NITYANANDA SETHI Vs. STATE OF ORISSA

JUDGEMENT

(1.) Appellants 1 to 5 were charged under section 302 read with 149 of the Indian Penal Code (for brevity I.P.C.). Appellant No. 6 Niranjan was specifically charged under section 302 of I.P.C. All the six appellants were charged under section 148 of I.P.C. Appellant No. 5 Srustidhar was charged under section 323 of I.P.C. The Sessions Judge has convicted appellant No). 6 Niranjan under section 304 Part-I of I.P.C. and sentenced him to undergo rigorous imprisonment for seven years. Appellants 1 to 5 have been convicted under section 304 Part-I read with section 149 of I.P.C. Each of them has been sentenced to undergo rigorous imprisonment for seven years. All the six appellants having found guilty under section 148 of I.P.C., have been sentenced to undergo rigorous imprisonment for two years. Appellant No. 5 Srustidhar has been convicted under section 323 of I.P.C. and sentenced to undergo rigorous imprisonment for six months. All the sentences are directed to run concurrently.

(2.) Briefly stated, the prosecution case was that the deceased Jaladhar was living at village Biripada along with his un-married daughter Basanti P.W. 1 She had lost her mother about fifteen years ago. Appellant Nos. 1 to 5 are the cousins of P.W. 1 being the sons of her maternal uncles. Their residential houses adjoin the house of the deceased. Appellant No. 6 Niranjan is no way related to them whose house was situated in front of the house of appellants 1 to 5 and the deceased Jaladhar intervened by public road. There was no other residential house locateed near their hoses. There was a common fence mixed with green trees and dry twigs between the homestead of appellant Nos. 1 to 5 and the deceased Jaladhar. On 1.8.1988 at about 4 p.m. there was heavy rain with a gale. A portion of the common fence fell down. after rains stopped, the appellant No. 4 Gadadhar came and cut Gaba tree which was standing in the common fence. When P.W. 1 challenged the cutting of the GobaT tree, appellant Gadadhar rebuked her in filthy language. The deceased Jaladhar who was sitting then on the wester side of varandah of his house protested at this and told the appellant Gadadhar that they should not have used such filthy words. There after quarrel ensued between the deceased and appellant Gadadhar. At this point of time, appellant No. 6 Niranjan rushed towards the house of the deceased, removed the peg made of sal wood near tati door and entered inside the premises. The other appellants namely appellants 1 to 5 also arrived at the spot being arm with lathis. They all removed the tati door and threw it. Appellant No. 6 Niranjan dealt a blow with the wooder peg on the head of the deceased who sustained bleeding injury and fell down. Thereafter, appellants 1 to 5 assaulted the deceased on his hands and legs with lathis, P.W. 1 was standing there, came to rescue of her father and at that time appellant No. 5 Srustidhar dealt a lathi blow on her right arm, right knee and back. She cried and shouted and out of fear entered inside her house. After the appellants left the spot, P.W. 1 came out of her house and found that there was profuse bleeding from the head of her father and was lying unconscious. She brought him to the verandah by dragging him by holding his hands. A few minutes Thereafter he died. There was again heavy down-pour of rains. After the rains subsided, she want to the house of P.W. 3 and P.W. 4 and informed that the appellants had killed her father. They told her that unless all the villagers agreed to go to her house, they would not go in that night. In the circumstances, she had to remain helpless in the night. On the next day morning P.Ws. 2, 3,4 and Sher co-villagers came. P.W. 1 went to Amarda Road police out-post accompanied by P.W. 5 to report about the incident. After it was reported, the police started investigation and the appellants were sent up for trial which has ended in their conviction as of ore said.

(3.) The appellants took the plea of denial.