles near the betel shop of one Bhobani Swain. At that time accused Hrudaya Parida, Subhas Behera and Kedar Behera were armed with a Kati (sharp cutting weapon) each and accused Nirmal Pal was armed with an iron rod. Standing near the betel shop, three of the accused persons asked Hrudaya to go to the house of Laxmi Charan Mohanty (hereinafter described as the 'deceased'), call him and attack him as soon as be comes out of his house, and they would join with him after the attack is given. Accused Hrudaya proceeded up to the house of the deceased and standing in front of his house called him, and abused him in filthy languages. The deceased came out of his house and asked him not to abuse as he had not done anything wrong. Accused Hrudaya, who had concealed a kati behind him, dealt a blow with that on the head of the deceased. Due to the blow the deceased sustained bleeding injury on his head, and fell down. He tried to get up, run away and cried for help. At that time the other accused persons armed with weapons joined accused Hrudaya, who shouted that the deceased was trying to run away and should be killed. Accused Kedar Behera dealt a blow on the left thigh of the deceased which caused bleeding injury, as a result of which he fell down. Accused Subhas Behera gave a blow on the left shoulder of the deceased causing bleeding injury. Hearing the cries of agony, the mother of the deceased came out of her house and raised an alarm and coming close to the deceased lifted his head and keeping the same on her lap sat there. She called her other son Dillip for help. At that time accused Nirmal Pal aimed a blow by means of the iron rod at the deceased and to ward off that blow, the mother of the deceased raised her hand and the blow instead of hitting the deceased hit her hand and caused a bleeding injury. Dillip (P. W. 1) came out of his house hearing the cry of his mother. He also raised an alarm. The accused persons took away the katis which they were holding. But accused Nirmal Pal threw the iron rod at the spot. Accused Hrudaya also could not take his pair of chappals which slipped out of his feet while he hurriedly went away. The brother of the deceased arranged a rickshaw and removed the deceased to M.K.C.G. Medical College Hospital with the help of his mother (P.W. 12), Sila Siva (P.W. 6), Lalmohan Behera (P.W. 7) and Lalit Behera (P.W. 8). The last three are eye witnesses to the occurrence. In the Casuality Department of the Hospital, the deceased was examined by a doctor who declared him dead and sent a casuality report to the police station. Dillip (P.W. 1) lodged an oral information at the Berhampur town P.S. The Investigating Officer seized an iron rod, which was a broken piece of an axle (M.O. I) and a pair of chappals (M.O. II). Some blood stained earth and sample earth were also seized. The mother of the deceased Hadi (P.W. 12) was also examined. Post-mortem was conducted at the M.K.C.G. Medical College Hospital. The medical officer who conducted autopsy over the dead body has stated that she found three incised and two small abrasions on the person of the deceased. One of the incised wounds was on the left temporal region on the scalp of size 4q x 1" x bone deep. Out of the other two incised wounds one was on the medial aspect of the left thigh of size 3" x 1/4" x 3" and the other was on the left shoulder joint of size 4 1/2" x 1/8" x 1/8". The abrasions were on the dorsum of the right hand and at the base of right index finger. On disSection, she further found that corresponding to the injury on the scalp the left temporalish muscle and temporal bone were cut. She opined that the death of the deceased was due to hemorrhage and shock resulting from the injury to the head, and the injury to the head was sufficient in the ordinary course of nature to cause death. On completion of investigation chargesheet was submitted under Ss. 302 and 324/34, IPC. The learned Sessions Judge framed charge under S. 302/34, IPC.

(3.) The case of accused Nirmal Pal and Kedar Behera was complete denial of the allegations. However, accused Subhas Behera and Hrudaya Parida took a stand that on the date of occurrence, they were proceeding on the Aska Road towards the house of accused Subhas Behera. At that time the deceased came near them being armed with a kati and aimed a blow at Subhas Behera. To ward off' that blow accused Hrudaya showed his left hand and the blow fall on his hand and caused a bleeding injury. While the deceased was aiming another blow at Subhas, he receded back and by bringing out a bhujali gave a blow on the head of the deceased by means of the bhujali in self-defence. On receiving that blow the deceased fell down and Subhas ran away and the other accused went away from the spot. All the accused persons also took a plea that the deceased and his family members were suspecting accused Subhas to have illicit relationship with the sister of the deceased, and for that the deceased was entertaining grudge against him and was trying to kill him. Accused Kedar Behera tried to convince the family members of the deceased that accused Sabhas had no such relation with the sister of the deceased; but none believed him and he was also accused to have a hand in that affair. Thus, while accused Nirmal Pal, Kedar Behera and Hrudaya Parida have denied the allegations levelled against them, the other accused Subhas Behera has come out with a case that he gave one blow on the head of the deceased by means of a Bhujali in self-defence.