BIDYADHAR DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellants (hereinafter referred to as T1accusedT1) faced trial for allegedly having caused homicidal death of one Dinabandhu Panda (hereinafter referred to as the deceased), and for having assaulted Ghanshyam Acharya (P.W. 1) (hereinafter referred to as T1the injured) with an intention to commit murder, in furtherance of their common intention. Five others were also tried but they were acquitted by the learned Second Additional Sessions Judge, Berhampur (hereinafter referred to as T1the trial Judge).

(2.) Facts situation, according to prosecution, as unfolded during is as follows the deceased is the brother-in-law of the injured (P.W. 1). They were whole-sellers of vegetables so was Niranjan Acharya (P.W. 8). They used to carry on business in Biohazard area of Berhampur town locally known as P0 Market. Accused-appellants are retailers in vegetables and they also carried on business in the said market. Since accused persons were not regular in liquidating their credit dues, there was ill feeling between P.W. 1 and the deceased on one hand, and the accused persons on other. On 11.9.1987, the fateful day, at about 7 a.m. in the morning while P.W. 1 was in his shop accused Bidyadhar and Bahaman came and demanded that they should be given vegetables on credit. But P.W. 1 refused to extend such facility, as they had not cleared up their earlier dues. Both the accused persons threatened to teach a lesson. At about 12.30 p.m. while the deceased and P.W. 1 were going to their respective houses via Aska road to take lunch, the accused persons who were concealing themselves near a Mandap near Kansarisahi, suddenly came out and surrounded them. They shouted to kill the deceased and P.W. 1. Thereafter the accused assaulted the deceased and P.W. 1 by means of axe, Kati etc., as a result of which the deceased succumbed to injuries, and P.W. 1 sustained large number of grievous injuries on different parts of the body and fell down unconscious: P.W. 8, the brother, of P.W. 1 who was coming behind them rushed to the spot. Paws. 5, 6 and 7 who were coming from the opposite dereliction of the deceased also saw the assaults on the deceased and P.W. 1. They shifted the deceased and the injured to the M.K.C.G. Medical College, Berhampur. P.W. 8 lodged information at Bodobazar P.S. On receipt of information, investigation was undertaken, bloodstained earth and blood-stained napkin were seized from the spot and dead body was sent for post-mortem examination. Wearing apparels of the injured were seized. Accused persons absconded and subsequently accused Narayan was arrested on 29.10.1987 at Kesharpur Bus Stand. The other two accused namely, Bidyadhar and Bhagaban could not apprehended as they were found absconding till submission of charge sheet. Subsequently, they were arrested at Sutra in Gujarat on 24.5.1989. The accused persons took the stand that the deceased and the injured were the members of whole-salers association. Since the accused persons protested against illegal actions, mis-management and discriminatory attitude of P.W. 1, the deceased, and other wholesalers, there was strained relationship between them, Core that they have been falsely implicated.

(3.) In order to further its case, prosecution examined twelve witnesses. In addition to P.W. 1, the injured, P.WS 5, 6, 7 and 8 were stated to be the eye witnesses who witnessed the assault on the deceased and P.W. 1. Background of dispute has been highlighted by learned trial Judge. It was noticed that three months prior to the occurrence accused came to P.W. 1 to collect subscription for a deity locally known as TTKaula Mas and P.W. 1 being the President paid Rs.51/- by behalf of the Association. The accused persons were dissatisfied as, according to them, the amount was very low. They threatened to teach him a lesson in future. Again two months prior to the alleged occurrence, accused Bidydhar and Bhagaban retained to take away the life of one Pratap Chandra Patro, an active member of the association and abused him resulting in misunderstanding between P.W. 1 and the aforesaid accused persons: Subsequently 20 to 25 days prior to the alleged occurrence, accused Bidyadhar asked P. W. I to give his consent for release of his brother on parole, which was a life convict Since P.W. 1 expressed his inability, accused Bidyadhar bore grudge towards P.W. 1. As indicated above, in the morning of the fateful day, there was again dispute between P.W. 1 and accused Bidyadhar and Bhagaban. This is sufficient to conclude that, Relationship between the accused persons and the deceased was strained. A conspiracy had been hatched to take away the lives of the deceased and P.W. 1, before ,a hair cutting saloon and the conversation in that regard was over-heard by P.W. 10. On hearing about the dubious plan, P.W. 10 wanted to inform P.W. I but could not get him. When the deceased and P.W. 1 had reached the spot near Mandap accused persons who were concealing themselves, suddenly came out being armed with Kati, Khanda, and started assaulting indiscriminately on both the deceased and P.W. 1. Both were taken to the Hospital. As indicated above, the deceased was declared dead, whereas the P.W. 1, injured in a had shape was admitted in the Orthopedics Ward and remained there as an indoor patient for nearly two months. His left foot was revered from the ankle joint and it was almost hanging, when he was shifted to the hospital. Various surgical operations were necessary. An iron rod was put inside his left hand and his left foot was imputed to save his life. The accused persons pleaded false implication.