SANIA SANATAN MALLIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The above appeals are directed against an order of conviction and sentence passed by the learned AddI. Sessions Judge, Jaipur in S.T. No. 112/13 of 1988. The appellants in Criminal Appeal No. 26 of 1992 have been convicted for commission of offence under Section 148 of the Penal Code and sentenced to imprisonment for one year whereas the appellants in Criminal Appeal No. 56 of 1992 have been convicted for commission of offence under Section 302/34 of the Penal Code and have been sentenced to imprisonment for life and pay fine of Rs. 2,000/-.

(2.) The case of the prosecution is that the informant Dan Mallik (P.W.1) and accused-appellant Sania Mallik are cousin brothers. They had some disputes relating to land and their houses are adjoining each other. On 25/10/1987 appellant Kirtan Mallick had planted a Papeya plant on his homestead close to front courtyard of P.W.1. On 26/10/1987 at about 6 O'clock in the morning the wife of P.W.1 who has been examined as P.W.4 while sweeping the courtyard damaged the Papeya plant as a result of which appellant Kirtan Mallik scolded her. It is also alleged that the appellant Kanhu and Bata abused P.W.4 as a result of which she raised alarm. When her husband Dan Mallik (P.W.1) came out of the house hearing hulla of his wife, he was surrounded by all the accused persons who were armed with deadly weapons and appellant Kirtan Mallik and Sania Mallik assaulted P.W.1 as a result of which he sustained grievous injuries. When Dan Mallik (P.W.1) raised alarm, deceased Tima Mallik and other witnesses who have been examined on behalf, of the prosecution during trial came to the rescue of Dan Mallik (P.W.1). At that point of time appellant Bhima Mallik shot an arrow to the deceased Tima Mallik. When the said deceased Tima Mallik after receipt of the injury caused by the arrow was trying to go away from the spot, he was assaulted by two other accused persons and fell down on the floor. It is alleged that thereafter the appellant Kirtan Mallik gave a Tenta blow on the head of the deceased Tima Mallik as a result of which he died later on. In course of such fight some other witnesses examined during trial on behalf of the prosecution received injuries. An F.I.R. having been lodged by P.W.1, initially the case was registered for commission of offences under Section 147, 148, 323, 324, 325, 149 of the Penal Code and after death of deceased Tima Mallik the same was again registered under Section 302 of the Penal Code and after investigation, charge-sheet was submitted for commission of offences under Sections 148, 302/149, 325/149, and 323/149 of the Penal Code. On examination of the evidence adduced before the court during trial the learned Additional Sessions Judge found the appellants in Criminal Appeal No. 26 of 1992 guilty of charge under Section 148 of the Penal Code whereas the appellants in Criminal Appeal No. 56 of 1992 were found guilty of charge under Section 302/34 of the Penal Code.

(3.) The plea I of the appellants is that a false case has been foisted against them. The specific plea of Kirtan Mallik is that P.W.1 called the other witnesses examined during trial and assaulted them whereafter in order to save, himself. he used twig in defence. The appellant Sania Mallik took the plea that since they were assaulted by the prosecution party, he resisted.