BHASKAR CHANDRA ROUL Vs. STATE OF ORISSA

JUDGEMENT

(1.) All the appellants in the above three appeals have been convicted for commission of offences under Sections 148, 452/149, 302/149 and 427/149 of the Indian Penal Code. For conviction under Section 302/149 of the Penal Code the appellants have been sentenced to imprisonment for life and have also been directed to pay fine Rs. 10,000/-. For conviction under Section 427/149 of the Penal Code they have been sentenced to imprisonment for six months on each count and for conviction under Section 452/149 of the Penal Code they have also been sentenced to imprisonment for six months and to pay fine of Rs. 500/- each. As it appears from the record of the learned Additional District and Sessions Judge, Balasore that after conclusion of the trial both the appellants in Criminal Appeal No. 166 of 1998 wee added as accused persons on the basis of a petition filed under Section 319 of the Criminal Procedure Code though originally apart from the appellants in Criminal Appeal No. 148 of 1998 and Criminal Appeal No. 160 of 2001 one Bharat Das also faced trial. It further appears that the said accused Bharat Das after being released on bail absconded and the case was split up and the appellants in Criminal Appeal Nos. 148 and 166 of 1988 were tried.

(2.) The case of the prosecution is that on 14.4.90 at about 4.00 P.M. some persons of village Aliha were going to have Darshan of Lord Mahadev in the village Anija for celebrating 'Uda' jatra. On the way near village Pahadpur two of them namely, Gobinda Jena (P.W. 3) and Kasinath Sethi (P.W. 4) were prevented from going to the jatra and were threatened by Udaya Jena and Sanatan Munda. This incident was informed by P.Ws. 3 and 4 in their village to deceased Mahendra Maharana and some other persons. While the deceased and others were discussing about the incident standing on the road, it is alleged that the appellants came armed with Kata, lathi, bows, arrows, sword, Bhujali and Balam followed by 25 to 30 persons and started searching for the deceased. Out of fear, the deceased, P.W. 10 and some others entered inside the house of one Gobinda Jena (P.W. 3) and bolted the door from inside. It is further alleged that thereafter accused Sanatan Munda, Udaya Jena, Bharat Das and Anama Jena climbed over the house of Gobinda Jena pulled out the straws from the roof and found the deceased and others concealing themselves inside the house. Two other accused persons broke down a portion of the wall and thereafter broke open the front doors of the house and entered inside. It is also alleged that the deceased was dragged out of the room by the accused persons and was assaulted by accused Bharat Das by means of Balam. It is also the prosecution case that accused Prasanna Das assaulted by means of sword, Anama by means of Kata, Sanatan by Kata and other accused by means of Lathi. After the deceased succumbed to the injuries on the spot, accused persons left the place. Thereafter, the matter was reported to the police by P.W. 3 and investigation was taken up. On completion of investigation, charge sheet was filed and the accused persons faced trial for commission of offences under Section 302, 452, 427 read with Sections 148 and 149 of the Penal Code.

(3.) Shri D. Nayak, the learned counsel appearing for the appellants in Criminal Appeal No. 148 of 1998 challenged the said order of conviction and sentence on the ground that the evidence of the eye-witnesses relating to the incident are full of contradictions and, therefore, no reliance can be placed on their version. In order to substantiate this argument, the learned counsel drew attention of the Court to the depositions of P.Ws. 8, 9, 10 and 11. He further contended that the injuries found during post mortem do not correspond to the manner of injuries stated to have been inflicted by the accused persons in course of the incident as stated by the eye witnesses. According to shri Nayak, the doctor conducting the post mortem examination having not found the corresponding injuries on the body of the deceased as has been projected by the prosecution witnesses, the evidence of the eye-witnesses should be disbelieved. It is further contended that even accepting the evidence of the eye-witnesses, it is found that the fatal blow was given by accused Bharat Das, who is not appellant before this Court and other injuries found on the body of the deceased cannot cause death and, therefore, the conviction of the appellants under Section 302 of the Penal Code is not sustainable. Shri Nayak further contended that though allegations are made the eye-witnesses that some of the persons who are appellants before this Court assaulted the deceased by means of Lathi, no corresponding injuries were found oh the body of the deceased. It is also contended that there is no allegation of assault by some of the accused persons, but they have been convicted for commission of offences as stated above with the help of Section 149 of the Penal Code and there being no evidence of prior meeting of mind, they could not have been convicted with the help of Section 149 of the Penal Code.