KAILASH CHANDRA SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellants and seven other co-accused persons, namely, Gaya Dehury, Mayadhar Dehury, Gangadhar, Dehury, Narahari Dehury, Madan Dehury, Rama Dehury and Binu Dehury stood trial in the Court of Mr. N. P. Mohapatra, Additional Sessions Judge, Cuttack, in Sessions Trial Case No. 121-C of 1976. The appellant Kailash Chandra Sahu stood charged under section 302 of the Indian Penal Code (the TCode, for short) with having committed murder of Bhima Behera (hereinafter referred to as the Tdeceased) at village Nalida on July 6, 1975 and the appellant Sulochana Dei described as Suli Dei in the evidence stood charged under section 302 read with section 109 of the Code for abutting the commission of the said offence. The appellants and the co-accused persons stood charged under section 148 of the Code for having formed an, unlawful assembly being armed with deadly weapons, such as, Bhalas, Tentas and lathis, in prosecution of the common object to kill the deceased and his sons and all of them also stood charged under section 302 read with section 149 of the Code for having committed the murder of the deceased as members of the unlawful assembly one of whom, namely, Kailash Chandra Sahu, had committed the murder of the deceased. The appellant Siba Sahu stood charged under section 323 of the Code for having voluntarily caused hurt to the deceased Bhima Behera. The appellant Baban Dehury stood charged under section 323 of the Code for voluntarily causing hurt to Narahari Behera (P.W. 1) and Nabakishore Behera (P.W. 4). The plea of the appellants and the co-accused persons was one of denial and false implication. The prosecution had come out with a story that when the deceased and his three sons, namely, Narahari Behera (P.W. 1), Bhagabat Sehera (P.W. 3) and Nabakishore Behera (P.W.4), were on the land purchased by them for the purpose of closing the flow of water, six of the appellants, namely Kailash Chandra Sahu, Siba Sahu, Bharat Sahu, Kangali Ghadei, Sulochana Dei and Brundaban Sahu came in a group being armed with lathis, two of them, namely, Suli Dei and Bharat, having each a Tenta also called Bhala in the locality, in addition and. after an exchange of words between Siba on the one hand and the deceased on the other with regard to possession of the land which was also being claimed by the appellants party the appellant Siba dealt a lathi blow on the waist of the deceased as a result of which he fell down. When P.W. 1 Fame running and started lifting his father, the appellant Suli Dei handed over a Tenta to the appellant Kailash and the latter pierced it into the chest of the deceased. The appellant Siba came near the deceased and saying that he had not died, extricated the Tenta from the body of the deceased and threw it nearby. Thereafter, it was alleged, on the call of the appellant Brundaban to come and kill the sons of the deceased and make his family extinct, the appellant Baban Dehury and six others came armed with lathis. The lathi in the hands of Suli Dei was snatched away by P.W.3 who whirled it in order to protect himself and his brothers. The appellant Baban assaulted P.Ws. 1 and 4 by the lathi he had. When P.W. 1 called aloud saying that his father died, the appellants and tne co-accused persons left the place. On the basis of the first information report (Ext. 1/1) lodged by P. W. 1, investigation was first taken up by the Officer-in- charge (P.W. 13) of the Barachana Police Station and later by P.W. 14, the successor Officer-in- charge of the same police station who completed it and placed a charge sheet against the appellants and the co-accused persons.

(2.) To bring home the charges to the appellants and the co-accused persons, the prosecution had examined fourteen witnesses. The appellants bad examined four witnesses in their defence. The appellant Brundaban Sahu and two other co-accused persons, namely, Gaya Dehury and Bina Dehury had taken the plea of alibi. The appellants also wanted to show that the land in question was in the possession of the appellant Brundaban Sahu.

(3.) On a consideration of the evidence, the learned Additional Sessions Judge found the appellants other than the appellant Baban Dehury guilty of the charges under sections 148 and 302 read with section 149 of the Code and convicted them thereunder. The appellant Kailash was found to be guilty of the charge of murder and convicted under section 302 of the Code: The appellant Suli Dei was found to be guilty of the charge of abetting the commission of the offence of murder and, convicted under section 302 read with section 109 of the Code. The appellant Siba was found to be guilty of the charge of causing hurt to the deceased and convicted under section 323 of the Code. The appellant Baban Dehury was found to be guilty of causing hurt to P.Ws. 1 and 4 and convicted under section 323 of the Code. Six of the appellants were sentenced to undergo imprisonment for life for their conviction under section 302 read with section 149 of the Code. No separate sentence was passed against them for the other offences for which they were convicted. The appellant Baban Dehury was sentenced to undergo rigorous imprisonment for a period of six months under section 323 of the Code. The other co-accused persons were found to be not guilty of the charges and acquitted. During the pendency of this appeal, the appellant Brundaban died and the appeal has abated in respect of that appellant in pursuance of the order No., 6 passed by this Court on June 21, 1982.