SUSHANTA BEHERA Vs. STATE

JUDGEMENT

(1.) Conviction made Under Section 302/34 of the Indian Penal Code, 1860 (in short, the 'IPC') and sentence of imprisonment for life as awarded by learned Addl. Sessions Judge, Sambalpur are asssiled by Sushania Behera and Dharmu Behera (hereinafter described as the 'accused'). They were charged with the offence of commission of murder in furtherance of common intention of one Tirthabasi Harijan (hereinafter described as the 'deceased').

(2.) BACKGROUND facts shorn of unnecessary details are as follows : Khira Dei, the sister of the informant Golbadan Harijan (PW 1) was given in marriage to the accused Sushanta Behera, who is the son of other accused Dharmu Behera. Due to frequent quarrel between the husband and wife, Khira came to her father's house. Accused Dharmu convened a meeting where it was decided by the Panchayat that the fault did not lie with the husband and the wife, but with their respective fathers. The deceased did not agree to allow his daughter to join her husband, although she was willing to do so. On 2 -5 -1987 accused Sushanta came to the house of the informant and requested him to allow his wife to go back with him. The request was turned down by the informant, as well as by his parents. Accused Sushanta was not happy with such attitude of the informant and the deceased, and threatened to teach them a lesson. On 4 -5 -1987 at about 10 A.M., the deceased had gone out to purchase a calf in the company of Kanhei Patra. At about 9 P. M. Kanhei Patra and Bhagia Patra came to the house of the informant and told him that the deceased use lying injured and had been brought to the house of Kanhai Patra. They requested PW 1 to come soon, as the injured was not able to talk. Immediately, the informant went to the house of Kanhei in the company of Kama! Lochan (PW 2), Ghanashyam Harijan (PW 3). his mother Raibari and wife Nandini, and found the injured tying there with injuries on the head and body. They gave some water. To the query of the informant as to what happened, the deceased stated that Sushanta and Dharmu restrained his movement and had assaulted him with lathis. Thereafter, the injured kept quiet and died. The informant came to learn from Charanga Sahu that at about 8 P. M., he heard the cry of the injured for half an hour. Though initially he did not take any notice, subsequently from the voice he could recognise that the injured was the deceased. He called Kanhei Patra, Rasananda Padhan and Bhagia Patra and went to the spot and brought the deceased to the house of Kanhei Patra therefrom. The FIR was lodged on 5 -5 -1987 at 8 P. M., investigation was undertaken and after completion thereof, charge -sheet was filed and accused persons faced trial. The accused persons took a plea of complete denial of the occurrence and false implication.

(3.) IN order to further its case, prosecution examined twelve witnesses. Four of them i. e. PWs 1, 2, 3 and 4 are stated to be the witnesses relating to dying declaration made by the deceased to the effect that the accused persons had assaulted him. To gauge whether there was any complicity on the part of the accused persons with the crime, three aspects were highlighted by learned trial Judge, namely, (i) motive, (ii) threat by accused Sushanta and (iii) oral dying declaration He held motive was sufficiently established though there was no document to show that there was any decision by the Panchayat. He referred to the FIR lodged immediately after the occurrence wherein mention was made about the threat given. He also believed the witnesses to the extent that threat was given by accused Sushanta. It was observed that in view or evidence of the informant and PW 4 to the effect that accused Sushanta had threatened PW 1 with the consequences, there was possibility of Sushant feeling aggrieved and committing the act as alleged. So far as dying declaration is concerned, learned trial Judge believed the same to be acceptable, though he found that PW 2 did not stand by what he had stated during investigation. Holding that the chain of circumstances clearly indicated to the guilt of accused, learned trial Judge convicted the accused persons and sentenced them as aforesaid.